EXHIBIT 10.15
First Amendment to Lease - Gwinnett Place
and
First Amendment to Agreement of Guaranty
FIRST AMENDMENT TO LEASE
This First Amendment to Lease (the "Amendment") is made and entered
into as of the 1st day of August, 1998 by and between CNL Hospitality Partners,
L.P., a Delaware limited partnership ("Landlord"), and STC Leasing Associates,
LLC, a Georgia limited liability company ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant made and entered into that certain Lease
dated as of the 1st day of August, 1998 (the "Lease") with respect to the
certain hotel (being a Residence Inn) located in Gwinnett County, Georgia; and
WHEREAS, Landlord and Tenant desire to amend the Lease as more
particularly hereinafter set forth.
NOW THEREFORE, in consideration of the premises hereof and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Landlord and Tenant do hereby agree as follows:
1. Recitals: Capitalized Terms: The above recitals are true and
correct and are incorporated herein by this reference. Capitalized
terms used herein and not otherwise defined herein shall have the
meaning ascribed thereto in the Lease.
2. Amendments to the Lease: The Lease is hereby amended and modified
as follows:
a. Paragraph 8.1(j) is hereby deleted and the following
new paragraph 8.1(j) is hereby inserted in lieu,
instead and in place thereof:
(j) Garage Keepers Liability Insurance. Garage
keepers legal liability insurance covering both
comprehensive and collision-type losses with a limit
of liability in an amount not less than $100,000.00
per occurrence.
b. Paragraph 11.3 of the Lease is hereby deleted and the
following new paragraph 11.3 is hereby inserted in
lieu, instead and in place thereof:
11.3 The Reserve. Tenant shall establish a separate
interest bearing reserve account (the "Reserve") in a
bank designated by Landlord and reasonably approved
by Tenant. All interest earned on the Reserve shall
be added to and remain part of the Reserve. The
purpose of the Reserve is to cover the cost of the
following, to the extent carried out in accordance
with this Agreement:
(i) replacements, renewals and additions to FF&E at
the Hotel; and (ii) repairs, renovations, renewals,
additions, alterations, improvements or replacements
and maintenance to the leased Premises, all of which
are routine and which are normally capitalized under
generally accepted accounting principals, such as
exterior and interior repainting, resurfacing
building walls, floors, roofs and parking areas, and
replacing folding walls and the like.
Both Tenant and Landlord shall be signatories on the
Reserve and either party shall be authorized to
withdraw funds from such account; provided, however,
Landlord agrees that it shall not make any
withdrawals therefrom so long as Tenant is not in
default hereunder. Deposits to the Reserve shall be
made as follows: (a) for each month during the first
Lease Year during the Term hereof three percent (3%)
of the Gross Receipts (as defined in Section 4.2
hereof) for such month shall be deposited in the
Reserve; (b) for each month during the second Lease
Year during the Term hereof four percent (4%) of the
gross Receipts for such month shall be deposited in
the Reserve; and (c) for each month during the third
Lease Year and each Lease Year thereafter during the
Term hereof, five percent (5%) of Gross Receipts for
such month shall be deposited in the Reserve.
Deposits to the Reserve with respect to any such
month shall be made in arrears within twenty-one (21)
days after the end of such month. Within sixty (60)
days after the close of each Lease Year, Tenant shall
notify Landlord of the balance in the Reserve and of
the account in which the Reserve is maintained.
Tenant may only withdraw funds from the Reserve
contained in the Approved Reserve Budget and, if not,
only with the prior approval of Landlord. (Which
funds shall not be withdrawn to cover Major Repairs
as described in, and the cost of which shall be borne
by Landlord, as set forth in Section 11.2 hereof.)
Not later than sixty (60) days prior to the
commencement of each calendar year during the Term
hereof, Tenant shall submit to Landlord a detailed
budget of expenses for the forthcoming calendar year
(the "Reserve Budget"). Such Reserve Budget shall
reflect by line item the projected budget expenses
for the Premises and assumptions on the basis of
which such line items were prepared in narrative form
if necessary, including separate items for all
projected expenditures for replacements,
substitutions and additions to Tenant's Personal
Property. Tenant shall provide to Landlord reasonable
additional detail, information and assumptions used
in the preparation of the Reserve Budget as requested
by Landlord. Tenant shall review the Reserve Budget
with Landlord, and subject to Landlord's approval,
Tenant shall implement such Reserve Budget for the
successive calendar year (during which it shall, if
approved by Landlord, be referred to as the
("Approved Reserve Budget"). Landlord shall have the
right to disapprove any Reserve expenditures but
Landlord agrees that it will not unreasonably
withhold its consent and that it will consent to any
expenditures required under the Franchise Agreement.
Pending resolution of any dispute, the specific
disputed item, of the Reserve Budget shall be
suspended and replaced for the calendar year in
question by an amount equal to the lesser of (a) that
proposed by Tenant for such calendar year or (b) such
budget item for the calendar year prior thereto.
Tenant shall not make any expenditures from the
Reserve, nor shall Tenant deviate from the Approved
Reserve Budget without the prior approval of
Landlord, except in the case of emergency where
immediate action is necessary to prevent imminent
danger to person or property. All funds in the
Reserve, all interest earned thereon and all property
purchased with funds from the Reserve shall be and
remain the property of Landlord. Following expiration
or early termination of this Agreement and payment in
full on all contracts entered into prior to such
expiration or termination for work to be done or FF&E
to be supplied in accordance with this Section 11.3
out of the Reserve, control over the Reserve shall be
transferred from Tenant to Landlord.
3. Joinder of Guarantors: Amendment to Agreement of Guaranty: The
Guarantors hereby join in the execution of the Amendment to
acknowledge and consent to the amendment to the Lease contained
herein. Further, Landlord, Tenant and Guarantors acknowledge that the
Agreement of Guaranty by Stormont Trice Corporation, a Georgia
corporation, Stormont Trice Development Corporation, a Georgia
corporation and Stormont Trice Management Corporation, a Georgia
corporation, to and in favor of Landlord dated August 1, 1998 has been
amended by that certain First Amendment to Agreement of Guaranty of
even date herewith and that the Guaranty as amended is and remains in
full force and effect.
4. Effective Date: This Amendment shall be effective as of, and relate
back to August 1, 1998. All references in the Lease to the "FF&E
Reserve" shall mean and refer to the "Reserve" as defined in paragraph
2(b) hereof.
5. Lease in Full Force and Effect: Except as hereby amended and
modified, the Lease shall remain in full force and effect in strict
accordance with the terms thereof.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to
be duly executed on or as of the day and year first above written.
Signed, sealed and delivered
in the presence of: CNL HOSPITALITY PARTNERS, L.P.
a Delaware limited partnership
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Its: Executive Vice President
(CORPORATE SEAL)
"LANDLORD"
STC LEASING ASSOCIATES, LLC
a Georgia Limited Liability Company
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Its: Authorized Member
(CORPORATE SEAL)
"TENANT"
STORMONT TRICE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Chairman
(CORPORATE SEAL)
STORMONT TRICE DEVELOPMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Chairman
(CORPORATE SEAL)
STORMONT TRICE MANAGEMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Its: Chairman
(CORPORATE SEAL)
"GUARANTORS"
FIRST AMENDMENT TO AGREEMENT OF GUARANTY
This First Amendment to Agreement of Guaranty (the "Amendment) is made
and executed as of the 1st day of August, 1998 by and among Stormont Trice
Corporation, a Georgia corporation, Stormont Trice Development Corporation, a
Georgia corporation and Stormont Trice Management Corporation, a Georgia
corporation (each a "Guarantor" and collectively the "Guarantors") and CNL
Hospitality Partners, L.P., a Delaware Limited Partnership ("Landlord").
WITNESSETH
WHEREAS, the Guarantors made and executed that certain Agreement of
Guaranty dated as of the 1st day of August, 1998 in favor of Landlord with
respect to that certain Residence Inn in Gwinnett County, Georgia (the
"Agreement") as a material inducement to Landlord, to enter into that certain
Lease Agreement dated as of August 1, 1998 as amended by First Amendment to
Lease of even date herewith (the "Lease") between Landlord and STC Leasing
Associates, LLC, ("Tenant") concerning the Premises, and that certain Lease
Agreement dated as of August 1, 1998 between Landlord and Tenant concerning the
Residence Inn Buckhead (the "Other Lease"), and for other good and valuable
consideration including, but not limited to, the financial benefits that will
inure to each Guarantor from the business success of Tenant; and
WHEREAS, the Guarantors desire to further amend the Agreement in
certain respects as more particularly hereinafter set forth.
NOW THEREFORE, in consideration of the premises hereof and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Landlord and Guarantors do hereby agree as follows:
1. Recitals: Capitalized Terms: The above recitals are true and
correct and are incorporated herein by this reference. Capitalized
terms not otherwise defined herein shall have the meaning ascribed
thereto in the Lease.
2. Net Operating Income: The penultimate sentence of the Agreement
which reads as follows:
"For purposes hereof, "Shortfall" shall mean the
amount that Base Rent exceeds net operating income as
defined in Exhibit "A" hereto as determined on a
cumulative basis for each 12-month period following
the Commencement Date of the Lease (and during which
this Guaranty exists)."
is hereby deleted in its entirety and the following two
sentences are hereby inserted in lieu, instead and in place
thereof:
"For purposes hereof, "Shortfall" shall mean the
amount that Base Rent exceeds Net Operating Income
(as hereinafter defined), as determined on a
cumulative basis for each 12-month period following
the Commencement Date of the Lease (and during which
this Guaranty exists). Net Operating Income shall
mean and refer to EBITDA (earnings before interest,
taxes, depreciation and amortization), as calculated
in accordance with the Uniform System of Accounts and
shall specifically contemplate as expenses, franchise
fees and other fees and costs; provided, however, for
purposes of determining Net Operating Income,
management fees paid for each 12-month measurement
period (which are subordinate to Rent) shall be added
back to EBITDA and amounts funded into the Reserve
pursuant to Section 11.3 of the Lease for each
12-month measurement period, as aforesaid, shall be
deducted from EBITDA."
3. Except as hereby amended and modified, the Agreement shall
remain in full force and effect in strict accordance with the
terms thereof.
IN WITNESS WHEREOF, Guarantors and Landlord have executed this
Amendment in manner and form sufficient to bind them as of the day and year
first above written.
STORMONT TRICE CORPORATION,
a Georgia Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Chairman
(CORPORATE SEAL)
STORMONT TRICE DEVELOPMENT CORPORATION,
a Georgia Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Chairman
(CORPORATE SEAL)
STORMONT TRICE MANAGEMENT CORPORATION,
a Georgia Corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Its: Chairman
(CORPORATE SEAL)
"GUARANTORS"
CNL HOSPITALITY PARTNERS, L.P.,
a Delaware Limited Partnership
By: CNL Hospitality GP Corporation,
a Delaware Corporation
By: /s/ C. Xxxxx Xxxxxxxxxx
----------------------------
Name: C. Xxxxx Xxxxxxxxxx
Its: Vice President
"LANDLORD"
