FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LEASE AGREEMENT
FIRST AMENDMENT TO SECOND
AMENDED AND RESTATED LEASE AGREEMENT
AMENDED AND RESTATED LEASE AGREEMENT
This First Amendment to Second Amended and Restated Lease Agreement (this “Amendment”) is made
as of the 1st day of March, 2008, between MHC TT Leasing Company, Inc., a Delaware corporation
(“Landlord”), and Thousand Trails Operations Holding Company, L.P., a Delaware limited partnership
(“Tenant”).
RECITALS
A. Landlord and Tenant entered into that certain Second Amended and Restated Lease Agreement
dated as of January 1, 2008 (such Lease Agreement as heretofore amended, including all of the
Exhibits thereto, being herein called the “Lease”), whereby Landlord leased to Tenant the Premises
described in the Lease.
B. An affiliate of Landlord has acquired the Xxxxxx Creek Preserve, and Landlord and Tenant
desire to amend Exhibit A-1(a) to the Lease to add the Xxxxxx Creek Preserve as part of the
Premises.
C. MHC Tropic Winds, L.L.C., a Delaware limited liability company (“MHC Tropic Winds”), has
leased to Landlord certain recreational vehicle sites at Tropic Winds, located at 0000 Xxxxx Xxxx
Xxxx, Xxxxxxxxx, Xxxxx, as set forth on Exhibit C attached hereto (the “Tropic Winds
Sites”), pursuant to that certain Lease Agreement dated as of February ___, 2008, by and between
MHC Tropic Winds and Landlord.
D. Landlord and Tenant desire to amend the definition of “Premises” in the Lease to add the
Tropic Winds Sites on the terms set forth below.
E. Landlord and Tenant desire to Section 38(f) of the Lease as set forth below.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. Amendment of Exhibit A-1(a). Exhibit A-1(a) to the Lease is hereby amended
by adding the property described on Exhibit A attached hereto (the “Xxxxxx Creek Preserve”)
as part of the Premises.
2. Tropic Winds Sites. The definition of “Premises” as set forth in the Lease is
hereby amended to add the Tropic Winds Sites located at Tropic Winds, 0000 Xxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxxx 00000 and depicted on Exhibit B attached to this Lease, on the terms set
forth below.
2.1 Each business day, Tenant agrees to notify Landlord, in writing, of the names of the
individuals occupying Tropic Winds Sites, together with any other information as may be
reasonably requested by Landlord.
2.2 Tenant shall make the Tropic Winds Sites available for its participants to use for
short-term, limited stays only, and shall not place, construct or install any structures or
other improvements on the Tropic Winds Sites.
2.3 Notwithstanding anything to the contrary in the Lease, either Landlord or Tenant may
elect to terminate the Lease solely with respect to the Tropic Winds Sites on December 31,
2008, and on December 31 of each year thereafter by providing written notice of such election
to the other party not less than thirty (30) days before the effective date of such
termination.
2.4 Solely with respect to the Tropic Winds Sites, Tenant shall pay to Landlord the sum
of Three Dollars ($3.00) per day per Tropic Winds Site occupied as Additional Rent. Said
payments shall be made on a monthly basis, upon submission of invoices by Landlord to Tenant.
3. Amendment of Section 38(f). Section 38(f) of the Lease is hereby amended in its
entirety to read as follows:
Tenant shall not nor shall Tenant permit any of its Subsidiaries directly or indirectly
to declare, order, pay, make or set apart any sum for any Restricted Junior Payment,
except (i) for distributions in cash from Tenant’s operating account to Tenant’s
equity holders in an aggregate amount each calendar year equal to (x)(1) the amount of
taxable income of Tenant allocated to its equity holders for such calendar year
multiplied by (2) the combined maximum federal and state income tax rate to be applied
to such taxable income (calculated by using the highest maximum combined marginal
federal and state income tax rates for an individual resident of the relevant state of
residence of Tenant’s principal indirect individual equity holder in the states where
Tenant has taxable income and taking into account the deductibility of state income tax
for federal income tax purposes) and (y) an additional aggregate amount of $200,000 in
any twelve month period; (ii) a distribution or loan to PA, at the sole discretion of
PA, as of the date hereof in an amount equal to $4,000,000; and (iii) a distribution or
loan to PA, at the sole discretion of PA, on the third (3rd) anniversary of the Date of
Restatement in an amount equal to $2,000,000, but only to the extent that such amount
does not exceed the Available Cash, provided that Landlord hereby permits Tenant to set
apart an amount equal to $55,555 per month for the thirty six (36) months ending
12/31/2010 into a separate account which funds shall be usable for the purpose of
making such $2,000,000 distribution to PA (each distribution contained in clauses (i),
(ii) and (iii) being a “Permitted Distribution”). Landlord and Tenant acknowledge and
agree that the Permitted Distributions are not intended to be compensation to the
owners of Tenant’s parent. Conditions precedent to a Permitted Distribution are (i) no
Event of Default is existing at the time of the Permitted Distribution and (ii) prior
approval of the Permitted Distribution by the Board of Directors (or other governing
bodies) of PA and Tenant has been obtained.
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4. Integration of Lease and Controlling Language. This Amendment and the Lease shall
be deemed to be, for all purposes, one instrument. In the event of any conflict between the terms
and provisions of this Amendment and the terms and provisions of the Lease, the terms and
provisions of this Amendment, in all instances, shall control and prevail.
5. Ratification. Except as specifically amended and modified hereby, the Lease shall
be and shall remain unchanged and in full force and effect in accordance with its terms, and, as
the Lease is amended and modified hereby, the Lease is hereby ratified, adopted and confirmed.
6. Severability. If any provision of this Amendment or the application thereof to any
person or circumstance is or shall be deemed illegal, invalid or unenforceable, the remaining
provisions hereof shall remain in full force and effect and this Amendment shall be interpreted as
if such legal, invalid or unenforceable provision did not exist herein.
7. Entire Agreement. This Amendment and the Lease contain the entire integrated
agreement between the parties respecting the subject matter of this Amendment and the Lease, and
supersede all prior and contemporaneous understandings and agreements, other than the Lease,
between the parties respecting the subject matter of this Amendment and the Lease.
8. Counterparts. This Amendment may be executed in counterparts, each of which shall
be deemed to be an original and all of which, when taken together, shall constitute a fully
executed instrument.
(Signatures on Next Page)
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IN WITNESS WHEREOF, Landlord and Tenant have executed this First Amendment to the Lease as of
the date and year first above written.
LANDLORD: MHC TT Leasing Company, Inc., a Delaware corporation |
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By: | /s/ Xxxxxxxxxx Xxxxx | |||
Name: | Xxxxxxxxxx Xxxxx | |||
Title: | Senior Vice President | |||
TENANT: Thousand Trails Operations Holding Company, L.P., a Delaware limited partnership By KTTI GP, LLC, its general partner |
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By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx | |||
Title: | Vice President | |||
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Exhibit A
Legal Description of Xxxxxx Creek Preserve
Exhibit B
Description of Tropic Winds Sites