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EXHIBIT 10.62
CANYON RANCH-LENOX
FIRST AMENDMENT TO LEASE AGREEMENT
This FIRST AMENDMENT TO LEASE AGREEMENT (the "Amendment") is made and
entered into effective as of the 31st day of December, 1998, between WINE
COUNTRY HOTEL, LLC, a Delaware limited liability company, d/b/a VINTAGE RESORTS,
LLC ("Lessee") and CRESCENT REAL ESTATE FUNDING VI, L.P, a Delaware limited
partnership ("Lessor").
RECITALS:
WHEREAS, Canyon Ranch-Bellefontaine Associates, L.P., a Delaware
limited partnership ("Canyon Ranch") and Lessee entered into that certain Lease
Agreement dated as of December 11, 1996 (the "Lease"), pursuant to which Lessee
leased from Canyon Ranch a resort facility and related assets located in
Berkshire County, Massachusetts, and known as the "Canyon Ranch-Lenox"
(hereinafter called the "Leased Property"); and
WHEREAS, pursuant to that certain Assignment and Assumption of Master
Lease dated as of December 11, 1996, all of Canyon Ranch's interest and estate
as lessor under the Lease was assigned to Lessor, who thereupon assumed all of
Canyon Ranch's liabilities and obligations under the Lease; and
WHEREAS, Lessor and Lessee agreed that if Lessor made substantial
capital investments in the Leased Property, the Lease would be amended to
increase the amount of rental payable thereunder and Lessor has made substantial
capital investment in the Leased Property; and
WHEREAS, Lessor has agreed to delete certain provisions of the Lease
that impose minimum net worth requirements on the Lessee and limit the
distributions by Lessee of its earnings to its beneficial owners in
consideration of the delivery of a guaranty of Lessee's obligations under the
Lease by Crescent Operating, Inc. ("COI"); and
WHEREAS, Lessor and Lessee mutually desire to quantify the value of
working capital associated with the Leased Property and transferred from Lessor
to Lessee upon the commencement of the term of the Lease and to evidence their
mutual understanding and agreement of the value of working capital associated
with the Leased Property to be redelivered to Lessor by Lessee at the expiration
or earlier termination of the Lease; and
WHEREAS, Lessor and Lessee desire to amend the Lease to increase the
rental payable thereunder, to delete the provisions in the Lease described
above, to evidence their understanding regarding working capital and to make
certain other amendments thereto as hereinafter provided.
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AGREEMENT:
NOW THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged by the parties hereto, the
parties hereby agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Lease.
2. Amendments to Lease. The Lease is hereby amended as follows:
a. Section 4.1 of the Lease is modified to increase the Base
Rent as follows: (i) for the period of August 18, 1998 through December
31, 1998 (the "1998 Period"), by the amount of $331,846.00 per year
during the Term and (ii) effective as of January 1, 1999 by the
additional amount of $568,154.00 per year during the Term. The
additional Base Rent for the 1998 Period is due and payable upon the
effective date of this Amendment and the Base Rent payable under the
Lease on a monthly basis, effective as of January 1, 1999 is
$275,000.00 per month.
b. The period is deleted at the end of the next to last
sentence of Section 4.2(f) of the Lease and the following clause is
inserted after the words "from Lessee": "; provided, in no event shall
Lessor be required to refund any portion of the Guaranteed Percentage
Rent (as hereinafter defined) previously paid by Lessee to Lessor."
c. A new subsection (i) is inserted at the end of Section 4.2
of the Lease, which shall read in its entirety as follows:
(i) Anything in this Lease to the contrary
notwithstanding, eighty-five percent (85%) of the Percentage
Rent payable in any quarter during the term of this Lease
(herein called the "Guaranteed Percentage Rent") shall not be
subject to adjustment under Section 4.2(f) or Section 4.2(h)
hereof.
d. In consideration of the execution and delivery by COI of a
guaranty of all of Lessee's obligations under the Lease, Section 7.7
and Section 7.9 of the Lease are hereby deleted in their entirety and
shall be of no further force and effect.
e. Section 7.10 of the Lease is deleted in its entirety and
the following inserted in lieu thereof:
Section 7.10. Working Capital. At the commencement of the
term of this Lease, there existed working capital pertaining
to the Leased Property (the "Working Capital") in the initial
aggregate positive balance of $468,531.00 (the "Initial
Working Capital Balance"). Within thirty (30) days after the
date of expiration or earlier termination of this Lease,
Lessor and Lessee will work together in good faith to
determine the balance of Working Capital as of such date
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(the "Ending Working Capital Balance"). If the Ending Working
Capital Balance is less than the Initial Working Capital Balance,
Lessee shall pay over to Lessor cash in the amount of such
deficiency, within thirty (30) days of such determination. If the
Ending Working Capital Balance exceeds the Initial Working Capital
Balance, Lessor shall pay over to Lessee cash in the amount of such
excess within thirty (30) days of such determination. Additionally,
both the Initial Working Capital Balance and the Ending Working
Capital Balance shall be calculated without the inclusion of any "in
circulation" operating or consumable supplies ("In-Circulation
Supplies"). Both Lessee and Lessor agree that the In-Circulation
Supplies represent items in use which Lessee does not include on its
balance sheet as of the Commencement Date. Lessee and Lessor further
agree that although no accounting value has been placed on
In-Circulation Supplies, such supplies have value and Lessee agrees
to have reasonable amounts of In-Circulation Supplies on hand in a
quantity and quality customary for a property such as the Leased
Property.
3. General Provision regarding Working Capital. Notwithstanding any
other provision of the Lease which is to the contrary or which is not consistent
with Section 2.e above, including without limitation, Section 7.4 of the Lease,
Lessor and Lessee agree that Section 2.e above represents the general business
terms under which Lessee has taken over the In-Circulation Supplies and working
capital of the Leased Property and the general terms under which Lessee will
return In-Circulation Supplies and working capital to Lessor at the expiration
or earlier termination of the Lease.
4. Modification Supersedes. Except as modified hereby, the Lease
remains in full force and effect, with no other modifications thereto. If there
arises by virtue of this Amendment any conflict between any provision of this
Amendment and any provision of the Lease, the provisions hereof shall supersede
any such conflicting provision of the Lease, but only to the extent of such
conflict, and all of the provisions of the Lease are hereby modified as
necessary so as to be consistent with the terms of this Amendment.
5. Successors and Assigns. This Amendment shall be binding upon and
shall inure to the benefit of Lessor and Lessee and their respective successors
and permitted assigns.
6. Multiple Counterparts. This Amendment may be executed in multiple
counterparts, each of which is to be deemed an original for all purposes, and in
making proof of this Amendment it shall not be necessary to produce more than
one (1) counterpart hereof. A facsimile or similar transmission of a counterpart
signed by a party hereto will be regarded as signed by such party for purposes
hereof.
7. Captions. The captions, headings and arrangements used in this
Amendment are for convenience only and do not in any way affect, limit, amplify
or otherwise modify the terms and provisions hereof.
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8. Representations of Lessee. Lessee represents and warrants to Lessor
that (i) Lessee is the sole legal and beneficial owner of the leasehold estate
under the Lease and (ii) Lessee has the full power and authority to enter into
this Amendment without the joinder or consent of any other party.
9. Representations of Lessor. Lessor represents and warrants to Lessee
that Lessor has the full power and authority to enter into this Amendment.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment to be
effective as of the day and year first above written.
LESSOR:
CRESCENT REAL ESTATE FUNDING VI, L.P., a
Delaware limited partnership
By: CRE Management VI Corp., a Delaware
corporation, General Partner
By:
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Name:
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Title:
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LESSEE:
WINE COUNTRY HOTEL, LLC, a Delaware
limited liability company, d/b/a VINTAGE
RESORTS, LLC
By:
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Name:
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Title:
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