EXHIBIT 10.52
First Amendment to Lease Agreement between
LLB F-Inn, L.L.C. and LLB Tenant Corporation
relating to the Fairfield Inn - Little Xxxx Xxxxx
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (the "First Amendment") is made
as of the 17th day of November, 2000, by and between LLB F-INN, L.L.C., a
Delaware limited liability company ("Landlord"), and LLB TENANT CORPORATION, a
Delaware corporation ("Tenant").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Landlord and Tenant have entered into that certain Lease
Agreement dated as of October 12, 2000 (the "Original Lease"), for the leasing
of that certain Fairfield Inn hotel property located in Little Xxxx Xxxxx,
Orlando, Florida, and more particularly described in the Original Lease; and
WHEREAS, Landlord and Tenant desire to amend certain terms and
conditions of the Original Lease.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the mutual receipt and
legal sufficiency of which are hereby acknowledged, Landlord and Tenant hereby
agree as follows:
1. Recitals. The foregoing recitals are correct and complete and are
hereby incorporated into this First Amendment by this reference.
2. Defined Terms. Capitalized terms used in this First Amendment and
not defined elsewhere herein shall have the meanings set forth in the Original
Lease.
3. Amendments to Original Agreement. From and after the date hereof the
Original Lease shall be amended as follows:
(a) Section 3.5 of the Original Lease shall be deleted in its entirety
and, in lieu thereof, the following shall be inserted:
"3.5 Security for Tenant's Performance.
(a) On the Transfer Date, Tenant shall deposit with
Landlord the sum of Nine Hundred Fifty-four Thousand Seventy-nine and
38/100 Dollars ($954,079.38) (the "Security Deposit"). All interest
earned on the Security Deposit shall accrue for the benefit of Landlord
and shall be paid to Landlord. Landlord shall not be required to
maintain the Security Deposit separate from its general accounts and
may commingle the Security Deposit with the general accounts of CHLP.
(b) Tenant acknowledges that the security deposits
with respect to the Collective Leased Properties (collectively, the
"Collective Security Deposit") constitute security for the faithful
observance and performance by Tenant of all the terms, covenants and
conditions of this Agreement and the Other Leases by Tenant and any
Affiliated Person of Tenant that is a tenant under the Other Leases to
be observed and performed. If any Event of Default shall occur and be
continuing under this Agreement, Landlord may, at its option and
without prejudice to any other remedy which Landlord may have on
account thereof, appropriate and apply, first, the amount of the
Security Deposit and, second, the amount of such Collective Security
Deposit as may be necessary to compensate Landlord toward the payment
of the Rent or other sums due Landlord under this Agreement as a result
of such breach by Tenant. Additionally, Landlord may, if any Event of
Default shall occur and be continuing under the Other Leases,
appropriate and apply the Security Deposit after first applying the
security deposit under the Other Lease that is in default. It is
understood and agreed that neither the Security Deposit nor the
Collective Security Deposit is to be considered as prepaid rent, nor
shall damages be limited to the amount of the Collective Security
Deposit.
(c) Notwithstanding anything to the contrary
contained herein, if an Entity wholly-owned and controlled by CHLP, or
another Entity selected by CHLP which is an Approved Substitute (as
defined in the Owner Agreement) (together, a "Qualified Entity"), has
not become the tenant of the Leased Property, as provided in that
certain Letter Agreement dated October 30, 2000 by and between CHLP and
Marriott, either by assuming this Agreement or entering into a new
lease for the Leased Property in replacement of this Agreement, and
entered into a management agreement for the operation of the Leased
Property with Marriott or a Subsidiary or Affiliated Person as to
Marriott ("Marriott-Manager"), on or before December 31, 2001, the then
unapplied balance of the Security Deposit shall immediately be paid by
Landlord by wire transfer to Tenant. If a Qualified Entity has become
the tenant of the Leased Property and entered into a management
agreement with a Marriott Manager as aforesaid on or before December
31, 2001, then the Security Deposit shall be delivered by Landlord to
CHLP and Landlord shall cause CHLP to simultaneously enter into its
written undertaking to pay the same to the Marriott Manager immediately
upon the termination of the management agreement (less any amount that
the Marriott Manager may be liable for as a result of its default under
the management agreement). Tenant shall not look to any Hotel Mortgagee
for the return of the Security Deposit except to the extent the
Security Deposit is actually paid and delivered to such Hotel
Mortgagee."
(b) Section 9.3 of the Original Lease (captioned "General Provisions")
shall be deleted in its entirety and, in lieu thereof, the following shall be
inserted:
"9.3 General Provisions. The individual Hotel's allocated
chargeback/deductible for general liability insurance and worker's
compensation insurance shall not exceed $100,000 unless such greater
amount is agreeable to both Landlord and Tenant. The individual Hotel's
property insurance deductible shall not exceed $250,000 unless such
greater amount is agreeable to both Landlord and Tenant, or if a higher
deductible for high hazard risks (i.e., wind or flood) is mandated by
the insurance carrier. Excluding earthquake insurance and worker's
compensation insurance, all insurance policies pursuant to this Article
9 shall be issued by insurance carriers having a general policy
holder's rating of no less than A-/VII in Best's latest rating guide
and all excess insurance policies above Twenty-Five Million Dollars
($25,000,000) shall be issued by insurance carriers having a rating of
not less than B+/VII, and shall contain clauses or endorsements to the
effect that (a) Landlord shall not be liable for any insurance premiums
thereon or subject to any assessments thereunder, and (b) the coverages
provided thereby will be primary and any insurance carried by any
additional insured shall be excess and non-contributory to the extent
of the indemnification obligation pursuant to Section 9.5 below. All
such policies described in Sections 9.1(a) through (e) shall name
Landlord, CNL Hospitality Properties, Inc., and any Hotel Mortgagee as
additional insureds, loss payees, or mortgagees, as their interests may
appear and to the extent of their indemnity. All property loss
adjustments shall be payable as provided in Article 10. Tenant shall
deliver certificates thereof to Landlord prior to their effective date
(and, with respect to any renewal policy, prior to the expiration of
the existing policy), which certificates shall state the nature and
level of coverage reported thereby, as well as the amount of the
applicable deductible. Upon Landlord's request, original copies of said
policies shall be made available for Landlord's review at Tenant's
corporate headquarters during normal business hours. All such policies
shall provide Landlord (and any Hotel Mortgagee if required by the
same) thirty (30) days prior written notice of any material change or
cancellation of such policy. In the event Tenant shall fail to effect
such insurance as herein required, to pay the premiums therefor or to
deliver such certificates to Landlord or any Hotel Mortgagee at the
times required, Landlord shall have the right, but not the obligation,
subject to the provisions of Section 12.5, to acquire such insurance
and pay the premiums therefor, which amounts shall be payable to
Landlord, upon demand, as Additional Charges, together with interest
accrued thereon at the Overdue Rate from the date such payment is made
until (but excluding) the date repaid."
(c) Section 9.5 of the Original Lease shall be deleted in its entirety
and, in lieu thereof, the following shall be inserted:
"9.5 Indemnification of Landlord. Except as expressly provided
herein, Tenant shall protect, indemnify and hold harmless Landlord for,
from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and reasonable expenses (including,
without limitation, reasonable attorneys' fees), to the maximum extent
permitted by law, imposed upon or incurred by or asserted against
Landlord by reason of: (a) any accident, injury to or death of persons
or loss of or damage to property of third parties arising from an
occurrence or incident which took place during the Term on or about the
Leased Property or adjoining sidewalks or rights of way under Tenant's
control, and (b) any use, misuse, condition, management, maintenance or
repair by Tenant or anyone claiming under Tenant of the Leased Property
or Tenant's Personal Property during the Term or any litigation,
proceeding or claim by governmental entities to which Landlord is made
a party or participant relating to such use, misuse, condition,
management, maintenance, or repair thereof to which Landlord is made a
party; provided, however, that Tenant's obligations hereunder shall not
apply to any liability, obligation, claim, damage, penalty, cause of
action, cost or expense arising from any gross negligence or willful
misconduct of Landlord, its employees, agents, contractors or invitees.
Tenant, at its expense, shall defend any such claim, action or
proceeding asserted or instituted against Landlord covered under this
indemnity (and shall not be responsible for any duplicative attorneys'
fees incurred by Landlord) or may compromise or otherwise dispose of
the same. Notwithstanding the foregoing, indemnification with respect
to Hazardous Substances is governed by Section 4.3. The obligations of
Tenant under this Section 9.5 shall survive the termination of this
Agreement for a period of three (3) years."
(d) Section 15.2(a) of the Original Lease shall be deleted in its
entirety and, in lieu thereof, the following shall be inserted:
"(a) Landlord shall transfer its rights hereunder to the
Security Deposit to the successor landlord and the Security Deposit
with respect to the Leased Property shall continue to be held on the
terms and conditions set forth in Section 3.5;"
(e) Section 22.10 of the Original Lease shall be deleted in its
entirety and, in lieu thereof, the following shall be inserted:
"22.10 Notices.
(a) Any and all notices, demands, consents, approvals,
offers, elections and other communications required or permitted under
this Agreement shall be deemed adequately given if in writing and the
same shall be delivered either in hand or by mail or Federal Express or
similar expedited commercial carrier, addressed to the recipient of the
notice, postpaid and registered or certified with return receipt
requested (if by mail), or with all freight charges prepaid (if by
Federal Express or similar carrier).
(b) All notices required or permitted to be sent hereunder
shall be deemed to have been given for all purposes of this Agreement
upon the date of receipt or refusal, except that whenever under this
Agreement a notice is either received on a day which is not a Business
Day or is required to be delivered on or before a specific day which is
not a Business Day, the day of receipt or required delivery shall
automatically be extended to the next Business Day.
(c) All such notices shall be addressed,
if to Landlord to:
LLB F-Inn, L.L.C.
c/o CNL Hospitality Partners, L.P.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
with a copy to:
Lowndes Drosdick Xxxxxx Xxxxxx and Xxxx, P.A.
000 Xxxxx Xxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Esq.
if to Tenant to:
x/x Xxxxxxxx Xxxxxxxxxxxxx, Inc.
00000 Xxxxxxxx Xxxx, Xxxx. 52-924.11
Xxxxxxxx, Xxxxxxxx 00000
Attn: Treasurer
and
c/o Marriott International, Inc.
00000 Xxxxxxxx Xxxx, Xxxx. 52-911.10
Xxxxxxxx, Xxxxxxxx 00000
Attn: Lodging Sr. V.P. Finance
with a copy to:
Marriott International, Inc.
00000 Xxxxxxxx Xxxx, Xxxx. 52-923.00
Xxxxxxxx, Xxxxxxxx 00000
Attn: Lodging Operations Attorney
(d) By notice given as herein provided, the parties hereto
and their respective successors and assigns shall have the right from
time to time and at any time during the term of this Agreement to
change their respective addresses effective upon receipt by the other
parties of such notice and each shall have the right to specify as its
address any other address within the United States of America."
(f) Landlord and Tenant have agreed to increase the Minimum Rent
payable by Tenant to Landlord under the Original Lease. Therefore, in Exhibit A
of the Original Lease (captioned "Minimum Rent") the words "Two Hundred Forty
Thousand Two Hundred Eighty-eight and 46/100 Dollars ($240,288.46)" are hereby
deleted and, in lieu thereof, the words "Two Hundred Fifty Thousand Four Hundred
Forty-five and 83/100 Dollars ($250,445.84)" are hereby inserted.
4. Transfer of Liquor License. As of the date of this First Amendment,
both Landlord and Tenant are the named holders/permittees under State of Florida
Temporary Liquor License No. BEV5808147, dated October 17, 2000 (the "Liquor
License"). Landlord has elected to not be included as a permittee on and under
the Liquor License, and therefore Tenant shall be obligated to file and pursue
with the State of Florida Department of Business and Professional Regulation the
transfer of the Liquor License sufficient to terminate and exclude Landlord as a
named permittee. Tenant shall be obligated to pursue and accomplish the
foregoing as soon as possible, using commercially reasonable diligence. In
addition to the foregoing, Tenant shall protect, indemnify and hold harmless
Landlord for, from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and reasonable expenses (including, without
limitation, reasonable attorneys' fees) to the maximum extent permitted by law,
imposed upon or incurred by or asserted against Landlord by reason of the
inclusion of the Landlord as a permittee or holder under the Liquor License;
provided, however, that Tenant's obligations hereunder shall not apply to any
liability, obligation, claim, damage, penalty, cause of action, cost or expense
arising from any gross negligence or willful misconduct of Landlord, its
employees, agents, contractors or invitees.
5. Counterparts. This First Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6. Governing Law. This First Amendment shall be interpreted, construed,
applied and enforced in accordance with Section 22.13 of the Original Lease.
7. Section and Other Headings. The headings contained in this First
Amendment are for reference purposes only and shall not in any way affect the
meaning or interpretation of this First Amendment.
8. Entire Agreement. The Original Lease, as amended by this First
Amendment, contains and embodies the entire agreement of the parties hereto, and
no representations, inducements, or agreements, oral or otherwise, not contained
in the Original Lease, as amended by this First Amendment shall be of any force
or effect. This First Amendment may not be modified or changed in whole or in
part in any manner other than by an instrument in writing duly signed by the
parties hereto. Except as modified by this First Amendment, the terms and
provisions of the Original Lease, which are incorporated herein by this
reference, are hereby reaffirmed and shall be binding upon the parties hereto.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have caused this First Amendment to be
executed as a sealed instrument as of the date first above written.
LANDLORD:
LLB F-INN, L.L.C.
By: CNL LLB F-Inn Management Corp.,
a Delaware corporation
its managing member
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President
TENANT:
LLB TENANT CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
