Exhibit 10 (i)
SECOND AMENDMENT TO
AMENDED AND RESTATED LEASE AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT (the
"Amendment") is dated as of September 15, 2004 and is by and between GROVE ISLE
ASSOCIATES, LTD., a Florida limited partnership (the "Lessor") and WESTGROUP
GROVE ISLE ASSOCIATES, LTD., a Florida limited partnership (the "Lessee").
RECITALS
A. Lessor and Lessee are parties to that certain Amended and Restated
Lease Agreement dated as of November 19, 1996, as amended by Amendment to
Amended and Restated Lease Agreement dated December 10, 1999 (as so amended, the
"Lease") pertaining to, among other things, the land, improvements, real
property and FF&E described therein and which are collectively called therein
the "Demised Premises".
B. Lessee desires to sublease to Grove Spa, LLC, a Delaware limited
liability company ("Spa Tenant") that portion of the Demised Premises depicted
on Exhibit A hereto (the "Spa Property") and in connection therewith, the Lessor
and Lessee desire to modify this Lease in certain respects.
NOW, THEREFORE, in consideration of the Premises as well as the mutual
benefits inuring to each party hereunder, the Lessor and Lessee agree that the
foregoing recitals are true and correct and further agree as follows:
1. Definitions. All capitalized terms used in this Amendment without
definition shall have the meanings given to them in the Lease.
2. Term. Article II of the Lease is amended to extend the initial
Termination Date from December 31, 2006 to December 31, 2016. Accordingly,
December 31, 2016 is substituted in lieu and place of December 31, 2006 in
Article II.
3. Option to Extend. Article IV of the Lease is amended and restated in
its entirety as follows:
"Provided that the Lessee is not in default under this Lease, and in
addition to the "Right of First Offer" (defined below), the Lessee
shall have the right to extend the term of this Lease for two (2)
additional twenty (20) year terms on the same terms and conditions as
contained in this Lease (each such option to extend is called an
"Extension Option"), provided Lessee gives Lessor written notice of
Lessee's intention to exercise such Extension Option at least nine (9)
months, but not more than twelve (12) months, prior to the Termination
Date, or the first extended Termination Date, as applicable."
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4. Operating Revenue. Lessor confirms and agrees that Net Operating
Surplus shall not include the results of operations of the Spa Tenant.
5. Consent to Sublease. Lessor hereby consents to Lessee's sublease of
the Spa Property to the Spa Tenant pursuant to a sublease of even date herewith
(the "Sublease"), a copy of which is attached hereto as Exhibit B.
6. Termination Payment. Section 5.1 of the Lease is amended and
restated in its entirety as follows:
"Provided Lessee exercises any Extension Option and is not then in
default hereunder, then Lessor will pay to Lessee the 'Termination
Payment". The "Termination Payment" means fifty percent (50%) of the
amount by which the value of the Demised Premises on the Termination
Date exceeds $11,480,000.00, plus the value of Noble House Associates,
LLC's percentage ownership interest in Grove Spa, LLC. The Termination
Payment shall be due on the 10th day after the amount thereof is
determined pursuant to Section 5.2 below, but if Lessor fails to
provide a "Lessor's Appraisal" within 60 days after Lessor receives
"Lessee's Appraisal" (each defined below), then such payment shall be
due on the 60th day after Lessor receives Lessee's Appraisal. The
Termination Payment shall not be a personal obligation of the Lessor,
and the Lessee's recourse for recovery of the Termination Payment shall
be limited to the Demised Premises and the Retained Club Rights. In
addition, in no event shall the Termination Payment or any part thereof
be due or payable if the Lease is terminated for any reason (other than
a material and/or willful default or breach by the Lessor). The payment
of the Termination Payment shall terminate all rights and obligations
of any kind under this Lease (and the sublease permitted hereunder
attached hereto as Exhibit B) for all purposes."
7. Estoppel. Lessor represents and acknowledges that the Lease is in
full force and effect that it has no knowledge that any uncured default exists
under the Lease, and that all rent and other sums payable to Lessor thereunder
through August 2004 have been paid in full. Lessee represents and acknowledges
that the Lease is in full force and effect that it has no knowledge that any
uncured default exists under the Lease.
8. Existing Spa Provision. Section 15.5 of the Lease is hereby deleted
in its entirety.
9. No Implied Modification. Except as expressly set forth in this
Amendment, the Lease shall remain in full force and effect without modification.
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ESSOR:
GROVE ISLE ASSOCIATES, LTD.,
a Florida limited partnership,
by Courtland Investments,
Inc., a Delaware corporation, its
sole general partner
/s/ Xxxxxxx Xxxxxxx By:
------------------------------ ------------------------------
Print Name: Xxxxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxx
------------------------------
Print Name: Xxxxx X. Xxxxx
LESSEE:
WESTGROUP GROVE ISLE ASSOCIATES LTD., a
Florida limited partnership, by
WESTGROUP PARTNER, INC., a California
corporation, its sole
general partner
By:
------------------------------
Xxxxxxx X. Xxxxx, President
------------------------------
Print Name:
------------------------------
Print Name:
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LESSOR:
GROVE ISLE ASSOCIATES, LTD.,
a Florida limited partnership,
by Courtland Investments,
Inc., a Delaware corporation, its sole
general partner
By:
------------------------------ ------------------------------
Print Name:
------------------------------
Print Name:
LESSEE:
WESTGROUP GROVE ISLE ASSOCIATES LTD., a
Florida limited partnership, by
WESTGROUP PARTNER, INC., a California
corporation, its sole general partner
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxx, President
/s/ Xxxxxxxxx Xxxxx
------------------------------
Print Name: Xxxxxxxxx Xxxxx
/s/ Xxxxx Xxxxxxx
------------------------------
Print Name: Xxxxx Xxxxxxx
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