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EXHIBIT 10.56
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (the "First Amendment") is
made and entered into as of the 1st day of April, 1996, by and between CRESCENT
REAL ESTATE FUNDING II, L.P. a Delaware limited partnership ("Lessor"), and
ROSESTAR SOUTHWEST, LLC, a Delaware limited liability company ("Lessee").
W I T N E S S E T H:
WHEREAS, on December 19, 1995, CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership ("Crescent"), as Lessor, and
RoseStar Management, LLC, a Texas limited liability company ("RoseStar"), as
Lessee, entered into that certain Lease Agreement (hereinafter referred to as
"Lease") covering a hotel facility and related assets located in the County of
Bernalillo, State of New Mexico, and known as "Hyatt Regency Albuquerque"
(hereinafter referred to as the "Leased Property"); and
WHEREAS, on March 11, 1996, the Leased Property and all of Crescent's
interest and estate as lessor under the Lease were conveyed by Crescent to
Lessor, who thereupon assumed all of Crescent's liabilities and obligations
under the Lease; and
WHEREAS, pursuant to that certain Assignment and Assumption of
Leasehold Estate dated March 29, 1996, all of RoseStar's interest and estate as
lessee under the Lease was sold and assigned to Lessee, who thereupon assumed
all of RoseStar's liabilities and obligations under the Lease; and
WHEREAS, Lessor and Lessee desire to further modify the terms and
conditions of the Lease;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt,
accuracy and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Lessor and Lessee agree that Article 7.7 of the Lease is deleted
and replaced by the following new Article 7.7:
7.7 Net Worth. Lessee covenants that Lessee and RoseStar
Management, LLC ("RoseStar") shall at all times during the term of
this Lease maintain a cumulative "net worth" which shall be equal to
no less than $200,000. For purposes hereof, "net worth" shall mean the
sum of (i) the aggregate cash and fair market value of any property
(other than cash) contributed to the capital of Lessee and RoseStar by
the members of Lessee and RoseStar (net of amounts distributed other
than distributions out of earnings of Lessee and RoseStar) and (ii)
the aggregate balances of any line of credit (A) obtained by Lessee or
RoseStar and guaranteed by one or more of the members of Lessee or
RoseStar or (B)
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obtained by the members of Lessee or RoseStar to fund capital
contributions to Lessee or RoseStar (to the extent not already
included in (i)), to the extent such funds may be utilized by Lessee
or RoseStar to perform its obligations under the Lease or any other
lease between Lessor or any entity affiliated with Lessor and Lessee
or RoseStar and to comply with the terms of the Management Agreement,
and (iii) any commitments of the members of Lessee or RoseStar to make
additional capital contributions to Lessee or RoseStar. Lessee shall
provide Lessor with an annual written certification of its compliance
with the foregoing requirement on the Commencement Date and the first
day of each subsequent year of this Lease hereunder; provided,
however, that Lessor may, in addition, request more than once during
any year of this Lease that Lessee provide Lessor with a certification
as of the date of such request of its compliance with the foregoing
requirement. Such certifications must be reasonably satisfactory to
Lessor as to matters certified therein and shall be accompanied by
such supporting financial information as Lessor may reasonably
request.
2. Lessor and Lessee agree that Article 7.9 of the Lessee is deleted
and replaced by the following new Article 7.9:
7.9 Limitation on Distributions. Lessee covenants that, until
such time as Lessee and each affiliate of Lessee such as RoseStar
which has entered into a long-term lease of a hotel either with Lessor
or any affiliate of Lessor such as Crescent Real Estate Equities
Limited Partnership ("Crescent") has accumulated and is holding in
reserve funds in the aggregate which are sufficient in amount to
enable Lessee and each of such affiliated entities to pay at least one
(1) monthly payment of Base Rent under each lease between Lessee and
any of such affiliated entities and Lessor or an affiliate of Lessor
such as Crescent, Lessee shall retain all income generated by the
Leased Property and shall not distribute any earnings to its
beneficial owners except as needed for federal and state income taxes
payable on taxable income from the Leased Property. In no event,
however, shall any amounts be payable to the beneficial owners of
Lessee if any such payment would result in a violation of Lessee's net
worth covenants set forth in Article 7.7 hereinabove.
3. Lessor and Lessee agree that the following Article XXXVIII is added
to the Lease:
ARTICLE XXXVIII
38.1. Business of Lessee. The sole purpose and nature of the
business to be conducted by Lessee is to:
(a) enter into and perform as lessee under this Lease and as
lessee under a long-term lease of the Hyatt Regency Beaver Creek Hotel
located in Avon, Colorado (hereinafter the hotels covered by the
leases described in this subparagraph are collectively referred to as
the "Hotels");
(b) enter into long-term management agreements for the Hotels
with experienced
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and reputable hotel management companies; and
(c) enter into and perform all other contracts and
undertakings, and engage in and carry out all other activities and
transactions, as may be necessary, appropriate, convenient, ancillary,
or incidental to the foregoing purposes (including but not limited to
borrowing and repaying loans, and granting security interests in
receivables, general intangibles and personal property (other than any
property that is part of the Leased Property) to secure such loans,
employing personnel and advisers, constructing and maintaining
improvements at the Hotels, and acquiring, holding, operating,
leasing, disposing of and otherwise dealing with personal property
located at the Hotels). Without limitation, Lessee shall qualify to
transact business in Colorado and New Mexico as a foreign limited
liability company and shall seek and obtain all such licensing and
permitting as may be required in connection with leasing and managing
the Hotels (including but not limited to alcoholic beverage permits
and licenses, if required).
Lessee shall not engage in any business unrelated to the foregoing
purposes and shall not own any assets other than those related to leasing and
managing the Hotels or otherwise in furtherance of the purposes of Lessee as
set forth above in this paragraph 38.1. Lessee shall not incur any indebtedness
other than indebtedness incurred in connection with leasing and managing the
Hotels or otherwise in furtherance of the purposes of Leasee as set forth above
in this paragraph 38.1.
38.2. Single-Purpose Entity.
(a) Lessee at all times since its formation has been, and
will continue to be, a duly formed and existing Delaware limited
liability company and a Single-Purpose Entity (as defined below).
Lessee at all times since its formation has been, and will continue to
be, duly qualified as a foreign limited liability company in each
jurisdiction in which the Hotels are located. RSSW Corp., the Managing
Member of Lessee and hereinafter referred to as "RSSW", at all times
since its formation has been, and will continue to be, a duly formed
and existing Delaware corporation and a Single-Purpose Entity. RSSW at
all times since its formation has been, and will continue to be, duly
qualified as a foreign corporation in each jurisdiction in which the
Hotels are located.
(b) Lessee at all times since its formation has complied, and
will continue to comply, with the provisions of its formation
documents and the laws of the State of Delaware relating to limited
liability companies. RSSW at all times since its formation has
complied, and will continue to comply, with the provision of its
certificate of incorporation and its bylaws and the laws of the State
of Delaware relating to corporations.
(c) All customary formalities regarding the limited liability
company or corporate (as the case may be) existence of each of Lessee
and RSSW have been observed at all times since its formation and will
continue to be observed.
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(d) Each of Lessee and RSSW has at all times since its
formation accurately maintained, and will continue to accurately
maintain, its financial statements, accounting records and other
corporate documents separate from those of its partners, shareholders,
affiliates of its shareholders or partners, and any other person.
Neither Lessee nor RSSW has at any time since its formation
commingled, and neither Leasee nor RSSW will commingle, its assets
with those of its shareholders, partners, any affiliates of its
shareholders or partners, or any other person. Each of Lessee and RSSW
has at all times since its formation accurately maintained, and will
continue to accurately maintain, its own bank accounts and separate
books of account.
(e) Each of Lessee and RSSW has at all times since its
formation paid, and will continue to pay, its own liabilities from its
own separate assets.
(f) Each of Lessee and RSSW has at all times since its
formation identified itself, and will continue to identify itself, in
all dealings with the public, under its own name and as a separate
distinct entity. Neither Lessee nor RSSW has at any time since its
formation identified itself, and neither Lessee nor RSSW will identify
itself, as being a division or a part of any other entity. Neither
Lessee nor RSSW has at any time since its formation identified, and
neither Lessee nor RSSW will identify, its shareholders, partners or
any affiliates of its shareholders or partners, as being a division or
part of it.
(g) Each of Lessee and RSSW has been at all times since its
formation and will continue to be adequately capitalized in light of
the nature of its business.
(h) Neither Lessee nor RSSW has at any time since its
formation assumed or guaranteed, and neither Lessee nor RSSW will
assume or guarantee, the liabilities of its shareholders, members or
partners, any affiliates of its shareholders, members or partners, or
any other persons. Neither Lessee nor RSSW has at any time since its
formation acquired, and neither Lessee nor RSSW will acquire,
obligations or securities of its shareholders, members or partners, or
any affiliates of its shareholders, members or partners. Neither
Lessee nor RSSW has at any time since its formation made, and neither
Lessee nor RSSW will make, loans to its shareholders, members or
partners, or any affiliates of its shareholders, members or partners,
unless such loans are made on terms which are no less favorable to
Lessee or RSSW than would be obtained in a comparable arm's length
transaction with an unrelated third party and Lessee or RSSW acts in
accordance with prudent lending standards to protect itself from
liability in connection with such loans.
(i) Neither Lessee nor RSSW has at any time since its
formation entered into, and neither Lessee nor RSSW has been a party
to, and, neither Lessee nor RSSW will enter into or be a party to, any
transaction with its shareholders, members or partners or any
affiliates of its shareholders, members or partners (other than the
making of distributions to its shareholders, members or partners)
except (x) for this Lease and the lease of the Hyatt Regency
Albuquerque, (y) for loans made by Lessee or RSSW as described in the
last
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sentence of clause (h) above, or (z) in the ordinary course of
business of Lessee or RSSW, as the case may be, on terms which are no
less favorable to Lessee or RSSW, as the case may be, than would be
obtained in a comparable arm's length transaction with an unrelated
third party.
(j) The term "Single Purpose Entity" means a person other
than an individual, which (i) is formed or organized solely for the
purposes set forth in paragraph 38.1 hereinabove, (ii) does not engage
in any business unrelated to the business set forth in paragraph 38.1
hereinabove, (iii) does not have any assets other than those related
to the business described in paragraph 38.1 hereinabove or any
indebtedness other than as permitted by this Lease, (iv) has its own
separate books and records and has its own accounts, in each case
which are separate and apart from the books and records and accounts
of any other person, (v) if a corporation, at all times has an
independent director reasonably acceptable to Lessor, (vi) does not
commingle its assets with the assets of any other person, (vii) does
not guarantee the obligations of any other person and (viii) holds
itself out as being a person separate and apart from any other person.
2. Except as specifically set forth above, all terms and conditions of
the Lease shall remain in full force and effect. All capitalized terms not
otherwise defined herein shall have the meaning given to such terms in the
Lease.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date and year first above written.
LESSOR:
CRESCENT REAL ESTATE FUNDING II, L.P.,
a Delaware limited partnership
BY: CRE MANAGEMENT II CORP., a
Delaware corporation, its
General Partner
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
---------------------------
Its: Senior Vice President, Law
---------------------------
LESSEE:
ROSESTAR SOUTHWEST, LLC, a Delaware
limited liability company
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BY: RSSW CORP., a Delaware corporation,
Its Managing Member
By: /s/ Xxxxxx Xxxxx
----------------------------
Xxxxxx Xxxxx, President
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JOINDER OF ROSESTAR
RoseStar joins in the execution of this First Amendment in order to
evidence its agreement with the terms and conditions of Paragraphs 1 and 2 of
this First Amendment. RoseStar agrees to cooperate with Lessee in providing the
certifications required of Lessee under Paragraph 1 of this First Amendment.
ROSESTAR MANAGEMENT, LLC, a Texas
limited liability company
By: /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
---------------------------
Its: President
---------------------------
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SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT (this "Second Amendment") is
entered into as of the 22nd day of November, 1996 (the "Effective Date"), by
and between CRESCENT REAL ESTATE FUNDING II, L.P., a Delaware limited
partnership ("Landlord"), and ROSESTAR SOUTHWEST, LLC, a Delaware limited
liability company ("Tenant").
RECITALS:
A. Crescent Real Estate Equities Limited Partnership ("CREELP"),
predecessor-in-interest to Landlord, and RoseStar Management, LLC ("Original
Tenant"), predecessor-in-interest to Tenant executed that certain Lease
Agreement dated December 19, 1995 (the "Original Lease"), covering a hotel
facility and related assets located at 000 Xxxxx Xxxxxx XX, Xxxxxxxxxxx,
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxx, and known as "Hyatt Regency Albuquerque"
(collectively, the "Original Leased Property").
B. The Original Lease has been amended by (i) that certain Assignment
and Assumption of Leasehold Estate dated March 29, 1996 (the "Assignment"),
pursuant to which all of Original Tenant's interest and estate as lessee under
the Original Lease was assigned to Tenant, and Tenant assumed all of Original
Tenant's liabilities and obligations under the Original Lease; and (ii) that
certain First Amendment to Lease Agreement dated April 1,1996 (the "First
Amendment"), pursuant to which several articles of the Original Lease were
revised.
C. The Original Lease, as modified by the Assignment and the First
Amendment, is hereinafter referred to as the "Lease". Unless otherwise
expressly provided herein, capitalized terms used herein shall have the same
meanings as designated in the Lease.
D. Landlord and Tenant desire to further amend and modify the Lease in
certain respects as provided herein.
AGREEMENT:
In consideration of the sum of Ten Dollars ($10.00), the mutual
covenants and agreements contained herein and in the Lease, and for other good
and valuable consideration, the receipt and sufficient of which are hereby
acknowledged, Landlord and Tenant hereby further amend and modify the Lease as
follows:
1. Leased Property. Article II of the Lease is hereby modified and
amended to include as part of the Leased Property an additional 9,573 square
feet of Rentable Area situated on the ground floor level of the retail space
located in the southwestern portion of the project commonly known as
Albuquerque Plaza, as shown on Exhibit A attached hereto (the "Expansion
Space"). From
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and after the Effective Date, the term "Leased Property" wherever used in the
Lease or in this Second Amendment shall mean the Original Leased Property,
together with the Expansion Space. Tenant hereby acknowledges that the
Expansion Space is leased by Tenant subject to all terms and conditions of the
Lease, as amended by this Second Amendment.
2. Net Lease Obligations. Article IV of the Lease is hereby modified
and amended to provide that, commencing on the Effective Date, and continuing
throughout the Term of the Lease, Tenant shall pay to Landlord as Net Lease
Obligations (herein so called) for the Expansion Space (in addition to Base
Rent, Percentage Rent, and all Additional Charges for the Original Leased
Property), the Actual Operating Expenses (hereinafter defined) attributable to
the Expansion Space. Actual Operating Expenses shall include all expenses,
costs and disbursements of every kind and nature incurred or paid by Landlord
in connection with the ownership and/or the operation, maintenance, repair and
security of the Expansion Space. All Net Lease Obligations shall be payable in
accordance with the terms and provisions of the Lease.
3. Condition of Expansion Space. TENANT ACCEPTS THE EXPANSION SPACE IN
ITS "AS IS" CONDITION, AND ACKNOWLEDGES THAT LANDLORD MAKING NO REPRESENTATIONS
OR WARRANTIES WHATSOEVER WITH RESPECT THERETO.
4. Time of the Essence. Time is of the essence with respect to
Tenant's execution and delivery of this Second Amendment to Landlord. If Tenant
falls to execute and deliver a signed copy of this Second Amendment to Landlord
by 5:00 p.m. (Albuquerque, New Mexico time), on November 29, 1996, it shall be
deemed null and void and shall have no force or effect, unless otherwise agreed
in writing by Landlord.
5. Binding Effect. Except as modified by this Second Amendment, the
terms and provisions of the Lease shall remain in full force and effect, and
the Lease, as modified by this Second Amendment, shall be binding upon the
parties hereto, their successors and assigns. This Second Amendment shall
become effective only after the full execution and delivery hereof by Landlord
and Tenant and upon the approval by the holder of any mortgage encumbering the
Building.
[Remainder of page intentionally left blank.]
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EXECUTED as of the day and year first above written.
LANDLORD: TENANT:
CRESCENT REAL ESTATE FUNDING ROSESTAR SOUTHWEST, LLC
II, L.P. a Delaware limited partnership a Delaware limited liability company
By: CRE Management II Corp., By: /s/ Xxxxxxx X. Xxxxxxx
a Delaware corporation, ---------------------------
its general partner Name: Xxxxxxx X. Xxxxxxx
---------------------------
Title: President
---------------------------
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
-------------------------------
Title: Senior, Vice President, Law
-------------------------------
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THIRD AMENDMENT TO LEASE AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT (this "Third Amendment") is
entered into as of the 12 day of August 1998, to be effective as of June 1,
1998 (the "Effective Date"), by and between CRESCENT REAL ESTATE FUNDING II,
L.P., a Delaware limited partnership ("Landlord") and ROSESTAR SOUTHWEST,
L.L.C., a Delaware limited liability company ("Tenant")
RECITALS:
A. Crescent Real Estate Equities Limited Partnership,
predecessor-in-interest to Landlord, and RoseStar Management, LLC ("Original
Tenant"), predecessor-in-interest to Tenant executed that certain Lease
Agreement dated December 19, 1995 (the "Original Lease") covering a hotel
facility and related assets located at 000 Xxxxx Xxxxxx XX, Xxxxxxxxxxx,
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxx, and known as "Hyatt Regency Albuquerque"
(collectively, the "Original Leased Property").
B. The Original Lease has been amended by (i) that certain Assignment
and Assumption of Leasehold Estate dated March 29, 1996 (the "Assignment"),
pursuant to which all of Original Tenant's interest and estate as lessee under
the Original Lease was assigned to Tenant, and Tenant assumed all of Original
Tenant's liabilities and obligations is under the Original Lease; (ii) that
certain First Amendment to Lease Agreement dated April 1, 1996 (the "First
Amendment"), pursuant to which several articles of the Original Lease were
revised, and (iii) that certain Second Amendment to Lease Agreement dated
November 22, 1996, pursuant to which the Original Leased Property was expanded
to include an additional 9,573 square feet of Rentable Area located on the
ground floor level of the retail space located in the southwest portion of the
project commonly known as Albuquerque Plaza.
C. The Original Lease, as modified by the Assignment, the First
Amendment, and the Second Amendment is hereinafter referred to as the "Lease".
Unless otherwise expressly provided herein, capitalized terms used herein shall
have the same meanings as designated in the Lease.
D Landlord and Tenant desire to further amend and modify the Lease in
certain respects as provided herein.
AGREEMENT:
In consideration of the sum of Ten Dollars ($10.00), the mutual
covenants and agreements contained herein and in the Lease, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby further amend and modify the Lease as
follows:
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1. Leased Property. Article II of the Lease is hereby modified and
amended to include as part of the Leased Property an additional 1,772 square
feet of Rentable Area situated in Suites E, F, G and H on the ground floor
level of the retail space located in the southwestern portion of the project
commonly known as Albuquerque Plaza, as shown on Exhibit A attached hereto (the
"Second Expansion Space"). Effective as of June 1, 1998 and continuing through
and including May 31, 2000 (the "Second Expansion Space Term"), the term
"Leased Property" wherever used in the Lease or in this Third Amendment shall
mean the Original Leased Property, together with the Expansion Space and the
Second Expansion Space. Tenant hereby acknowledges that the Second Expansion
space is leased by Tenant subject to all terms and conditions of the Lease, as
amended by this Third Amendment.
2. Rent. Commencing on June 1, 1998, and continuing throughout the
Second Expansion Space Term, Tenant shall pay to Landlord, in addition to the
Percentage Rent provided in Section 4.2 of the Lease, an additional payment
(the "Second Expansion Space Percentage Rent") for each month during the Second
Expansion Space Term. The Second Expansion Space Percentage Rent shall be
calculated at the variable Percentage Rent Rate (specified below) of Tenant's
Second Expansion Space Meeting Room Rental Receipts hereinafter defined) per
month pursuant to the following Percentage Rent Schedule:
Percentage Rent Schedule
Second Expansion Space
Meeting Room Rental Receipts Percentage Rent Rate
---------------------------- --------------------
0- $25,000.00 100 %
$25,000.00 and greater 50 %
Tenant shall submit to Landlord on or before the thirtieth (30th) day
following each monthly period during the Second Expansion Space Term hereof
(including the thirtieth (30th) day of the month following the end of the
Second Expansion Space Term) at the place then fixed for the payment of rent,
or at such other place designated by Landlord, a written statement signed by
Tenant, and certified by it to be true and correct, showing in reasonable,
accurate detail, (i) the amount of Second Expansion Space Meeting Room Rental
Receipts for each preceding month and fractional month, if any, and (ii) an
updated list of all scheduled appointments by Clients (hereinafter defined) for
the use of the conference rooms located in the Second Expansion Space. As used
herein, the term "Second Expansion Space Meeting Room Rental Receipts" shall
mean (a) the entire amount charged by Tenant for the full price at the time of
the initial transaction for all meeting room rentals whether for cash or
credit; (b) the gross amount received or charged by Tenant for meeting room
rentals pursuant to orders received by telephone, mail, or any other means, and
attributable to the Premises whether or not filled elsewhere; and (c) all gross
room rental income of Tenant from any operation in, at, from or through the use
of the Premises. Excluded from the calculation of Second Expansion Space
Meeting Room Rental Receipts are (i) cash refunded or credit allowed to
customers; and (ii) sales taxes, excise taxes, other similar taxes. Tenant
shall not barter with any Clients (hereinafter
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defined) or enter into any agreement with a Client which would circumvent the
payment of rental for meeting rooms located in the Second Expansion Space.
Tenant shall also submit to Landlord on or before the sixtieth (60th)
day following the end of each year at the place then fixed for the payment of
rent, a written statement signed by Tenant, and certified to be true and
correct showing in reasonably accurate detail, satisfactory in scope to
Landlord, the amount of Meeting Room Rental Receipts during the preceding
calendar year. The written statement shall be duly certified to Landlord by an
authorized officer of Tenant. The accounting statement referred to in this
Paragraph 2 shall be in such form and style and contain such details and
breakdown as the Landlord may reasonably require.
If Tenant fails to timely submit to Landlord either the monthly or
annual written statement described in this Xxxxxxxxx 0, Xxxxxxxx may, in
addition to any other remedies Landlord has, retain a certified public
accountant, at Tenant's sole expense, to prepare such statements and to perform
all inspections and audits related thereto.
Tenant shall pay to Landlord at the time of delivery of the monthly
written statement, but in no event later than the thirtieth (30th) day
following each monthly period during the Second Expansion Term, an amount equal
to the Second Expansion Space Meeting Room Rental Receipts during such month
times the applicable Percentage Rent Rate specified in the Percentage Rent
Schedule above.
3. Actual Operating Expenses. Article IV of the Lease is hereby
modified and amended to provide that, commencing on June 1, 1998, and
continuing throughout the Second Expansion Space Term, Tenant shall pay to
Landlord as additional rental for the Second Expansion Space (in addition to
the Second Expansion Space Percentage Rent for the Second Expansion Space, and
in addition to the Base Rent, Percentage Rent, Net Lease Obligations and all
Additional Charges for the Original Leased Property and the Expansion Space),
the Actual Operating Expenses (as defined herein) attributable to the Second
Expansion Space. Actual Operating Expenses shall include all expenses, costs
and disbursements of every kind and nature incurred or paid by Landlord in
connection with the ownership and/or the operation, maintenance, repair and
security of the Second Expansion Space. All Actual Operating Expenses shall be
payable in accordance with the terms and provisions of the Lease.
4. Maintenance of Second Expansion Space. Tenant shall have the right
to clean, maintain and repair the Second Expansion Space so long as Tenant
submits to Landlord plans and specifications and obtains prior written consent
of Landlord before making any alterations to the Second Expansion Space. All
work done by Tenant shall be performed in a good and workmanlike manner by a
contractor approved by Landlord, in compliance with Applicable Laws
(hereinafter defined) and at such times and in such manner as not to cause
interference with construction in progress or with other tenants in the
Building. As used herein, the term "Applicable Laws" shall mean all laws,
statutes, ordinances, regulations, guidelines or requirements now in force or
hereafter enacted and the requirements of any governmental authority having
jurisdiction over the Building,
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board of fire underwriters, utility company serving the Building or other
similar body now or hereafter constituted, relating to or affecting the
condition, use or occupancy of the Premises, including without limitation,
Title III of The Americans with Disabilities Act of 1990, all regulations
issued thereunder, and the Accessibility Guidelines for Buildings and
Facilities issued pursuant thereto, as the same are in effect on the date of
this Third Amendment and as hereafter amended.
5. Termination Option. Tenant will use the Second Expansion Space to
schedule appointments with Tenant's clients ("Clients") for the use of
conference rooms located in the Second Expansion Space. Landlord shall have the
option to terminate the Lease with respect to the Second Expansion Space at
anytime after the earlier to occur of (i) May 31, 2000, or (ii) the last date
that the conference room is booked for use by any of such Clients (the
"Earliest Termination Date"), provided Landlord gives notice thereof to Tenant
not less than ten (10) days prior to the Earliest Termination Date. Such notice
must specify the date (which cannot be prior to the Earliest Termination Date)
on which Landlord desires the termination to become effective (the " Actual
Termination Date"). Tenant must pay in full, on or before the Actual
Termination Date all Second Expansion Space Percentage Rent, Actual Operating
Expenses, additional rent, and all other sums due by Tenant under this Lease
through and including the Actual Termination Date. After Landlord's receipt of
such sums, and so long as Tenant has surrendered the Premises, including the
alterations, improvements and changes, other than Tenant's fixtures remaining
the property of Tenant, broom-clean and in the condition the same were in on
the commencement date for the Second Expansion Space, subject only to (i)
ordinary and customary wear and tear, and (ii) damage resulting from a fire or
other casualty. in the condition required under this Lease, neither party shall
have any rights, liabilities or obligations under this Lease for the period
accruing after the Actual Termination Date, except those which, by the
provisions of the Lease, expressly survive the termination of the Lease, as
modified by this Third Amendment.
6. Condition of Expansion Space. TENANT ACCEPTS THE SECOND EXPANSION
SPACE IN ITS "AS IS" CONDITION, AND ACKNOWLEDGES THAT LANDLORD MAKES NO
REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT THERETO.
7. Time of the Essence. Time is of the essence with respect to
Tenant's execution and delivery of this Second Amendment to Landlord. If Tenant
fails to execute and deliver a signed copy of this Second Amendment to Landlord
by 5:00 p.m. (Albuquerque, New Mexico time), on July 27, 1998, it shall be
deemed null and void and shall have no force or effect, unless otherwise agreed
in writing by Landlord. Landlord's acceptance, execution and retrrrn of this
document shall constitute Landlord's agreement to waive Tenant's failure to
meet the foregoing deadline.
8. Binding Effect. Except as modified by this Third Amendment, the
terms and provisions of the Lease shall remain in full force and effect, and
the Lease, as modified by this Third Amendment, shall be binding upon the
parties hereto, their successors and assigns. This Third Amendment shall become
effective only after the full execution and delivery hereof by Landlord and
Tenant and upon the approval by the holder of any mortgage encumbering the
Building.
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15
EXECUTED as of the day and year first above written.
LANDLORD: TENANT:
CRESCENT REAL ESTATE FUNDING ROSESTAR SOUTHWEST, LLC
II, L.P. a Delaware limited partnership a Delaware limited liability company
By: CRE Management II Corp., By: /s/ Xxxxxxx X. Xxxxxxx
a Delaware corporation, ---------------------------
its general partner Name: Xxxxxxx X. Xxxxxxx
---------------------------
Title: President
---------------------------
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------
Title: Vice President, Corporate
-------------------------------
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