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EXHIBIT 10.3
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FIRST AMENDMENT TO LEASE
FIRST AMENDMENT TO LEASE, dated as of November 8, 1996, between RLH
PARTNERSHIP, L.P., a Delaware limited partnership ("Landlord"), having an
address at c/o KKR Associates, 0000 Xxxx Xxxx Xxxx, Xxxxx 0000, Xxxxx Xxxx,
Xxxxxxxxxx 00000 and RED LION HOTELS, INC., a Delaware corporation ("Tenant"),
having an address at 0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000.
W I T N E S S E T H :
WHEREAS, Landlord and Tenant have entered into that certain Lease,
dated as of August 1, 1995, as supplemented by that certain Non-Disturbance and
Attornment Agreement dated concurrently therewith (collectively the "Lease"),
covering certain premises consisting of all the lots, tracts or parcels of land,
together with the improvements thereon, more specifically described on Exhibit A
annexed hereto and made a part hereof (the "Premises");
WHEREAS, Doubletree Corporation (the "Borrower"), Xxxxxx Xxxxxxx Senior
Funding, Inc., as Syndication Agent and as Arranger, The Bank of Nova Scotia, as
Administrative Agent (the "Administrative Agent") and certain other lending
institutions (collectively, the "Lenders") intend to enter into a Credit
Agreement (the "Credit Agreement") pursuant to which the Lenders will make
certain loans to the Borrower in the amount of up to $736,000,000 (collectively,
the "Loan") which Loan will be secured in part by one or more mortgages
encumbering Tenant's leasehold interest in the Premises;
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated
as of September 12, 1996, by and among the Borrower, RLH Acquisition Corp. and
Tenant, Tenant will become a wholly-owned subsidiary of the Borrower;
WHEREAS, pursuant to Section 19.3 of the Lease, Tenant desires that
Landlord agree to certain modifications of the Lease; and
WHEREAS, Landlord has agreed to modify the Lease as set forth herein.
NOW, THEREFORE, in consideration of the Premises, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree that the Lease be and the same
hereby is amended as follows:
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1. Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to such terms in the Lease.
2. The following defined term shall be deemed added to Article One
after the term "Lease Year" and before the term "Leasehold Purchase Price":
"Leasehold Mortgage" shall mean the Mortgage (and any
amendments, modifications, supplements and/or restatements thereof)
pursuant to which the Tenant's Mortgagee has been granted a security
interest in the Tenant's leasehold interest in this Lease.
3. The following Article shall be deemed added to the Lease:
"ARTICLE XXIII
LEASEHOLD MORTGAGES
23.1 Tenant's Mortgagee. Landlord hereby acknowledges that the
Tenant's Mortgagee is presently The Bank of Nova Scotia, which is the
mortgagee or beneficiary under certain mortgages and deeds of trust
encumbering the Tenant's leasehold interest in the Premises, and as
such, is entitled to the benefits contained in this Article XXIII. All
notices to the Tenant's Mortgagee shall be deemed to have been duly
given when sent in the manner required hereunder addressed to The Bank
of Nova Scotia, 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx
00000, Attention: Eudia Xxxxx, or to such other address as the Tenant's
Mortgagee (or its successors and/or assigns) may provide to Landlord.
23.2 Cancellations. No voluntary cancellation, surrender or
acceptance of surrender of this Lease by Tenant shall be binding upon
the Tenant's Mortgagee or affect the lien of any mortgage on the
leasehold estate without the prior written consent of the Tenant's
Mortgagee.
23.3 Notices and Demands. Landlord shall give to the Tenant's
Mortgagee a copy of each notice of default by the Tenant at the same
time and in the same manner as the notice given by
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Landlord to the Tenant, addressed to the Tenant's Mortgagee at its
address set forth herein or such other address that the Tenant's
Mortgagee may have subsequently furnished to Landlord. No notice by
Landlord to the Tenant under this Lease shall be deemed to have been
duly given unless and until a copy of the notice has been served on the
Tenant's Mortgagee in the manner provided in this Section 23.3.
23.4 Right to Cure. The Tenant's Mortgagee shall have the
right, but not the obligation, to perform any term, covenant, condition
or agreement and to remedy any default by the Tenant under this Lease,
and Landlord shall accept such performance by the Tenant's Mortgagee
with the same force and effect as if performed by the Tenant. Subject
to the terms of Section 23.5 hereof, and except in the case of the
failure to pay Rent, the Tenant's Mortgagee shall have a period that
shall extend three (3) days beyond the cure period given to the Tenant
under this Lease within which to remedy any default of the Tenant
hereunder or cause such default to be remedied. Landlord hereby
authorizes the Tenant's Mortgagee to enter upon the Premises to effect
the cure of a default by the Tenant. In the event there is a restraint
which precludes the Tenant's Mortgagee from taking actions hereunder or
otherwise such as a judicial order or administrative order (including,
without limitation, an automatic stay), the running of all applicable
grace periods shall be tolled for a period not to exceed 90 days so
long as all Rent is being paid currently. The Tenant's Mortgagee's
failure to cure any default by the Tenant which cannot be cured by the
Tenant's Mortgagee because it is personal to Tenant shall not prohibit
Tenant's Mortgagee from exercising its rights under Section 23.6. For
the purposes of this Lease, defaults deemed to be "personal" to Tenant
shall be (i) the failure to deliver books and records (including
statements of Operating Revenues and Base Revenues) , (ii) the failure
to deliver licenses and permits issued directly to Tenant and (iii) the
bankruptcy or reorganization of Tenant, but shall not include (x)
Tenant's obligations regarding the condition of the Premises, including
Tenant's obligations to maintain or repair the Premises and (y)
Tenant's
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obligations to comply with laws, including Environmental Laws.
23.5 Certain Defaults. In the event a default by the Tenant
occurs in the performance or observance of any non-monetary term,
covenant, condition or agreement on the Tenant's part to be performed
under this Lease which cannot practicably be cured by the Tenant's
Mortgagee without taking possession of the Premises, or if such
non-monetary default is of such a nature that the same is not
susceptible of being cured by the Tenant's Mortgagee because it is
"personal" to Tenant, then Landlord shall not serve a notice of
election to terminate or otherwise exercise remedies under or in
respect of this Lease pursuant to the terms thereof, or otherwise
terminate the leasehold estate or any other estate, right, title or
interest of the Tenant hereunder by reason of such default without
allowing the Tenant's Mortgagee reasonable time (not to exceed ninety
(90) days from the date on which notice is received by Tenant's
Mortgagee) within which:
(i) In the case of a default which cannot practically be
cured by the Tenant's Mortgagee without taking
possession of the Premises, to obtain possession of
the Premises as mortgagee (through the appointment of
a receiver or otherwise), and, upon obtaining
possession, to commence promptly and diligently
prosecute to completion such action as may be
necessary to cure such default; and
(ii) In the case of a default which cannot be cured by the
Tenant's Mortgagee because it is personal to Tenant,
to commence promptly and diligently prosecute to
completion foreclosure proceedings or to acquire the
Tenant's estate hereunder, either in its own name or
through a nominee, by assignment in lieu of
foreclosure.
The Tenant's Mortgagee shall not be required to continue to
proceed to obtain possession, or to
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continue in possession as mortgagee, of the Premises pursuant to
clause (i) above, or to continue to prosecute foreclosure proceedings
pursuant to clause (ii) above, if and when such default shall be
cured. If the Tenant's Mortgagee, or its nominee, or a purchaser at a
foreclosure sale, shall acquire title to the Tenant's leasehold estate
hereunder, and shall cure all defaults of the Tenant hereunder (except
with respect to such defaults that cannot be cured by Tenant's
Mortgagee because they are personal to Tenant) which are reasonably
susceptible of being cured by the Tenant's Mortgagee, or by such
nominee or purchaser, as the case may be, then the defaults of any
prior holder of the Tenant's leasehold estate or any other estate,
right, title or interest hereunder which are not susceptible of being
cured by the Tenant's Mortgagee because they are personal to Tenant
(or by such nominee or purchaser) shall no longer be deemed to be
defaults hereunder.
23.6 Termination of Lease; New Lease to the Tenant's
Mortgagee. In the event this Lease is disaffirmed or rejected in the
event of the Tenant's bankruptcy, then, within ten (10) days after such
termination (which term as used herein shall include a disaffirmance)
Landlord shall give notice to the Tenant's Mortgagee that this Lease
has been terminated, together with a statement of any and all sums
which would at that time be due under this Lease but for such
termination, and of all other defaults, if any, under this Lease then
known to Landlord, and the Tenant's Mortgagee, by notice to Landlord
within ten (10) business days, thereupon may request that Landlord
enter into a new lease of the Premises and Landlord shall enter into a
new lease (the "New Lease") with Xxxxxx Xxxxxxx Senior Funding, Inc.
or The Bank of Nova Scotia or such other party as is reasonably
approved by Landlord and Landlord's Mortgagee), within three (3) days
after the giving of such notice by the Tenant's Mortgagee, provided
that the Tenant's Mortgagee shall have cured or commenced such cure of
any defaults of the Tenant existing at the date of termination that are
reasonably susceptible of being cured. The New Lease shall commence and
Rent and all obligations of the Tenant under the New Lease shall
accrue, as
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of the date of termination of this Lease. The term of the New Lease
shall continue for the period which would have constituted the
remainder of the term of this Lease had this Lease not been terminated,
and shall be upon all of the terms, covenants, conditions, conditional
limitations, and agreements contained herein which were in force and
effect immediately prior to the termination of this Lease. The New
Lease, and this covenant, shall be superior to all rights, liens,
estates, titles and interests, other than those to which this Lease
shall have been subject immediately prior to termination and those
matters to which this Lease may, by its terms, become subject. The
provisions of the immediately preceding sentence shall be
self-executing, and Landlord shall have no obligation to do anything
(other than to execute such New Lease as herein provided) to assure to
the Tenant's Mortgagee or to the tenant under the New Lease good title
to the leasehold estate and the other estates, rights, titles and
interests granted thereby. Each subtenant of space in the Premises
whose sublease was in force and effect immediately prior to the
delivery of the New Lease shall attorn to the tenant under the New
Lease, unless such tenant shall, at its option, elect to attempt to
dispossess such subtenant or otherwise terminate the sublease held by
such subtenant. The Tenant's Mortgagee shall, simultaneously with the
delivery of the New Lease, pay to Landlord (1) all Base Rent and other
sums of money due under this Lease on the date of termination of this
Lease and remaining unpaid; plus (2) all Base Rent and other sums of
money due under the New Lease for the period from the date of
commencement of the term thereof to the date of delivery of the New
Lease; plus (3) all costs and expenses, including reasonable attorneys'
fees, court costs, and litigation expenses, incurred by Landlord in
connection with termination of this Lease, the recovery of possession
of the Premises, putting the Premises in good condition and repair, and
the preparation, execution and delivery of such New Lease.
23.7 The Tenant's Mortgagee's Rights Under the Leasehold
Mortgage. In the event a default under the Leasehold Mortgage shall
have occurred,
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the Tenant's Mortgagee may exercise with respect to the Premises any
right, power or remedy under the Leasehold Mortgage which is not in
conflict with any of the provisions of this Lease; including, without
limitation, the right to exercise its foreclosure remedies contained in
the Leasehold Mortgage and to take over the Tenant's interest as tenant
under this Lease.
23.8 Assignment. If The Bank of Nova Scotia forecloses upon or
otherwise acquires all or part of the Tenant's leasehold interest, the
transfer to The Bank of Nova Scotia shall not require Landlord's
consent. Tenant's Mortgagee shall have the same rights to transfer or
assign this Lease as set forth in Section 16.2 of this Lease.
23.9 No Amendments without the Tenant's Mortgagee Consent.
Landlord and the Tenant shall not enter into any amendments,
modifications or supplements to this Lease without the prior consent of
the Tenant's Mortgagee if such amendment, modification or supplement
could reasonably be expected to have a material adverse effect on the
interest of the Tenant's Mortgagee under this Lease, including, without
limitation, any increase in the monetary obligations of the Tenant
under this Lease or any reductions of the term of this Lease.
23.10 Requests for Consents by Tenant. Notwithstanding
anything to the contrary contained in this Lease, Landlord shall
promptly deliver to Tenant's Mortgagee a copy of any request by Tenant
for Landlord's consent to any transfer, assignment, pledge or
hypothecation of the Tenant's interest in this Lease or the execution of
any other mortgages encumbering its leasehold estate)
23.11 Successors and Assigns. The provisions of this Article
23 (other than Section 23.6 and Section 23.8 which shall only run to
the benefit of Xxxxxx Xxxxxxx Senior Funding, Inc., and The Bank of
Nova Scotia) shall inure to the benefit of the permitted successors
and/or assigns of the Tenant's Mortgagee."
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4. Tenant and Tenant's Lenders hereby acknowledge that certain
Non-Disturbance and Attornment Agreement by and among Landlord, Tenant and
Landlord's Mortgagee dated of even date with the Lease and entered into for the
benefit of Landlord's Mortgagee (the "Non-Disturbance Agreement") and Tenant
hereby agrees to execute any replacement agreement in a form substantially
similar to the Non-Disturbance Agreement for the benefit or upon the request of
any future or substitute Landlord's Mortgagee. Further, by Administrative
Agent's acknowledgment hereof, Tenant's Lenders hereby agree to permit Tenant to
execute such replacement or substitute non-disturbance and attornment agreement
and, if applicable, to execute or acknowledge the same provided the same shall
be in form and substance substantially similar to the existing Non-Disturbance
Agreement.
5. Except as amended hereby, all of the other terms, covenants and
conditions of the Lease are and shall remain in full force and effect and are
hereby ratified and confirmed.
6. This Amendment shall be binding upon and shall inure to the benefit
of the parties hereto and their respective permitted successors and permitted
assigns. This Amendment shall not be deemed effective until such time as both
Credit Lyonnais, New York Branch and The Bank of Nova Scotia have acknowledged
and consented to the same.
7. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
8. Tenant and Tenant's Mortgagee acknowledge and agree that if (i)
Landlord or Landlord's Mortgagee forecloses or otherwise exercises its remedies
in respect of its security interest in the FF&E Reserve Account, the FF&E, the
Fixed Asset Supplies, the Operating Equipment and/or the Inventories of Tenant
or (ii) Landlord or Landlord's Mortgagee exercises its option to purchase the
FF&E, Furnishings, Fixed Asset Supplies, Operating Equipment and Inventories of
Tenant, Tenant's Mortgagee shall release, and shall be deemed to have released,
its liens, security interests and claims in and to such property and shall
execute any and all documentation as reasonably requested by Landlord or
Landlord's Mortgagee as necessary to effectuate or evidence such release and
termination. Tenant shall cause any future Tenant's Mortgagee or other person(s)
with any
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interest in such property to agree to similar release provisions in
favor of Landlord and Landlord's Mortgagee at or prior to the time of the
creation of such interest and failure to obtain such agreement shall be an
Event of Default under the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as
of the day and year first above written.
RLH PARTNERSHIP, L.P.
By: Red Lion G.P., Inc.,
its general partner
BY: /s/
---------------------------------
RED LION HOTELS, INC.
BY: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Acknowledged and Consented Acknowledged and Consented
to by Landlord's Mortgagee: to by Tenant's Mortgagee:
THE BANK OF NOVA SCOTIA,
CREDIT LYONNAIS, NEW YORK BRANCH as Administrative Agent
as Administrative Agent
By: /s/ Xxxx X. Day By: /s/
------------------------- ---------------------------------
Its: Vice President Its:
------------------------ --------------------------------
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SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (this "Amendment") is made as of the
15th day of September, 1998, by and between RLH PARTNERSHIP, L.P., a Delaware
limited partnership ("Landlord"), having an address at c/o Starwood Financial
Trust, 1114 Avenue of the Americas, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
RED LION HOTELS, INC. ("Tenant"), a Delaware corporation, with a mailing address
at c/o Promus Hotel Corporation, 000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx 00000.
WITNESSETH:
WHEREAS, Landlord and Tenant have entered into that certain Lease,
dated as of August 1, 1995 (as previously amended, modified, or supplemented
prior to the date hereof, the "Original Lease").
WHEREAS, Landlord and Tenant entered into a certain Amendment to the
Original Lease (the "First Amendment") dated as of November 8, 1996. The
Original Lease, as amended by the First Amendment, is hereinafter called the
"Lease".
WHEREAS, pursuant to Section 19.3 of the Lease, Tenant desires that
Landlord agree to certain modifications of the Lease.
WHEREAS, Landlord has agreed to modify the Lease as set forth herein.
NOW, THEREFORE, and for good and valuable consideration, the receipt
and legal sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree that the Lease be and the same hereby is amended as follows:
1. Capitalized terms used but not otherwise defined herein have the
meanings ascribed to such terms in the Lease.
2. Definitions. (a) At the end of sentence 2 in the definition of
"Insurance Trustee" in Article II of the Lease, the following language
is hereby inserted:
"or is acting as trustee under a trust agreement executed in
connection with a securitization of a loan to the Landlord"
(b) The definition of "Leasehold Purchase Price" in Article II is
deleted in its entirety and the following definition of "Leasehold
Purchase Price" is substituted in its place:
"'Leasehold Purchase Price' shall be at any particular time
during the Term, the dollar amount equal to the present value
of as of the date of such purchase of the payments of Base
Rent applicable to such Hotel (as determined in accordance
with the Schedule of Rent shown on Exhibit B), that would have
been payable during the
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period commencing on the date of such purchase and ending on
the date of expiration of the then current Term of this Lease
(including any Effective Extended Term) for such Hotel,
discounted to the date of purchase at an interest rate equal
to the effective interest rate on United States Treasury
obligations as of the month preceding the date of such
purchase and having a maturity most nearly equal to the number
of months remaining in the current Term of this Lease
(including any Effective Extended Term) as of the date of such
purchase, provided however in connection with determining the
end of the then current Term of this Lease for purposes of
this definition of Leasehold Purchase Price, in the event that
the date of the purchase in question occurs prior to December
31, 2010, the then current Term of this Lease shall, solely
for purposes of this definition and for no other purpose, be
deemed to end on December 31, 2010."
3. TERM. Section 3.1, Article III of the Lease is hereby amended by
deleting the last sentence thereof in its entirety and substituting the
following sentence in its place: "The Initial Term of this Lease shall
commence on the Commencement Date, and, unless sooner terminated as
otherwise provided herein, shall expire on December 31, 2020.
4. EXTENDED TERM. The provision appearing in the first sentence of Section
3.2, Article III of the Lease is hereby amended to replace the words
"five such" with the words "three such".
5. PAYMENT OF RENT. Section 5.2(a), Article V of the Lease is hereby
amended by deleting the first and second sentences thereof in their
entirety and substituting the following sentences in their place:
"Base Rent shall be paid (i) with respect to each calendar month in
each of the first two (2) fiscal quarters (based on Tenant's Fiscal
Year) after the Commencement Date, monthly in arrears, in six equal
payments of One Million Two Hundred Fifty Thousand Dollars ($1,250,000)
on or before the last business day of each such calendar month, and
(ii) with respect to all periods thereafter during the Term, monthly in
arrears, in twelve (12) equal payments of One Million Two Hundred Fifty
Thousand Dollars ($1,250,000), on or before the last business day of
each month during each Year of the Term. Base rent for any partial
calendar month shall be prorated and computed by multiplying the
monthly Base Rent by a fraction, the numerator of which is the number
of days in such partial calendar month and the denominator of which is
thirty (30)."
6. TEMPORARY TAKING. (a) Section 15.3(a)(i), Article XV of the Lease is
hereby amended to insert "(no more frequently than monthly)" between
the words "shall" and "pay" in the first sentence thereof, and to
delete the phrase "quarterly (or more frequent)" in each place it
appears.
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(b) Section 15.3(a)(ii), Article XV of the Lease is hereby amended to
replace "quarterly" with "monthly" in each place it appears and
"quarter" with "month" in the place it appears.
7. NOTICES. (a) Section 22.1(a), Article XXII of the Lease is hereby
amended by deleting the last sentence thereof and replacing it with the
following sentence:
Tenant shall also send a copy of any Notice of Landlord's default, any
Notice of Tenant's irrevocable offer to purchase pursuant to any of
Sections 1.3, 14.3 and 15.5, or any Notice of Termination pursuant to
Section 14.1, to Landlord's Mortgagee(s) simultaneously with the
sending of Notice to Landlord, provided that Landlord or such
Mortgagee(s) shall have supplied to Tenant the name and address of such
Mortgagee(s).
(b) The Landlord's address in Section 22.1(d), Article XXII of the
Lease is hereby changed to:
To Landlord: RLH Partnership, L.P.
c/o Starwood Financial Trust
1114 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President and Chief Executive Officer
with a copy to: Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq. and
Xxxxxxx X. Xxxxxxxx, Esq.
8. It is agreed that all references to "Non-Disturbance Agreement" (as
defined in Paragraph 4 of the First Amendment to Lease) shall from and
after the date of the Amendment refer to a Non-Disturbance and
Attornment Agreement substantially in the form of Exhibit A attached
hereto.
9. Except as amended hereby, all of the other terms, covenants and
conditions of the Lease are and shall remain in full force and effect
and are hereby ratified and confirmed in all respects.
10. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all
of which together shall constitute one and the same instrument.
[EXECUTION PAGE FOLLOWS]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as
of the date first written above.
TENANT: LANDLORD:
RED LION HOTELS, INC., RLH PARTNERSHIP, L.P.,
a Delaware corporation a Delaware limited partnership
By: Red Lion G.P., Inc.
a Delaware corporation, its
general partner
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/
------------------------------ ------------------------------
Name: Xxxxxxx X. Xxxxxxxx Name:
---------------------------- -------------------------------
Title: Executive Vice President Title:
--------------------------- ------------------------------
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EXHIBIT A
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this "Agreement"), made
as of this day of , 1998, by and among RED LION HOTELS, INC., a
Delaware corporation ("Tenant"), RLH PARTNERSHIP, L.P., a Delaware limited
partnership ("Landlord"), and GREENWICH CAPITAL FINANCIAL PRODUCTS INC., a
Delaware corporation ("Lender"), is made with reference to the following:
RECITALS
A. Landlord and Tenant have entered into that certain Lease dated
August 1, 1995 (the "Lease"), described on Annex A attached hereto and
incorporated herein, pursuant to which Landlord has let to Tenant, and Tenant
has leased from Landlord, certain real property more particularly described in
Exhibit A to the Lease and in Exhibits A-1 through A-17 attached hereto and
incorporated herein (collectively, the "Property").
B. Landlord represents that Landlord and Lender have entered, or may
hereafter enter, into that certain Loan Agreement, dated as of , 1998
(as amended, restated, replaced, supplemented or otherwise modified from time to
time, the "Loan Agreement"), pursuant to which Lender has, or will have, agreed
to extend a loan to Landlord in an aggregate amount of up to ___________________
and ___ /100 Dollars ($_____________) (the " Loan"). Landlord's obligations to
Lender under the Loan Agreement and the other documents evidencing the Loan are,
or will be, secured by, among other things, certain Mortgages/Deeds of Trust,
Assignment of Leases and Rents and Security Agreements of even date with the
Loan Agreement (collectively, the "Mortgages" and together with the Loan
Agreement and all other documents executed in connection with the Loan, the
"Loan Documents"), executed by Landlord for the benefit of Lender, encumbering
Landlord's interest in the Property.
C. Landlord represents that as a condition to making the Loan to
Landlord, Lender requires certain further assurances from Landlord and Tenant
with respect to the Lease, as set forth herein. Landlord and Tenant have agreed
to grant the rights and assurances to Lender that are set forth herein, and to
make the Lease subject to those rights and assurances.
D. Capitalized terms not defined herein shall be given the meaning
described in the Lease.
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THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE (this "Amendment") is made as of the 26th
day of February, 1999, by and between RLH PARTNERSHIP, L.P., a Delaware limited
partnership ("Landlord"), having an address at c/o Starwood Financial Trust,
1114 Avenue of the Americas, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and RED LION
HOTELS, INC. ("Tenant"), a Delaware corporation, with a mailing address at c/o
Promus Hotel Corporation, 000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx 00000.
WITNESSETH:
WHEREAS, Landlord and Tenant have entered into that certain Lease,
dated as of August 1, 1995 (the "Original Lease").
WHEREAS, Landlord and Tenant entered into a certain Amendment to the
Original Lease (the "First Amendment") dated as of November 8, 1996 and a
certain Second Amendment to Lease (the "Second Amendment") dated as of September
15, 1998. The Original Lease, as amended by the First Amendment and the Second
Amendment, is hereinafter called the "Lease".
WHEREAS, pursuant to Section 19.3 of the Lease, Tenant desires that
Landlord agree to certain modifications of the Lease.
WHEREAS, Landlord has agreed to modify the Lease as set forth herein.
NOW, THEREFORE, and for good and valuable consideration, the receipt
and legal sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree that the Lease be and the same hereby is amended as follows:
1. Capitalized terms used but not otherwise defined herein have the
meanings ascribed to such terms in the Lease.
2. CONFIDENTIALITY.
(a) Section 5.3(c) of the Lease is amended by adding the following
new sentence as the final sentence thereof:
"In addition, such information may be disclosed (x) by
Mortgagees to (i) the holders of direct or indirect ownership
interests in Mortgagee, (ii) holders of any pass-through or
other certificates issued by any trust holding a Mortgage in a
securitization of a Mortgage loan, (iii) any trustees of such
trust, (iv) any depositor of a Mortgage loan into such trust,
(vi) to such other parties or governmental agencies as may be
required by law and (y) to any Rating Agencies."
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(b) The second sentence of Section 22.20 of the Lease is deleted
in its entirety and the following sentence is substituted in
its place:
"For purposes of the preceding sentence, the words 'outside
persons or entities' do not include the parties' attorneys,
accountants, consultants, shareholders, lenders, partners,
investors, prospective investors, partners, agents or lenders,
Rating Agencies, actual or prospective investors, accountants,
attorneys, consultants, shareholders, partners, agents or
lenders to Landlord's Mortgagees and any of the parties
described in the last sentence of Section 5.3(c) of the Lease.
Any such information necessary or desirable for a prospectus,
private placement memorandum, offering circular or offering
documentation related thereto issued by Landlord's Mortgagees,
their respective successors and assigns and any affiliates of
such Mortgagees, successors and assigns in connection with a
securitization of a Mortgage may be used and disclosed
therein."
(c) Article II, "Definitions of Terms" is amended by adding the
following new definition:
"'Rating Agencies' shall mean each of Standard & Poor's Rating
Group, a division of XxXxxx-Xxxx, Inc., Xxxxx'x Investors
Service, Inc., Duff & Xxxxxx Credit Rating Co. and Fitch IBCA,
Inc., or any other nationally recognized statistical rating
agency."
3. APPLICATION OF PROCEEDS. The final sentence of Section 13.2(a) of the
Lease, "Application of Proceeds", is amended by deleting " 13.1" and
replacing it with " 13.1(c)" and the proviso in the first sentence of
this Section 13.1(a) pertaining to circumstances where the proceeds
with respect to a casualty are less than Five Hundred Thousand Dollars
($500,000.00)."
4. FINANCIAL REPORTS. A new Section 22.32, "Tenant's Financial Reports",
is hereby added to the Lease:
"Section 22.32 Financial Reports. Tenant shall furnish, cause
to be furnished, within thirty (30) days after the end of each
calendar quarter, to landlord unaudited monthly and
year-to-date operating statements for the Premises, including
the Hotels (on a Premises-wide basis), showing the results for
the month most recently concluded. Tenant will furnish, or
cause to be furnished, within ninety (90) days after the end
of
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EACH CALENDAR YEAR TO LANDLORD, AN UNAUDITED OPERATING
STATEMENT FOR THE PREMISES, INCLUDING THE HOTELS (ON A
PREMISES-WIDE BASIS), SHOWING THE RESULTS FOR THE FISCAL YEAR
MOST RECENTLY CONCLUDED. THE REPORTS PROVIDED PURSUANT TO THIS
SECTION 22.32 ARE SUBJECT TO THE PROVISIONS OF SECTION
22.20."
5. Except as amended hereby, all of the other terms, covenants and
conditions of the Lease are and shall remain in full force and effect
and are hereby ratified and confirmed in all respects.
6. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all
of which together shall constitute one and the same instrument.
[EXECUTION PAGE FOLLOWS]
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19
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as
of the date first written above.
TENANT: LANDLORD:
RED LION HOTELS, INC., RLH PARTNERSHIP, L.P.,
a Delaware corporation a Delaware limited partnership
By: Red Lion G.P., Inc.
a Delaware corporation, its
general partner
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------------- -------------------------
Name: Name: Xxxxxxx X. Xxxxx
------------------------ -----------------------
Title: Title: Secretary
----------------------- ----------------------
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