<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
- ------ EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1997
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
- ------ EXCHANGE ACT OF 1934
For the transition from to
------------------ -----------------
Commission file number 1-11723
------------------------
WYNDHAM HOTEL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 75-2636072
- ------------------------------- -------------------
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2001 Bryan Street, Suite 2300
Dallas, Texas 75201
- ---------------------------------------- ----------
(address of principal executive offices) (Zip Code)
(214) 863-1000
----------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorten period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirement for the past 90 days.
YES [X] NO [ ]
The number of shares outstanding of the issuer's common stock as of November 12,
1997: Common Stock, $.01 par value - 21,618,310 shares.
<PAGE> 2
WYNDHAM HOTEL CORPORATION
FORM 10-Q FOR THE QUARTER ENDED SEPTEMBER 30, 1997
INDEX
<TABLE>
<CAPTION>
PART I - FINANCIAL INFORMATION PAGE
----
<S> <C>
ITEM 1. FINANCIAL STATEMENTS (UNAUDITED)
Consolidated Balance Sheets - December 31, 1996 and September 30, 1997.................................... 3
Consolidated Statements of Income - Quarter and Nine Months Ended September 30, 1996 and 1997............. 4
Consolidated Statements of Cash Flows - Nine Months Ended September 30, 1996 and 1997..................... 5
Notes to Consolidated Financial Statements................................................................ 6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Overview.................................................................................................. 14
Results of Operations..................................................................................... 17
Liquidity and Capital Resources........................................................................... 21
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS................................................................................ 22
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K................................................................. 22
SIGNATURES................................................................................................ 32
</TABLE>
2
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PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
WYNDHAM HOTEL CORPORATION
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
1996 1997
------------ ------------
(UNAUDITED)
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents ............................................ $ 11,517 $ 14,819
Cash, restricted ..................................................... 865 936
Accounts receivable, less allowance of $941 at December 31, 1996
and $2,063 at September 30, 1997 ................................... 13,330 15,682
Due from affiliates .................................................. 12,686 16,484
Inventories .......................................................... 1,430 1,887
Deferred income taxes ................................................ 1,539 1,975
Other ................................................................ 1,412 6,894
------------ ------------
Total current assets ............................................. 42,779 58,677
Investment in hotel partnerships .......................................... 1,125 4,092
Notes and other receivables from affiliates ............................... 7,685 8,316
Notes receivable .......................................................... 6,307 1,931
Property and equipment, net ............................................... 134,176 290,391
Management contract costs, net ............................................ 7,766 10,119
Security deposits ......................................................... 15,288 24,168
Deferred income taxes ..................................................... 14,148 14,372
Other ..................................................................... 13,688 17,376
Goodwill .................................................................. -- 20,857
------------ ------------
Total assets ..................................................... $ 242,962 $ 450,299
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued expenses ................................ $ 23,556 $ 45,756
Deposits ............................................................. 959 1,652
Deposits from affiliates ............................................. 344 344
Current portion of long-term debt and capital lease obligations ...... 510 1,320
------------ ------------
Total current liabilities ........................................ 25,369 49,072
------------ ------------
Borrowings under revolving credit facility ................................ -- 72,000
Long-term debt and capital lease obligations .............................. 129,944 155,666
Deferred income taxes ..................................................... -- 20,970
Deferred gain ............................................................. 12,065 11,511
------------ ------------
142,009 260,147
------------ ------------
Minority interest ......................................................... -- 2,828
------------ ------------
Stockholders' equity:
Common stock ......................................................... 200 216
Additional paid-in capital ........................................... 84,342 133,137
Retained earnings .................................................... 11,714 22,668
Receivables from affiliates .......................................... (1,223) (1,229)
Notes receivable from stockholders ................................... (19,449) (17,138)
Unrealized gain on securities available for sale ..................... -- 790
Foreign currency translation adjustments ............................. -- (192)
------------ ------------
Total stockholders' equity ....................................... 75,584 138,252
------------ ------------
Total liabilities and stockholders' equity ................... $ 242,962 $ 450,299
============ ============
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
3
<PAGE> 4
WYNDHAM HOTEL CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
QUARTER ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
---------------------- ----------------------
1996 1997 1996 1997
--------- --------- --------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C>
Revenues:
Hotel revenues ................................... $ 30,388 $ 45,310 $ 71,302 $ 128,670
Management fees .................................. 1,953 2,472 6,434 6,751
Management fees - affiliates ..................... 4,015 5,301 10,112 13,816
Service fees ..................................... 426 766 1,111 1,973
Service fees - affiliates ........................ 763 726 1,850 1,817
Reimbursements ................................... 1,503 1,761 4,636 4,934
Reimbursements - affiliates ...................... 2,386 2,484 6,176 6,495
Other ............................................ (19) 95 320 800
--------- --------- --------- ---------
Total revenues ............................... 41,415 58,915 101,941 165,256
--------- --------- --------- ---------
Operating costs and expenses:
Hotel expenses ................................... 23,923 34,091 52,227 96,275
Selling, general and administrative expenses ..... 4,373 5,729 12,877 16,335
Equity participation compensation ................ -- -- 2,919 --
Reimbursable expenses ............................ 1,503 1,761 4,636 4,934
Reimbursable expenses - affiliates ............... 2,386 2,484 6,176 6,495
Depreciation and amortization .................... 2,151 3,581 5,609 8,789
Merger expenses .................................. -- 913 -- 3,632
--------- --------- --------- ---------
Total operating costs and expenses ........... 34,336 48,559 84,444 136,460
--------- --------- --------- ---------
Operating income ...................................... 7,079 10,356 17,497 28,796
Interest income ....................................... 539 503 982 1,371
Interest income - affiliates .......................... 180 184 536 688
Interest expense ...................................... (3,407) (4,664) (8,462) (11,788)
Equity in earnings of hotel partnerships .............. -- 120 870 120
Amortization of deferred gain ......................... 185 185 320 554
--------- --------- --------- ---------
Income before minority interests, income taxes and
extraordinary item .................................... 4,576 6,684 11,743 19,741
Income attributable to minority interests ............. -- -- 571 --
--------- --------- --------- ---------
Income before income taxes and extraordinary item ..... 4,576 6,684 11,172 19,741
Income tax (provision) benefits ....................... (1,807) (3,008) 10,388 (9,240)
--------- --------- --------- ---------
Income before extraordinary item ...................... 2,769 3,676 21,560 10,501
Extraordinary item (less applicable income tax benefits
of $270 for 1996 and $195 for 1997, respectively ) .... -- (298) (1,131) (298)
--------- --------- --------- ---------
Net income ............................................ $ 2,769 $ 3,378 $ 20,429 $ 10,203
========= ========= ========= =========
Earnings per share:
Income before extraordinary item - primary and
fully diluted .................................... $ .14 $ .17 $ 1.08 $ .52
Extraordinary item ............................... -- (.01) (.06) (.02)
--------- --------- --------- ---------
Net income - primary and fully diluted ........... $ .14 $ .16 $ 1.02 $ .50
========= ========= ========= =========
Average number of common shares outstanding ........... 20,018 21,097 20,018 20,382
========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
4
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WYNDHAM HOTEL CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
1996 1997
--------- ---------
(UNAUDITED)
<S> <C> <C>
Cash flows from operating activities:
Net income ..................................................... $ 20,429 $ 10,203
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization ................................ 5,168 7,862
Current income taxes ......................................... 2,569 8,916
Deferred income taxes ........................................ (12,958) 129
Provision for bad debt ....................................... 628 1,283
Amortization of deferred debt issuance costs ................. 441 927
Write-off of predecessor deferred debt issuance costs ........ 1,401 493
Amortization of deferred gain ................................ (312) (691)
Equity in earnings of hotel partnership ...................... -- (120)
Equity participation compensation ............................ 2,919 --
Minority interest ............................................ 571 --
Net withdrawals from restricted cash ......................... 2,196 (71)
Changes to operating assets and liabilities:
Accounts receivable .......................................... (3,887) (3,424)
Net change in due to/from affiliates ......................... (10,405) (3,739)
Other ........................................................ (1,273) (7,345)
Accounts payable and accrued expenses ........................ 10,409 471
Deposits ..................................................... (1,672) 362
Security deposits ............................................ (13,676) (6,917)
--------- ---------
Net cash provided by operating activities ................. 2,548 8,339
--------- ---------
Cash flows from investing activities:
Purchase of property and equipment ............................. (4,964) (23,085)
Proceeds from sale of property and equipment ................... 136,374 --
Investments in management contracts ............................ (575) (2,724)
Advances on notes receivable ................................... (11) (1,616)
Payment for purchase of hotels, net of cash acquired ........... (33,470) (8,205)
Purchase of equity investment in hotel partnerships ............ -- (2,848)
Acquisition of minority interest ............................... (5,479) --
Increase in long-term restricted cash .......................... (1,650) (140)
Collections on notes receivable ................................ 1,724 137
--------- ---------
Net cash provided by (used in) investing activities ....... 91,949 (38,481)
--------- ---------
Cash flows from financing activities:
Partners' contributed capital .................................. 4,801 --
Partners' capital distributions ................................ (29,593) --
Distribution made to withdrawing partners ...................... (982) --
Increase in payable to minority interest ....................... (218) --
Proceeds from borrowings under revolving credit facility ....... -- 78,750
Repayments of revolving credit facility ........................ -- (6,750)
Proceeds from issuance of common stock ......................... 69,504 --
Proceeds from long-term borrowings and issuance of debt ........ 94,383 9,675
Repayments of long-term borrowings and capital lease obligations (197,516) (51,293)
Collections/(advances) on notes receivable from stockholders ... (18,889) 3,062
--------- ---------
Net cash provided by (used in) financing activities ....... (78,510) 33,444
--------- ---------
Increase in cash and cash equivalents .............................. 15,987 3,302
Cash and cash equivalents at beginning of period ................... 4,160 11,517
--------- ---------
Cash and cash equivalents at end of period ......................... $ 20,147 $ 14,819
========= =========
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
5
<PAGE> 6
WYNDHAM HOTEL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION:
Wyndham Hotel Corporation ("WHC") was incorporated and formed in
February 1996. The accompanying consolidated financial statements of WHC at
December 31, 1996 and September 30, 1997 and for the period from May 24,
1996 through September 30, 1996 and the quarter and nine months ended
September 30, 1997 include the accounts of WHC, its wholly owned
subsidiaries and certain equity interests in hotel partnerships
(collectively, the "Company"). Financial statements for the period from
January 1, 1996 through May 24, 1996 relating to the period prior to the
Company's initial public offerings include the combined accounts of WHC,
its majority owned entities and a 30% owned hotel entity which was
accounted for using the equity method. All significant intercompany
balances and transactions have been eliminated.
These unaudited consolidated financial statements have been prepared in
accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Rule 10-01
of Regulation S-X. They do not include all of the information and footnotes
required by generally accepted accounting principles for complete financial
statements. In the opinion of management, all adjustments (consisting of
normal recurring accruals) considered necessary for a fair presentation at
September 30, 1997 have been included. Operating results for the quarter
and nine months ended September 30, 1997 are not necessarily indicative of
the operating results for the year ending December 31, 1997. These
financial statements should be read in conjunction with the consolidated
financial statements and footnotes thereto included in the annual report on
Form 10-K of the Company for the year ended December 31, 1996.
Certain prior period amounts have been reclassified to conform to the
current period presentation.
2. PROPOSED MERGER WITH PATRIOT AMERICAN HOSPITALITY, INC.:
On April 14, 1997, the Company entered into a merger agreement with
Patriot American Hospitality, Inc. ("Patriot"), (as amended, the "Patriot
Merger Agreement"), pursuant to which the Company will merge with and into
the successor to Patriot ("New Patriot REIT") following Patriot's merger
with and into California Jockey Club (the "Cal-Jockey Merger"), with New
Patriot REIT being the surviving company (the "Patriot Merger"). Patriot
also entered into a related stock purchase agreement with the principal
stockholder of the Company (the "Stock Purchase Agreement"), to acquire all
of such stockholder's shares of the Company's common stock (the "Stock
Purchase.") The Cal-Jockey Merger was completed on July 1, 1997. As a
result of the Patriot Merger and the Stock Purchase, New Patriot REIT will
acquire all of the outstanding shares of common stock of the Company.
Pursuant to the Patriot Merger Agreement and the Stock Purchase Agreement,
each outstanding share of common stock of the Company ("Wyndham Common
Stock") generally will be converted into the right to receive 1.372 shares
(the "Patriot Exchange Ratio") of common stock of each of New Patriot REIT
and Patriot American Hospitality Operating Company ("New Patriot Operating
Company"), which shares will be paired and transferable and trade together
only as a single unit (the "Paired Shares"). The Patriot Exchange Ratio is
subject to adjustment in the event that the average of the closing prices
of the Paired Shares on the twenty trading days preceding the fifth trading
day prior to the Company's stockholders' meeting called to approve the
Patriot Merger (the "Average Trading Price") is less than $21.86 per Paired
Share. If the Average Trading Price is between $21.86 and $20.87 per Paired
Share, the Patriot Exchange Ratio will be adjusted so that each outstanding
share of Wyndham Common Stock will be converted into the right to receive a
number of Paired Shares equal to $30.00 divided by the Average Trading
Price. If the Average Trading Price is less than $20.87 per Paired Share,
there will be no further adjustments to the Patriot Exchange Ratio, which
at that point would equate to 1.438 Paired Shares per share of Wyndham
Common Stock; however, in such circumstances, the Company has the right,
waivable by it, to terminate the Patriot Merger Agreement without
liability. In lieu of receiving Paired Shares, the Company's stockholders
have the right to elect to receive cash in an amount per share equal to
the Patriot Exchange Ratio (as it may be adjusted) multiplied by the
average of the closing prices of the Paired Shares on the five trading
days
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immediately preceding the closing of the Patriot Merger, up to a maximum
aggregate amount of $100 million. If stockholders holding shares of Wyndham
Common Stock with a value in excess of this amount elect to receive cash,
such cash will be allocated on a pro rata basis among such stockholders in
accordance with the Patriot Merger Agreement. In connection with the
Patriot Merger, New Patriot REIT will assume the Company's existing
indebtedness, which was approximately $229.0 million as of September 30,
1997.
In connection with the execution of the Patriot Merger Agreement,
Patriot also entered into agreements with partnerships affiliated with
members of the Trammell Crow family providing for the acquisition by New
Patriot REIT of up to 11 full-service Wyndham branded hotels with 3,072
rooms, located throughout the United States, for approximately $331.7
million in cash, plus approximately $14 million in additional consideration
if two hotels meet certain operational targets (the "Crow Acquisition" and,
collectively with the Patriot Merger and the Stock Purchase, the "Proposed
Patriot Transactions"). The Patriot Merger and the Crow Acquisition, which
will be consummated concurrently, are subject to various conditions
including, without limitation, the approval of the Patriot Merger and
certain of the related transactions by the stockholders of New Patriot
REIT, New Patriot Operating Company and the Company. It is currently
anticipated that the stockholder meetings to approve the Proposed Patriot
Transactions will occur in the fourth quarter of 1997.
On April 14, 1997, an action styled Kwalbrun v. James D. Carreker, et.
al., was filed in the Delaware Court of Chancery in and for New Castle
County, purportedly as a class action on behalf of the Company's
stockholders, against the Company and the members of the Board of Directors
of the Company. The complaint also purported to name Patriot as a
defendant, but Patriot has not been served with the complaint. The
complaint alleges that the Company's Board of Directors breached its
fiduciary duties owed to the Company's public stockholders in connection
with the Board of Director's approval of the Patriot Merger. In particular,
the complaint alleges that the Patriot Merger was negotiated at the expense
of the Company's public stockholders, and that the Company's Board of
Directors permitted Patriot to negotiate on more favorable terms the Crow
Acquisition with members of the Trammell Crow family. The complaint seeks
to enjoin, preliminarily and permanently, consummation of the Patriot
Merger under the terms presently proposed and also seeks unspecified
damages. The defendants deny the allegations in the complaint and expect to
defend the action vigorously.
3. FEDERAL INCOME TAXES:
Since the Company's formation in 1996, federal income taxes have been
provided in accordance with Statement of Financial Accounting Standards No.
109. For the quarter and nine months ended September 30, 1996, income taxes
included the effect of recording deferred income tax benefits arising as a
result of the Company's incorporation in the amount of $13.0 million.
4. EARNINGS PER SHARE:
Earnings per share for the quarter and nine months ended September 30,
1996 and 1997 are computed based on the weighted average number of shares
of common stock outstanding. The impact of common stock equivalents to
earnings per share is immaterial.
In February 1997, the Financial Accounting Standard Board issued
Statement of Financial Accounting Standards No. 128 ("SFAS 128"), Earnings
Per Share ("EPS"). SFAS 128 requires basic EPS to be computed by dividing
income available to common stockholders by the weighted-average number of
common shares outstanding for the period and diluted EPS to reflect the
potential dilution that could occur if securities or other contracts to
issue common stock were exercised or converted into common stock or
resulted in the issuance of common stock that then shared in the earnings
of the entity. SFAS 128 is effective for financial statements issued for
periods ending after December 15, 1997 and requires restatement of all
prior period EPS data presented. Earlier application is not permitted.
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The impact of the implementation of SFAS 128 on the Company's
consolidated financial statements is expected to be immaterial. If SFAS 128
were adopted, basic EPS and diluted EPS would have been as follows:
<TABLE>
<CAPTION>
QUARTER ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------- -------------------
1996 1997 1996 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Basic EPS:
Income before extraordinary item $.14 $ .17 $ .08 $.51
Net income ..................... .14 .16 1.02 .50
Diluted EPS:
Income before extraordinary item $.14 $.17 $1.06 $.51
Net income ..................... .14 .16 1.00 .49
</TABLE>
5. ACQUISITIONS AND RELATED BORROWINGS:
On July 31, 1997, the Company acquired Kansas City-based ClubHouse
Hotels, Inc., ("ClubHouse") a privately held chain of 17 hotels operating
in the mid-scale segment of the lodging industry. The acquisition added
2,456 rooms, or approximately 10% to the Company's current portfolio of
hotels open or under construction. In connection with the acquisition of
ClubHouse, the Company acquired direct or indirect ownership of 13
ClubHouse hotels, ownership of partial interests in three additional
managed ClubHouse hotels, ownership of the ClubHouse Inns brand name and
one license for a franchised ClubHouse hotel. The terms of the merger and
related transactions were reached following arms-length negotiations among
the parties involved. The total consideration paid by the Company in
connection with the merger and related transactions included (1) the
issuance of 1,599,448 shares of common stock of the Company pursuant to the
merger (with the total number of shares issuable subject to a working
capital adjustment to be made in the future), (2) the assumption of
approximately $23.5 million of debt and (3) the payment of approximately
$55.6 million in cash. The cash portion of the purchase price was borrowed
under the Company's revolving credit facility with Bankers Trust Company,
as agent for a group of financial institutions.
In connection with the acquisition of ClubHouse, the Company amended
the revolving credit facility to (i) increase the aggregate amount of the
credit facility by $50 million to a total of $150.0 million, (ii) make
certain revisions to the method of calculating the borrowing base, (iii)
amend certain financial covenants, (iv) permit the Company to make certain
debt and equity investments and (v) make certain other amendments.
On September 26, 1997, the Company elected to fund a cash shortfall
related to renovation costs and assumed a 67.5% interest in a hotel
partnership, as the owner of the hotel partnership failed to fund the
shortfall. The Company contributed and converted its outstanding note
receivable and accrued interest thereon totaling $5.9 million to equity.
6. MERGER EXPENSES:
During the quarter and nine months ended September 30, 1997, the
Company incurred merger expenses totaling $913,000 and $3.6 million,
respectively, in connection with the Patriot Merger. These expenses were
incurred for legal services, investment banker fees and certain other
professional fees. If the merger is consummated, the Company will incur
additional investment banker fees of approximately $4.2 million.
7. TERMINATION OF A MANAGEMENT AGREEMENT:
On July 25, 1997, the Company agreed to the termination of its
management relationship with Homegate Hospitality Inc. ("Homegate") which
operates extended-stay hotels. The termination was effective October 31,
1997 as a result of the pending merger of Homegate with another company in
the lodging industry and is conditioned upon the completion of such
merger. The Company will receive $12.0 million in exchange for the
termination. In 1996, the Company and Homegate entered into an agreement
under which the Company would manage up to 60 Homegate mid-price
extended-stay hotels as they were
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purchased or developed by Homegate prior to December 31, 1998. The Company
managed 9 of these hotels at September 30, 1997.
8. COMMITMENTS AND CONTINGENCIES:
Litigation has been initiated against the Company pertaining to the
right to use the Wyndham name for hotel service in the New York
metropolitan area. On January 29, 1996, a temporary restraining order was
issued by the Supreme Court of the State of New York which, pending the
outcome of a trial, prevents the Company from using the Wyndham name in the
New York area. An adverse decision in the litigation could prevent the
Company from operating Wyndham brand hotels or advertising the Wyndham name
in connection with the operation of a Wyndham brand hotel within a 50 mile
radius of a hotel in Manhattan operated under the "Wyndham" name. It is
management's opinion, based on legal counsel, that the range of losses
resulting from the ultimate resolution of the aforementioned claim cannot
be determined. The cost of $1.3 million at September 30, 1997 for defending
the trademark has been capitalized and is being amortized over 17 years,
pending the ultimate resolution. An adverse decision may result in the
immediate write-off of those capitalized costs.
The Company received a Notice of Intent to make Sales and Use Tax audit
changes from the Tampa Region of the Florida Department of Revenue for the
period from July 31, 1990 through June 30, 1995. The audit assessed
additional taxes of $584,000, penalty of $224,000 and interest of $201,000
for a total assessment of $1,009,000. The previous owners (an affiliate)
have agreed to indemnify the Company with respect to any additional sales
and use tax paid by the Company for the audit period. Management, after
review and consultation with legal counsel, believes the Company has
meritorious defenses to this matter and that any potential liability in
excess of the $189,000 accrued in the financial statements would not
materially effect the Company's consolidated financial statements.
The Company is the subject of the class action lawsuit described under
Note 2 above. The Company has pending several other claims incurred in the
normal course of business which, in the opinion of management, based on the
advice of legal counsel, will not have a material effect on the
consolidated financial statements.
Pursuant to the terms of a management agreement with an affiliate-owned
hotel under construction, the Company has undertaken certain commitments to
provide furniture, fixtures and equipment for the hotel at a fixed price
totaling $6.0 million. As of September 30, 1997, the Company has satisfied
commitments totaling $4.8 million.
The Company has also guaranteed to fund up to $230,000 in working
capital per year for three years on a hotel in the event that the hotel
generates inadequate cash flow and the Company has guaranteed $875,000 of
its indebtedness. The Company has not to date been required to make any
capital contribution under the guarantee.
Pursuant to the terms of a management agreement of a hotel in which the
Company has a 30% ownership interest, the Company has committed to loan up
to $2.5 million for the renovation of the hotel property. The loan will
bear an interest rate of 10% and will be collateralized by the outstanding
partnership interest of the owners. Interest will be due monthly and
principal is payable in installments beginning January 1998 based on the
operating income of the hotel. As of September 30, 1997, the Company has
made $619,000 of such advances. The Company also guarantees $2,340,000 in
indebtedness of this hotel.
Pursuant to the terms of a management agreement of a hotel owned by an
affiliate, the Company has guaranteed to fund up to $600,000 of working
capital per year to the extent the entity experiences operating deficits,
with a maximum required contribution of $2.3 million over the term of the
guarantee extending from 1995 to 2000. The Company has not to date been
required to make any capital contribution under the guarantee.
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The Company is subject to environmental regulations related to the
ownership, management, development and acquisition of real estate (hotels).
The cost of complying with the environmental regulations was not material
to the Company's consolidated statements of income for the nine months
ended September 30, 1996 and 1997. The Company is not aware of any
environmental condition on any of its properties which is likely to have a
material adverse effect on the Company's financial statements.
9. PRO FORMA FINANCIAL INFORMATION:
The pro forma condensed consolidated statements of income of the
Company are presented as if the ClubHouse Merger had occurred on January 1,
1996. These pro forma condensed consolidated statements are presented for
informational purposes only and are not necessarily indicative of what
actual results of operations of the Company would have been assuming such
transactions had been completed as of January 1, 1996, nor do they purport
to represent the results of operations for future periods.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
1996 1997
---------- ----------
(IN THOUSANDS, EXCEPT
PER SHARE AMOUNTS)
<S> <C> <C>
Total revenues $ 128,121 $ 186,204
Operating income 25,319 34,102
Income before extraordinary item 23,124 21,337
Earnings before extraordinary item per common share outstanding 1.07 .56
</TABLE>
10. CONDENSED COMBINED FINANCIAL INFORMATION OF GUARANTOR SUBSIDIARIES:
In connection with the issuance of the $100 million subordinated notes
("Notes"), all of the Company's direct and indirect subsidiaries, with the
exception of a number of subsidiaries (which subsidiaries are individually
and collectively inconsequential), are fully and unconditionally
guaranteeing the Company's obligations under the Notes on a joint and
several basis (the "Guarantor Subsidiaries"). Accordingly, the condensed
combined financial information set forth below summarizes financial
information for all of the Guarantor Subsidiaries on a combined basis.
Separate complete financial statements and other disclosure for the
Guarantor Subsidiaries have not been presented because management does not
believe that such information is material to investors. The condensed
combined financial information of the Guarantor Subsidiaries as of December
31, 1996 and September 30, 1997, and for the quarter and nine months ended
September 30, 1996 and 1997 are presented as follows:
10
<PAGE> 11
GUARANTOR SUBSIDIARIES
CONDENSED COMBINED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
1996 1997
------------ ------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents ..................................... $ 9,673 $ 17,725
Cash, restricted .............................................. 865 469
Accounts receivable, net ...................................... 22,085 40,815
Other ......................................................... 2,466 4,159
------------ ------------
Total current assets ...................................... 35,089 63,168
Notes and other receivables from affiliates ........................ 7,685 8,316
Notes receivable ................................................... 1,978 1,931
Investments in hotel partnerships .................................. -- 3,907
Property and equipment, net ........................................ 61,062 190,374
Management contract costs, net ..................................... 8,166 10,119
Security deposits .................................................. 15,105 24,041
Other .............................................................. 2,502 5,279
------------ ------------
Total assets .............................................. $ 131,587 $ 307,135
============ ============
LIABILITIES AND STOCKHOLDER'S EQUITY
Current liabilities:
Accounts payable and accrued expenses ......................... $ 18,169 $ 32,139
Deposits ...................................................... 1,147 1,365
Current portion of long-term debt and capital lease obligations 510 1,070
Due to affiliates ............................................. 42,666 164,002
------------ ------------
Total current liabilities ................................ 62,492 198,576
------------ ------------
Long-term debt and capital lease obligations ....................... 29,944 52,440
------------ ------------
Minority interest .................................................. -- 3,369
------------ ------------
Stockholder's equity:
Receivable from affiliates .................................... (1,223) (1,229)
Additional paid-in capital .................................... 31,071 31,071
Retained earnings ............................................. 9,303 22,908
------------ ------------
Total stockholder's equity ................................ 39,151 52,750
------------ ------------
Total liabilities and stockholder's equity ........... $ 131,587 $ 307,135
============ ============
</TABLE>
See note to the condensed combined financial information.
11
<PAGE> 12
GUARANTOR SUBSIDIARIES
CONDENSED COMBINED STATEMENTS OF INCOME
(IN THOUSANDS)
<TABLE>
<CAPTION>
QUARTER ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
---------------------- ----------------------
1996 1997 1996 1997
--------- --------- --------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C>
Revenues ........................................ $ 33,422 $ 40,441 $ 82,280 $ 126,463
--------- --------- --------- ---------
Operating costs and expenses .................... 25,514 34,668 61,298 97,362
Depreciation and amortization ................... 1,180 2,281 3,352 5,174
--------- --------- --------- ---------
Total operating costs and expenses ..... 26,694 36,949 64,650 102,536
--------- --------- --------- ---------
Operating income ................................ 6,728 3,492 17,630 23,927
Interest expense, net ........................... (338) (596) (2,128) (1,079)
Equity in earnings of hotel partnerships......... -- 118 870 118
--------- --------- --------- ---------
Income before minority interests, income taxes
and extraordinary item .......................... 6,390 3,014 16,372 22,966
Income (loss) attributable to minority interests -- (15) 571 (15)
--------- --------- --------- ---------
Income before income taxes and extraordinary item 6,390 3,029 15,801 22,981
Income taxes .................................... 2,524 1,197 3,325 9,078
--------- --------- --------- ---------
Income before extraordinary item ................ 3,866 1,832 12,476 13,903
Extraordinary item (less applicable taxes) ...... -- (298) (1,028) (298)
--------- --------- --------- ---------
Net income ............................. $ 3,866 $ 1,534 $ 11,448 $ 13,605
========= ========= ========= =========
</TABLE>
See note to the condensed combined financial information.
12
<PAGE> 13
GUARANTOR SUBSIDIARIES
CONDENSED COMBINED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
----------------------------
1996 1997
------------ ------------
(UNAUDITED)
<S> <C> <C>
Net cash provided by operating activities .................. $ 3,618 $ 16,694
------------ ------------
Cash flows from investing activities:
Purchase of property and equipment ...................... (3,581) (9,985)
Sale of property and equipment .......................... 133,778 --
Investments in management contracts ..................... (575) (2,724)
Advances notes receivable from affiliates ............... (11) (619)
Advances on other notes receivable ...................... -- (53)
Advances on collection on notes receivables ............. -- 117
Payment for purchase of hotels, net of cash acquired .... (2,520) --
Acquisition of minority interest ........................ (5,479) --
Decrease (increase) in long-term restricted cash ........ (1,296) 778
Other ................................................... 1,674 --
------------ ------------
Net cash provided by (used in) investing activities 121,990 (12,486)
------------ ------------
Cash flows from financing activities:
Partners' contributed capital ........................... 26,502 --
Partners' capital distributions ......................... (42,572) --
Decrease (increase) in receivables from affiliates ...... 5,327 (20,726)
Increase in payables to affiliates ..................... 32,379 25,105
Decrease in payable to minority interest ................ (218) --
Proceeds from long-term borrowings ...................... 2,500 9,675
Repayment of long-term debt and capital lease obligations (148,195) (10,210)
------------ ------------
Net cash provided by (used in) financing activities (124,277) 3,844
------------ ------------
Increase in cash and cash equivalents ...................... 1,331 8,052
Cash and cash equivalents at beginning of period ........... 3,708 9,673
------------ ------------
Cash and cash equivalents at end of period ................. $ 5,039 $ 17,725
============ ============
</TABLE>
Note to Condensed Combined Financial Information:
(1) The foregoing condensed combined financial information includes GHALP
Corporation, Waterfront Management Corporation, WHCMB, Inc., Wyndham
Management Corporation, Wyndham Hotels & Resorts (Aruba) N.V., WHC Vinings
Corporation, WH Interest, Inc., Wyndham IP Corporation, Rose Hall
Associates, L.P., XERXES Limited, WHC Caribbean, Ltd., WHC Development
Corporation, WHC Franchise Corporation, WHCMB Overland Park, Inc., WHCMB,
Toronto, Inc., WHC Columbus Corporation, Wyndham Hotels & Resorts
Management Ltd., WHC Salt Lake City Corporation, WHC Airport Corporation,
ClubHouse Hotels, Inc., CHMB, Inc., MBAH, Inc., PSMB, Inc., GHMB, Inc. and
a management subsidiary for a non-branded hotel. They all are wholly-owned
subsidiaries of the Company at September 30, 1997.
10. SUBSEQUENT EVENTS:
Subsequent to September 30, 1997, the Company borrowed an additional $20.5
million under the revolving credit facility. Of the amount borrowed, $6.5
million was used to fund the purchase of the remaining interest in a hotel
property managed by ClubHouse of which the Company owned a 5% interest at
September 30, 1997 through the ClubHouse merger. The remaining balance was
used to fund renovation costs, to make security deposits on hotel
properties to be acquired and leased and to make interest payment on the
Company's 10 1/2% Senior Subordinated Notes due 2006.
13
<PAGE> 14
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
OVERVIEW
The Company's revenues are derived from the following primary sources:
(1) The Company's hotel revenues are generated from the hotels owned or
leased by the Company during the periods presented and reflect revenues from
room rentals, food and beverage sales and other sources, including telephone,
guest services, meeting room rentals, gift shops and other amenities.
(2) The Company derives management fees from the hotels it manages. These
fees are comprised of base and incentive management fees, as well as trade name
fees. Base management fees are typically calculated based upon a specified
percentage of gross revenues from hotel operations, and incentive management
fees are usually calculated based upon a specified percentage of the hotel's
operating profit or the amount by which the hotel's operating profit exceeds
specified performance targets. Trade name fees are typically calculated based
upon a specified percentage of gross room revenues for hotels operated under the
Wyndham brand name.
(3) The Company generates service fee revenues from hotels that it manages
or franchises. Service fee revenues include fees derived from accounting,
design, construction and purchasing services, as well as technical assistance
provided to managed or franchised portfolio hotels. As a substantial portion of
the fees derived from the provision of design, construction and initial
purchasing services are generated in connection with hotel construction and
renovation activities, the amount of these fees varies depending upon the level
of the Company's external activities, including new hotel management contracts
and construction projects.
(4) The Company derives reimbursement revenues from hotels that it manages
or franchises. These revenues are intended primarily to match corresponding
expenses and serve to reimburse the Company for the expense associated with
providing advertising and promotion, sales and marketing, centralized
reservations and other services.
The following sets forth certain operating data with respect to certain
hotels owned or operated by the Company or its subsidiaries:
14
<PAGE> 15
<TABLE>
<CAPTION>
Quarter Ended September 30, Nine Months Ended September 30,
---------------------------------- ----------------------------------
1996 1997 %Change 1996 1997 %Change
-------- -------- ------- -------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
TOTAL PORTFOLIO (1):
Wyndham Hotels ........................... 20 20 20 21
Average Daily Rate ................... $ 95.21 $ 96.84 1.7% $ 100.07 $ 101.71 1.6%
Occupancy ............................ 70.9% 72.8% 2.7% 71.3% 72.7% 2.0%
Revenues Per Available Room
("RevPar").......................... $ 67.53 $ 70.50 4.4% $ 71.38 $ 73.93 3.6%
Wyndham Garden Hotels .................... 41 46 41 47
Average Daily Rate ................... $ 79.97 $ 82.80 3.5% $ 79.81 $ 83.07 4.1%
Occupancy ............................ 75.4% 75.8% .5% 71.7% 73.0% 1.8%
RevPar ............................... $ 60.33 $ 62.75 4.0% $ 57.27 $ 60.65 5.9%
Wyndham Resorts .......................... 4 6 5 6
Average Daily Rate ................... $ 102.69 $ 115.02 12.0% $ 110.85 129.84 17.1%
Occupancy ............................ 55.2% 59.1% 7.1% 59.1% 59.1% --
RevPar ............................... $ 56.64 $ 67.94 20.0% $ 65.46 $ 76.68 17.1%
Management Services ...................... 3 4 4 4
Average Daily Rate ................... $ 125.10 $ 163.41 30.6% $ 102.26 $ 157.96 54.5%
Occupancy ............................ 83.0% 86.1% 3.7% 76.8% 81.8% 6.5%
RevPar ............................... $ 103.77 $ 140.72 35.6% $ 78.55 $ 129.19 64.5%
Total .................................... 68 76 70 78
Average Daily Rate ................... $ 89.83 $ 96.00 6.9% $ 92.37 $ 99.81 8.1%
Occupancy ............................ 72.0% 73.3% 1.8% 70.6% 72.0% 2.0%
RevPar ............................... $ 64.64 $ 70.34 8.8% $ 65.20 $ 71.83 10.2%
COMPARABLE HOTEL GROUP (1) (2):
Wyndham Hotels ........................... 17 17 17 17
Average Daily Rate ................... $ 92.46 $ 98.62 6.7% $ 98.18 $ 104.22 6.2%
Occupancy ............................ 70.4% 72.6% 3.1% 71.3% 72.8% 2.1%
RevPar ............................... $ 65.12 $ 71.58 9.9% $ 69.97 $ 75.87 8.4%
Wyndham Garden Hotels .................... 38 38 38 38
Average Daily Rate ................... $ 81.31 $ 83.91 3.2% $ 80.64 $ 84.72 5.1%
Occupancy ............................ 75.8% 78.9% 4.1% 71.9% 76.8% 6.8%
RevPar ............................... $ 61.67 $ 66.20 7.3% $ 57.99 $ 65.07 12.2%
Wyndham Resorts .......................... 4 4 5 5
Average Daily Rate ................... $ 102.69 $ 106.67 3.9% $ 112.97 $ 119.05 5.4%
Occupancy ............................ 55.2% 66.8% 21.0% 59.8% 63.3% 5.9%
RevPar ............................... $ 56.64 $ 71.27 25.8% $ 67.53 $ 75.38 11.6%
Management Services ...................... 2 2 2 2
Average Daily Rate ................... $ 102.29 $ 114.88 12.3% $ 100.52 $ 110.15 9.6%
Occupancy ............................ 82.5% 83.0% .6% 77.8% 80.8% 3.9%
RevPar ............................... $ 84.37 $ 95.39 13.1% $ 78.22 $ 88.98 13.8%
Total .................................... 61 61 62 62
Average Daily Rate ................... $ 88.25 $ 92.86 5.2% $ 91.66 $ 96.73 5.5%
Occupancy ............................ 71.7% 75.1% 4.7% 70.6% 73.8% 4.5%
RevPar ............................... $ 63.32 $ 69.74 10.1% $ 64.73 $ 71.43 10.4%
</TABLE>
15
<PAGE> 16
<TABLE>
<CAPTION>
Quarter Ended September 30, Nine Months Ended September 30,
--------------------------------- ---------------------------------
1996 1997 %Change 1996 1997 %Change
---------- ---------- ------- ---------- ---------- -------
<S> <C> <C> <C> <C> <C> <C>
COMPARABLE HOTEL GROUP - DOMESTIC HOTELS
ONLY (1) (2):
Wyndham Hotels........................... 16 16 16 16
Occupancy............................ $ 92.00 $ 98.54 7.1% $ 98.03 $ 104.21 6.3%
RevPar............................... 70.7% 72.9% 3.1% 71.4% 73.2% 2.5%
RevPar............................... $ 65.04 $ 71.86 10.5% $ 70.03 $ 76.29 8.9%
Wyndham Garden Hotels.................... 38 38 38 38
Average Daily Rate................... $ 81.31 $ 83.91 3.2% $ 80.64 $ 84.72 5.1%
Occupancy............................ 75.8% 78.9% 4.1% 71.9% 76.8% 6.8%
RevPar............................... $ 61.67 $ 66.20 7.3% $ 57.99 $ 65.07 12.2%
Wyndham Resorts.......................... 1 1 1 1
Average Daily Rate................... $ 137.05 $ 149.07 8.8% $ 117.41 $ 128.72 9.6%
Occupancy............................ 79.6% 77.4% -2.8% 65.2% 61.5% -5.7%
RevPar............................... $ 109.05 $ 115.44 5.9% $ 76.55 $ 79.16 3.4%
Management Services...................... 2 2 2 2
Average Daily Rate................... $ 102.29 $ 114.88 12.3% $ 100.52 $ 110.15 9.6%
Occupancy............................ 82.5% 83.0% .6% 77.8% 80.8% 3.9%
RevPar............................... $ 84.37 $ 95.39 13.1% $ 78.22 $ 88.98 13.8%
Total.................................... 57 57 57 57
Average Daily Rate................... $ 87.65 $ 92.37 5.4% $ 89.93 $ 95.00 5.6%
Occupancy............................ 73.6% 76.1% 3.4% 71.7% 75.0% 4.6%
RevPar............................... $ 64.52 $ 70.32 9.0% $ 64.52 $ 71.23 10.4%
COMPARABLE HOTEL GROUP - DOMESTIC HOTELS
ONLY, EXCLUDING ATLANTA (1) (2) (3):
Wyndham Hotels........................... 16 16 16 16
Occupancy............................ $ 92.00 $ 98.54 7.1% $ 98.03 $ 104.21 6.3%
RevPar............................... 70.7% 72.9% 3.1% 71.4% 73.2% 2.5%
RevPar............................... $ 65.04 $ 71.86 10.5% $ 70.03 $ 76.29 8.9%
Wyndham Garden Hotels.................... 34 34 34 34
Average Daily Rate................... $ 77.05 $ 83.74 8.7% $ 77.99 $ 84.08 7.8%
Occupancy............................ 76.5% 80.3% 5.0% 71.8% 77.6% 8.1%
RevPar............................... $ 58.95 $ 67.23 14.0% $ 55.96 $ 65.26 16.6%
Wyndham Resorts.......................... 1 1 1 1
Average Daily Rate................... $ 137.05 $ 149.07 8.8% $ 117.41 $ 128.72 9.6%
Occupancy............................ 79.6% 77.4% -2.8% 65.2% 61.5% -5.7%
RevPar............................... $ 109.05 $ 115.44 5.9% $ 76.55 $ 79.16 3.4%
Management Services...................... 2 2 2 2
Average Daily Rate................... $ 102.29 $ 114.88 12.3% $ 100.52 $ 110.15 9.6%
Occupancy............................ 82.5% 83.0% .6% 77.8% 80.8% 3.9%
RevPar............................... $ 84.37 $ 95.39 13.1% $ 78.22 $ 88.98 13.8%
Total.................................... 53 53 53 53
Average Daily Rate................... $ 85.96 $ 92.67 7.8% $ 89.23 $ 95.21 6.7%
Occupancy............................ 73.8% 76.6% 3.8% 71.7% 75.3% 5.0%
RevPar............................... $ 63.43 $ 71.00 11.9% $ 63.95 $ 71.65 12.0%
</TABLE>
(1) All statistics exclude franchised hotels, Homegate hotels and ClubHouse
hotels.
(2) The Comparable Hotel Group includes hotels that were in the portfolio for
one full quarter in both periods. In instances where a hotel was not open
throughout both periods being compared, the data relating to that hotels is
only included for the full common fiscal quarter(s) that it was open in
both periods.
(3) Excluding four comparable Atlanta properties, which posted higher than
normal room rates in the third quarter of 1996 due to the Olympic games.
16
<PAGE> 17
RESULTS OF OPERATIONS
The following table sets forth certain financial data expressed as a
percentage of total revenues and certain other data for each of the periods
presented:
<TABLE>
<CAPTION>
QUARTER ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
---------------------- ----------------------
1996 1997 1996 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Revenues:
Hotel revenues .......................................... 73.4% 76.9% 70.0% 77.9%
Management fees ......................................... 14.4 13.2 16.2 12.4
Services fees ........................................... 2.9 2.5 2.9 2.3
Reimbursements .......................................... 9.4 7.2 10.6 6.9
Other ................................................... (.1) .2 .3 .5
-------- -------- -------- --------
Total revenues ................................... 100.0 100.0 100.0 100.0
-------- -------- -------- --------
Operating costs and expenses:
Hotel expenses .......................................... 57.8 57.9 51.2 58.3
Selling, general and administrative expenses ............ 10.5 9.7 12.6 9.9
Equity participation compensation ....................... -- -- 2.9 --
Reimbursable expenses ................................... 9.4 7.2 10.6 6.9
Depreciation and amortization ........................... 5.2 6.1 5.5 5.3
Merger expenses ......................................... -- 1.5 -- 2.2
-------- -------- -------- --------
Total operating costs and expenses ................ 82.9 82.4 82.8 82.6
-------- -------- -------- --------
Operating income ........................................... 17.1 17.6 17.2 17.4
Interest expense, net ...................................... (6.5) (6.8) (6.8) (5.9)
Equity in earnings of hotel partnerships ................... -- .2 .8 .1
Amortization of deferred gain .............................. .4 .3 .3 .3
-------- -------- -------- --------
Income before minority interests, income taxes and
extraordinary item ......................................... 11.0 11.3 11.5 11.9
Income attributable to minority interests .................. -- -- .5 --
-------- -------- -------- --------
Income before income taxes and
extraordinary item .............................. 11.0% 11.3% 11.0% 11.9%
======== ======== ======== ========
</TABLE>
1997 Third Quarter Compared to 1996 Third Quarter
Total revenues increased by 42.3%, or $17.5 million, to $58.9 million in
1997 from $41.4 million in 1996. Total operating costs and expenses increased by
41.4%, or $14.2 million, to $48.5 million in 1997 from $34.3 million in 1996.
The increase in total revenues and operating expenses was attributable to the
addition of four new hotels and the acquisition of ClubHouse. The addition of
four new hotels accounted for 36.5%, or $6.4 million of the increase in total
revenues and 41.7%, or $5.9 million, of the increase in total operating costs
and expenses. The ClubHouse merger accounted for 34.0%, or $6.0 million, and
27.4%, or $3.9 million, of the increase in total revenues and operating costs
and expenses, respectively. The increase in management fees as a result of new
management contracts accounted for 10.3%, or $1.8 million, of the increase in
total revenues. The increase in selling, general and administrative expenses
("SG&A") and depreciation and amortization as a result of the Company's general
growth and acquisition of new hotels accounted for 12.1%, or $1.7 million, of
the increase in operating costs and expenses. The Company incurred merger
expenses of $913,000 during the quarter in connection with the Patriot Merger
which accounted for 6.4% of the increase in total operating costs and expenses.
Hotel revenues increased by 49.1%, or $14.9 million, to $45.3 million in
1997 from $30.4 million in 1996. The ClubHouse merger accounted for 39.9%, or
$6.0 million, of the increase, and the acquisition of four new hotels accounted
for 42.8%, or $6.4 million, of the increase. The increase in hotel revenues from
existing hotels accounted for the remaining 17.3% increase in hotel revenues. As
a percentage of total revenues, hotel revenues increased to 76.9% in 1997
compared to 73.4% in 1996.
17
<PAGE> 18
Revenues from management fees increased by 30.2%, or $1.8 million, to $7.8
million in 1997 from $6.0 million in 1996. Approximately $742,000 of the
increase resulted from the addition of 18 newly managed hotels between October
1, 1996 and September 30, 1997 and $1.3 million resulted from improved operating
results of the hotels the Company managed for both reporting periods. These
increases were offset by approximately $213,000 from the loss of certain
management contracts.
Revenues from service fees increased by 25.5%, or approximately $303,000,
to $1.5 million in 1997 from $1.2 million in 1996. The increase was due to
increased fees derived from central accounting, technical and purchasing
services as a result of additions of new hotels and hotels under renovation.
Hotel expenses increased by 42.5%, or $10.2 million, to $34.1 million in
1997 from $23.9 million in 1996. Approximately 30.3% of the increase, or $3.1
million, was due to the acquisition of ClubHouse. Approximately 55.9% of the
increase, or $5.7 million, was the result of the addition of four new hotels.
Hotel expenses decreased as a percentage of hotel revenues to 75.2% in 1997 from
78.7% in 1996.
SG&A expenses increased by 31.0%, or approximately $1.4 million, to $5.7
million in 1997 from $4.4 million in 1996. Of the increase, 78.0%, or
approximately $1.1 million, was attributable to the additional costs of
corporate management and staff personnel and costs related to the general growth
of the Company including legal, accounting, information systems and certain
other costs not reimbursed by Company-managed hotels. The balance of the
increase, or approximately $298,000, was due to the increase in the provision
for bad debt related to certain receivables. As a percentage of total revenues,
SG&A expenses decreased to 9.7% in 1997 from 10.6% in 1996.
Depreciation and amortization expense increased by 66.5%, or $1.4 million,
to $3.6 million in 1997 from $2.2 million in 1996. The increase was primarily
due to the acquisition of property and equipment and the amortization of the
acquisition costs of management contracts. The 1997 expense also reflected
approximately $121,000 in the amortization of a noncompetition agreement and
goodwill acquired in connection with the ClubHouse merger.
Merger expenses of approximately $913,000 for 1997 represent legal
expenses, investment banker fees and other professional fees incurred in
connection with the proposed Patriot Merger. See Note 2 to the consolidated
financial statements.
Interest expense increased by 36.9%, or $1.3 million, to $4.7 million in
1997 from $3.4 million in 1996. The increase reflected the interest incurred on
the borrowings under the revolving credit facility and the interest incurred on
the debt assumed in the ClubHouse acquisition (see Note 5).
Equity in earnings of hotel partnerships for the quarter ended September
30, 1997 represents the Company's 30% ownership interest in a hotel partnership
acquired in November 1996 and partial equity interests in three hotel
partnerships acquired in connection with the ClubHouse merger.
On September 26, 1997, the Company elected to fund a cash shortfall related
to renovation costs and assumed a 67.5% interest in a hotel partnership as the
owner of the hotel partnership failed to fund the shortfall. The Company
contributed and converted its outstanding note receivable and accrued interest
thereon totaling $5.9 million to equity.
As a result of changes noted above, income before income taxes and
extraordinary item increased by 46.1%, or $2.1 million, to $6.7 million in 1997
from $4.6 million in 1996.
The Company repaid certain existing ClubHouse debt upon the merger with
ClubHouse. The related unamortized debt costs were written off and reported net
of applicable taxes as an extraordinary item.
Nine Months Ended September 30, 1997 Compared to Nine Months Ended September 30,
1996
Total revenues increased by 62.1%, or $63.3 million, to $165.2 million in
1997 from $101.9 million in 1996. Total operating costs and expenses increased
by 61.6%, or $52.0 million, to $136.5 million in 1997 from $84.4
18
<PAGE> 19
million in 1996. The increase in total revenues and operating expenses was
attributable to the addition of five new hotels, the consolidation of the
operating results of 11 leased hotels (the "GHALP Leases") and the acquisition
of ClubHouse. The addition of five new hotels accounted for 37.0%, or $23.4
million, of the increase in total revenues and 41.9%, or $21.8 million, of the
increase in total operating expenses. Prior to May 2, 1996, GHALP Leases were
30% owned by the Company and were accounted for using the equity method. The
GHALP Leases accounted for 39.6%, or $25.1 million, of the increase in total
revenues and 35.8%, or $18.6 million, of the increase in total operating
expenses. The acquisition of ClubHouse accounted for 9.4%, or $6.0 million, of
the increase in total revenues and 7.5%, or $3.9 million, of the increase in
total operating costs and expenses. The increase in SG&A as a result of the
Company's general growth and acquisition of new hotels accounted for 6.6%, or
$3.5 million of the increase in operating costs and expenses. The Company
incurred merger expenses of $3.6 million during the nine months ended September
30, 1997 in connection with the Patriot Merger, which accounted for 7.0% of the
increase in total operating costs and expenses.
Hotel revenues increased by 80.5%, or $57.4 million, to $128.7 million in
1997 from $71.3 million in 1996. Approximately 10.4% of the increase, or $6.0
million, was due to the acquisition of ClubHouse. The GHALP Leases accounted
for 43.8%, or $25.1 million, of the increase. The acquisition of five new hotels
contributed 40.8%, or $23.4 million, of the increase. The increase in hotel
revenues was also the result of increased revenues of hotels the Company owned
for both reporting periods due to an increase in revenue per available room. As
a percentage of total revenues, hotel revenues increased to 77.9% in 1997
compared to 69.9% in 1996.
Revenues from management fees increased by 24.3%, or $4.0 million, to $20.6
million in 1997 from $16.5 million in 1996. Approximately $1.9 million of the
increase resulted from the addition of 18 newly managed hotels between October
1, 1996 and September 30, 1997, and $4.3 million resulted from improved
operating results of the hotels the Company managed for both reporting periods.
These increases were offset by approximately $767,000 from the loss of certain
management contracts and approximately $1.3 million from the elimination of
revenues from GHALP Leases as a result of consolidating its operating results
into the Company.
Revenues from service fees increased by 28%, or approximately $829,000, to
$3.8 million in 1997 from $3.0 million in 1996. The increase was due to
increased fees derived from central accounting, technical and purchasing
services as a result of additions of new hotels and hotels under renovation. The
increase was partially offset by the elimination of approximately $275,000 in
fees earned from GHALP Leases as a result of consolidating its operating results
into the Company.
Other revenues increased by 150%, or approximately $480,000, to
approximately $800,000 in 1997 from $320,000 in 1996. Included in the nine
months ended September 30, 1997 and 1996 were fees of $712,000 and $250,000,
respectively, recognized from the termination of management contracts.
Hotel expenses increased by 84.3%, or $44.0 million, to $96.3 million in
1997 from $52.2 million in 1996. Approximately 41.4% of the increase, or $18.2
million, was due to consolidating the GHALP Leases operating results into the
Company, 7.0% of the increase, or $3.1 million, was attributable to the
acquisition of ClubHouse, and 47.2% of the increase, or $20.8 million, was the
result of the addition of five new hotels. Hotel expenses during the nine months
of 1996 included a reduction of approximately $544,000 resulting from the
write-off of a reserve for contingent liabilities as a result of the final
settlement of a contract assignment on one of the Company's hotel properties.
Hotel expenses increased as a percentage of hotel revenues to 74.8% in 1997 from
73.2% in 1996, primarily attributable to an increase of $7.8 million in lease
payments associated with the GHALP Leases and a new lease the Company entered
into in January 1997. Excluding the rent payments on the hotels under operating
leases and the reversal of contingent liabilities, the percentage of hotel
expenses to hotel revenues would have been 64.4% and 66.1% for the nine months
ended September 30, 1997 and 1996, respectively.
SG&A expenses increased by 26.9%, or $3.4 million, to $16.3 million in 1997
from $12.9 million in 1996. Of the increase, 85.0%, or $2.9 million, was
attributable to the additional costs of corporate management and staff
personnel and costs related to the general growth of the Company including
legal, accounting, information systems and certain other costs not reimbursed
by Company-managed hotels. The balance of the increase, or
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<PAGE> 20
approximately $517,000, was due to the increase in the provision for bad debt
related to certain receivables. As a percentage of total revenues, SG&A expenses
decreased to 9.9% in 1997 from 12.6% in 1996.
The 1996 non-recurring equity participation expense was fixed at the
Company's initial public offering, and the related partnership that held the
assets of the equity participation plan was dissolved and terminated in February
1997.
Depreciation and amortization expense increased by 56.7%, or $3.2 million,
to $8.8 million in 1997 from $5.6 million in 1996. The increase was primarily
due to the acquisition of property and equipment and the amortization of the
acquisition costs of management contracts. The 1997 expense also reflected
increases of approximately $576,000 in the amortization of deferred debt
issuance costs on the senior subordinated notes and the revolving credit
facility and approximately $121,000 in the amortization of a noncompetition
agreement and goodwill acquired in connection with the ClubHouse merger.
Merger expenses of $3.6 million for 1997 represent legal expenses,
investment banker fees and other professional fees incurred in connection with
the proposed Patriot Merger. See Note 2 to the consolidated financial
statements.
Interest expense increased by 39.3%, or $3.3 million, to $11.8 million in
1997 from $8.5 million in 1996. The increase reflected the additional interest
incurred on the senior subordinated notes which were not outstanding during the
entire nine months of 1996, net of the effect of elimination of interest expense
from the retirement of debt and affiliated borrowings. The increase also
included $1.6 million incurred on the borrowings under the revolving credit
facility and approximately $336,000 of interest on debt assumed in the ClubHouse
merger. The total outstanding balance under the revolver was $72 million at
September 30, 1997 (see Note 5). Interest income increased by 35.6%, or
approximately $541,000, from approximately $1.5 million in 1996 to $2.0 million
in 1997. The increase was primarily due to income of approximately $461,000
earned on a note receivable from a managed hotel and approximately $432,000 of
interest earned on a security deposit related to a leased hotel. The increase
was offset by the interest income on cash and cash equivalents which decreased
by approximately $498,000 in 1997 as the cash received from the Company's
initial public offering was invested in hotel properties.
Equity in earnings of hotel partnerships decreased from approximately
$870,000 in 1996 to $120,000 in 1997. Earnings from the Company's equity
investment in the GHALP Leases ceased following the Company's acquisition of the
remaining 70% of the partnership interest in the GHALP Leases on May 2, 1996.
Since the acquisition, the operating results of the GHALP Leases have been
consolidated into the Company. Equity in earnings of hotel partnerships in 1997
reflected the Company's 30% ownership interest in a hotel partnership which the
Company acquired in November 1996 and partial equity interests in three hotel
partnerships acquired in connection with the ClubHouse merger.
Income attributable to minority interest was eliminated as a result of the
Company's acquisition of the minority interest in connection with its initial
public offering in May 1996. On September 26, 1997, the Company elected to fund
a cash shortfall related to renovation costs and assumed a 67.5% interest in a
hotel partnership, as the owner of the hotel partnership failed to fund the
shortfall. The Company contributed and converted its outstanding note receivable
and accrued interest thereon totaling $5.9 million to equity.
As a result of changes noted above, income before income taxes and
extraordinary item increased by 76.7%, or $8.5 million, to $19.7 million in 1997
from $11.2 million in 1996.
Since the Company's incorporation, income taxes have been provided in
accordance with Statement of Financial Accounting Standard No. 109. Income tax
benefits for the nine months ended September 30, 1996 included the effect of
recording deferred income taxes arising as a result of incorporation in the
amount of $13.0 million.
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<PAGE> 21
The extraordinary item of approximately $298,000 for 1997 and $1.1 million
for 1996 were write-offs of the unamortized debt costs on the debt repaid in the
ClubHouse merger and at the Company's initial public offerings, net of
applicable taxes in 1997 and 1996, respectively.
LIQUIDITY AND CAPITAL RESOURCES
The Company's principal capital and liquidity needs include cash to finance
operations, capital requirements relating to ongoing maintenance and
improvements at the Company's owned and leased hotels, capital requirements
associated with the Company's entry into new management contracts and
improvements to the related hotel properties, hotel acquisition financing and
the repayment of indebtedness.
Since the Company's initial public offerings in May 1996, the Company has
met its capital and liquidity needs with cash generated from operations, net
proceeds from initial public offerings and amounts available under the revolving
credit facility. In July 1997, in connection with the ClubHouse acquisition, the
revolving credit facility was increased to $150 million. Approximately $55.6
million in cash was borrowed to fund the cash portion of the ClubHouse
acquisition. At September 30, 1997, the outstanding balance under the revolving
credit facility totaled $72 million plus a letter of credit of $9.8 million. The
aggregate principal amount available for borrowings under the revolving credit
facility at September 30, 1997 was $64.0 million. Subsequent to September 30,
1997, an additional $20.5 million was borrowed for the payment of the purchase
price of a hotel property, security deposits on other acquisitions, certain
hotel renovation costs and the interest on the Company's 10 1/2% Senior
Subordinated Notes due 2006. (see Note 10).
During the nine months ended September 30, 1997, the Company generated cash
from operating activities of $8.3 million as compared to $2.5 million in the
1996 period. During the nine months ended September 30, 1997 and 1996, the
Company made security deposits on leased hotels of $7.8 million and $13.6
million, respectively. During the nine months ended September 30, 1997, the
Company incurred merger expenses totaling $3.6 million in connection with the
Patriot Merger. Without the payments of security deposits and merger expenses,
cash generated from operating activities would have been $19.8 million for the
nine months ended September 30, 1997. In October 1997, the management agreement
with Homegate was terminated and the Company will receive $12.0 million in
exchange for such termination (see Note 7).
The Company has the following anticipated capital commitments. Pursuant to
the terms of a management agreement in which the Company has a 30% ownership
interest, the Company has committed to fund up to $2.5 million for the
renovation of the hotel property. As of September 30, 1997, the Company has made
advances of approximately $619,000. In addition, the Company is obligated,
pursuant to the terms of a hotel management agreement, to fund a loan for hotel
renovations and improvements in the aggregate amount of $6.0 million, of which
$4.8 million had been funded as of September 30, 1997. Pursuant to capital lease
agreements, the Company is obligated to make lease payments of $2.6 million in
1997.
In February 1997, the Company, through a financial institution and county
authority, issued revenue bonds totaling $9.7 million. The bonds were issued to
refinance the existing bonds that the Company assumed in the acquisition of a
Wyndham Garden Hotel. The bonds initially bear interest at a weekly rate (the
"Weekly Rate Period") determined in accordance with the indenture of the bonds
based on prevailing financial market conditions for revenue bonds (at September
30, 1997, such rate was 4.15%) plus a 2% credit enhancement fee, as defined in
the indenture. The weekly rate may be converted to another interest rate
determination method on the first business day of any calendar month at the
Company's option, subject to the terms and conditions set forth in the
indenture. Interest payments on the bonds are due on a periodic basis. The bonds
mature in February 2023 and are subject to redemption by the Company in whole or
in part during any Weekly Rate Period.
The Company intends to retain any future earnings for use in its business
and does not intend to declare any cash dividends in the foreseeable future. The
Company believes that cash generated by operations will be sufficient to fund
the Company's operating strategy for the foreseeable future and that any
remaining cash generated by operations, together with capital available under
the revolving credit facility will be adequate to fund the Company's growth
strategy in the near term. The Company may seek further increases in the capital
available to it under the revolving credit facility or otherwise obtain
additional debt or equity financing, depending upon the
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<PAGE> 22
amount of capital required to pursue future growth opportunities or address
other needs. No assurance can be given that the amount available under the
revolving credit facility will be further increased, or such additional
financing will be available, on acceptable terms, if at all.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
On April 14, 1997, an action styled Kwalbrun v. James D. Carreker, et. al.,
was filed in the Delaware Court of Chancery in and for New Castle County,
purportedly as a class action on behalf of the Company's stockholders, against
the Company and the members of the Board of Directors of the Company. The
complaint also purported to name Patriot as a defendant, but Patriot has not
been served with the complaint. The complaint alleges that the Company's Board
of Directors breached its fiduciary duties owed to the Company's public
stockholders in connection with the Board of Director's approval of the Patriot
Merger. In particular, the complaint alleges that the Patriot Merger was
negotiated at the expense of the Company's public stockholders, and that the
Company's Board of Directors permitted Patriot to negotiate on more favorable
terms the Crow Acquisition with members of the Trammell Crow family. The
complaint seeks to enjoin, preliminarily and permanently, consummation of the
Patriot Merger under the terms presently proposed and also seeks unspecified
damages. The defendants deny the allegations in the complaint and expect to
defend the action vigorously.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits:
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
2.1 -- Agreement and Plan of Merger, dated as of April 14, 1997,
by and between Patriot American Hospitality, Inc. and the
Company (incorporated by reference to Exhibit Number 2.2 to
Schedule 13D filed with the Securities and Exchange Commission
on April 24, 1997 on behalf of CF Securities, L.P.) The
"Disclosure Letters" referred to in the Agreement and Plan of
Merger are omitted, as they constitute "schedules" within the
meaning of Item 601 of Regulation S-K. The Company undertakes
to furnish supplementally such Disclosure Letters to the
Commission upon request.
3.1 -- Amended and Restated Certificate of Incorporation of the
Company (Incorporated by reference to Exhibit Number 3.1 in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 1, 1996).
3.2 -- Amended and Restated Bylaws of the Company (Incorporated by
reference to Exhibit Number 3.2 in Amendment No. 1 to the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
May 1, 1996).
4.1 -- Form of specimen certificate for the Common Stock
(Incorporated by reference to Exhibit Number 4.1 in Amendment
No. 2 to the Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities and Exchange
Commission on May 14, 1996).
4.2 -- Relevant portions of Amended and Restated Certificate of
Incorporation (Reference is hereby made to Exhibit Number
3.1).
10.1(a) -- Management Agreement dated as of May 10, 1995 by and between
Anatole
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<PAGE> 23
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
Hotel Investors, L.P. and Wyndham Hotel Company Ltd.
(Incorporated by reference to Exhibit Number 10.1(a) in the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
March 11, 1996).
10.1(b) -- Form of Management Agreement dated as of September 27, 1994
by and between Bedrock Annapolis Investment Partners Level I,
L.P. and Wyndham Hotel Company Ltd. (together with attachment)
(Incorporated by reference to Exhibit Number 10.1(b) in the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
March 11, 1996).
10.1(c) -- Management Agreement dated as of March 10, 1988 by and
between Franklin Plaza Associates and Wyndham Hotel Company,
as amended by First Amendment dated November 17, 1993
(Incorporated by reference to Exhibit Number 10.1(c) in the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
March 11, 1996).
10.1(d) -- Service Agreement dated as of November 17, 1993 by and
between Franklin Plaza Realty Limited Partnership and Wyndham
Hotel Company Ltd. (Incorporated by reference to Exhibit
Number 10.1(d) in the Company's Registration Statement on Form
S-1 (Reg. No. 333-2214) filed with the Securities and Exchange
Commission on March 11, 1996).
10.1(e) -- Management Agreement dated as of December 1, 1984 by and
between Houston Greenspoint Hotel Associates and Wyndham Hotel
Company (Incorporated by reference to Exhibit Number 10.1(e)
in the Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
March 11, 1996).
10.1(f) -- Management Agreement dated as of December 4, 1991 by and
between Itasca Hotel Company and Wyndham Hotel Company Ltd.,
as amended by Amendment dated March 19, 1996 (Incorporated by
reference to exhibit number 10.1(f) in the Company's
Registration Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on March 11,
1996).
10.1(g) -- Management Agreement dated as of June 30, 1994 by and
between Waterfront Hotel Associates, S.E. and Old San Juan
Management, Ltd. S.E. (Incorporated by reference to Exhibit
Number 10.1(g) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on May 1, 1996).
10.1(h) -- Management Agreement dated as of May 26, 1995 by and
between Convention Center Boulevard Hotel, Limited and Wyndham
Hotel Company Ltd. (Incorporated by reference to Exhibit
Number 10.1(h) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on May 1, 1996).
10.1(i) -- Management Agreement dated as of August 25, 1993 by and
between Playhouse Square Hotel Limited Partnership and Wyndham
Hotel Company
23
<PAGE> 24
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
Ltd. (Incorporated by reference to Exhibit Number 10.1(i) in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 1, 1996).
10.1(j) -- Management Agreement dated as of March 1, 1986 by and
between CLC Partnership and Wyndham Hotel Company, as amended
by First Amendment dated June 30, 1988 (Incorporated by
reference to Exhibit Number 10.1(j) in Amendment No. 1 to the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
May 1, 1996).
10.1(k) -- Management Agreement dated as of December 22, 1987 by and
among Badger XVI Limited Partnership, Crow Division Partners
and Wyndham Hotel Company, as amended by First Amendment dated
February 26, 1988 (Incorporated by reference to Exhibit Number
10.1(k) in Amendment No. 1 to the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on May 1, 1996).
10.1(l) -- Management Agreement dated as of November 20, 1987 by and
between Hotel and Convention Center Partners I, Ltd. And
Wyndham Hotel Corporation II, Inc., as amended by Amendment
dated November 1, 1993 (Incorporated by reference to Exhibit
Number 10.1(l) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on May 1, 1996).
10.2 -- Investment Agreement dated as of May 2, 1994 among The
Hampstead Group, Inc., Wyndham Hotel Company Ltd., The
Partners in Wyndham Hotel Company Ltd., and Crow Family
Partnership, L.P., as amended (Incorporated by reference to
Exhibit Number 10.2 in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on May 1, 1996).
10.3(a) -- Lease dated as of April 1, 1996 by and between Hospitality
Properties Trust and Garden Hotel Associates II Limited
Partnership (Incorporated by reference to Exhibit Number
10.3(a) in the Company's Registration Statement on Form S-1
(Reg. No. 333-18507) filed with the Securities and Exchange
Commission on January 27, 1997).
10.3(b) -- Lease Agreement dated as of March 1, 1988 by and between
Lincoln Island Associates No. 1, Limited and WHI Limited
Partnership (Incorporated by reference to Exhibit Number
10.3(b) in the Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities and Exchange
Commission on March 11, 1996).
10.3(c) -- Lease Agreement dated December 19, 1989 by and between Rose
Hall Hotel Limited and Rose Hall Associates Limited
Partnership (Incorporated by reference to Exhibit Number
10.3(c) in the Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities and Exchange
Commission on March 11, 1996).
10.3(d) -- Sublease Agreement dated as of November 17, 1989 by and
between Copley-Commerce-Telegraph #1 Associates, as assignee
of Crow-Staley-
24
<PAGE> 25
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
Commerce #1 Limited Partnership and Commerce Hotel Partners
Ltd. (Incorporated by reference to Exhibit Number 10.3(d) in
the Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
March 11, 1996).
10.3(e) -- Ground Lease dated as of March 26, 1987 by and between Fred
C. Boysen, Dorothy Boysen, Ted Boysen and Rose Boysen and
Garden Hotel Associates Limited Partnership, as assignee of
Ramada Hotel Operating Company as amended by First Amendment
dated as of May 7, 1990 (Incorporated by reference to Exhibit
Number 10.3(e) in the Company's Registration Statement on Form
S-1 (Reg. No. 333-2214) filed with the Securities and Exchange
Commission on March 11, 1996).
10.3(f) -- Lease Agreement dated as of November 26, 1990 by and
between Tower 2001 Limited Partnership and Wyndham Hotel
Company Ltd., as amended by Letter Agreement dated March 9,
1994 and Letter Agreement dated March 22, 1995, and as amended
by Amendment No. 1 dated as of November 30, 1995 (Incorporated
by reference to Exhibit Number 10.3(f) in the Company's
Registration Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on March 11,
1996).
10.3(g) -- Lease Agreement dated as of January 1992 by and between 475
Park Avenue South Co. and Wyndham Hotel Company Ltd., as
amended by Amendment of Lease dated January 30, 1995
(Incorporated by reference to Exhibit Number 10.3(g) in the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
March 11, 1996).
10.3(h) -- Sublease dated as of May 31, 1995 between Banc One Mortgage
Corporation and Wyndham Hotels & Resorts (Incorporated by
reference to Exhibit Number 10.3(h) in the Company's
Registration Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on March 11,
1996).
10.3(i) -- Lease Agreement dated as of May 16, 1994 by and between
Wirtz Realty Corporation, as agent for 333 Building
Corporation and Wyndham Hotel Company Ltd. (Incorporated by
reference to Exhibit Number 10.3(i) in Amendment No. 1 to the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
May 1, 1996).
10.3(j) -- Lease Agreement dated as of May 18, 1994 by and between
Columbia Executive Offices, Inc. and The Inn at Semiahmoo a
Wyndham Resort (Incorporated by reference to Exhibit Number
10.3(j) in Amendment No. 1 to the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on May 1, 1996).
10.3(k) -- Lease Agreement dated as of January 8, 1997 by and between
HPTSLC Corporation and WHC Salt Lake City Corporation
(Incorporated by reference to Exhibit Number 10.3(k) in the
Company's Registration Statement on Form S-1 (Reg. No.
333-18507) filed with the Securities and Exchange Commission
on January 27, 1997).
25
<PAGE> 26
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.4 -- Master Alliance Agreement dated as of January 9, 1997 by
and among American General Hospitality Corporation, American
General Hospitality Operating Partnership, L.P., WHC Franchise
Corporation and WHC Development Corporation (Incorporated by
reference to Exhibit Number 10.4 in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997.).
10.5 -- Limited Guaranty Agreement dated as of January 8, 1997 made
by the Company for the benefit of HPTSLC Corporation
(Incorporated by reference to Exhibit Number 10.5 in the
Company's Registration Statement on Form S-1 (Reg. No.
333-18507) filed with the Securities and Exchange Commission
on January 27, 1997).
10.5(a) -- Form of Asset Management Agreement to be entered into
between the Company and various Crow Family Real Estate
Entities (Incorporated by reference to Exhibit Number 10.5(a)
in Amendment No. 2 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 14, 1996).
10.6(a) -- Service Agreement, dated as of May 21, 1996, by and between
the Company and ISIS 2000 LP (Incorporated by reference to
Exhibit Number 10.6(a) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the Securities and
Exchange Commission on January 27, 1997).
10.6(b) -- Service Agreement, dated as of May 21, 1996, by and between
the Company and Wynright Insurance (Incorporated by reference
to Exhibit Number 10.6(b) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.6(c) -- Service Agreement, dated as of May 21, 1996, by and between
the Company and CW Synergistech, LP (Incorporated by reference
to Exhibit Number 10.6(c) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.7 -- Indenture relating to the 10 1/2% Senior Subordinated Notes
due 2006 (Incorporated by reference to Exhibit Number 10.10 in
the Company's Registration Statement on Form S-1 (Reg. No.
333-18507) filed with the Securities and Exchange Commission
on January 27, 1997).
10.8 -- Stockholders' Agreement ("Stockholders' Agreement") among
Wyndham Hotel Corporation and the Stockholders listed on the
signature pages thereof (Incorporated by reference to Exhibit
Number 10.13 in the Company's Registration Statement on Form
S-1 (Reg. No. 333-18507) filed with the Securities and
Exchange Commission on January 27, 1997).
10.9 -- Registration Rights Agreement among Wyndham Hotel
Corporation and the parties identified on the signature pages
thereof (Incorporated by reference to Exhibit Number 10.14 in
the Company's Registration Statement on Form S-1 (Reg. No.
333-18507) filed with the Securities and Exchange Commission
on January 27, 1997).
26
<PAGE> 27
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.10(a) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and James D. Carreker (Incorporated by reference
to Exhibit Number 10.15(a) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.10(b) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and Anne L. Raymond (Incorporated by reference to
Exhibit Number 10.15(b) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.10(c) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and Harlan R. Crow (Incorporated by reference to
Exhibit Number 10.15(c) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.10(d) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and Daniel A. Decker (Incorporated by reference to
Exhibit Number 10.15(d) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.10(e) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and Susan T. Groenteman (Incorporated by reference
to Exhibit Number 10.15(e) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.10(f) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and Stanley M. Koonce, Jr. (Incorporated by
reference to Exhibit Number 10.15(f) in the Company's
Registration Statement on Form S-1 (Reg. No. 333-18507) filed
with the Securities and Exchange Commission on January 27,
1997).
10.10(g) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and Leslie V. Bentley (Incorporated by reference
to Exhibit Number 10.15(g) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.10(h) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and Robert A. Whitman (Incorporated by reference
to Exhibit Number 10.15(h) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.11(a) -- 6% Promissory Note made by James D. Carreker (Incorporated
by reference to Exhibit Number 10.16(a) in Amendment No. 1 to
the Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
May 1, 1996).
10.11(b) -- 6% Promissory Note made by Leslie V. Bentley (Incorporated
by reference to exhibit number 10.16(b) in Amendment No. 1 to
the Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
May 1, 1996).
10.11(c) -- 6% Promissory Note made by Eric A. Danziger (Incorporated
by reference to Exhibit Number 10.16(c) in Amendment No. 1 to
the Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and
27
<PAGE> 28
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
Exchange Commission on May 1, 1996).
10.11(d) -- 6% Promissory Note made by Anne L. Raymond (Incorporated by
reference to Exhibit Number 10.16(d) in Amendment No. 1 to the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
May 1, 1996).
10.11(e) -- 6% Promissory Note made by Stanley M. Koonce, Jr.
(Incorporated by reference to Exhibit Number 10.16(e) in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 1, 1996).
10.11(f) -- 6% Promissory Note made by Wyndham Employees Ltd.
(Incorporated by reference to Exhibit Number 10.16(f) in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 1, 1996).
10.12 -- Stockholders' Agreement Consent dated September 30, 1996
(Incorporated by reference to Exhibit 10.12 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1997).
10.13(a) -- Wyndham Employees Savings & Retirement Plan (Incorporated
by reference to Exhibit Number 10.19(a) in Amendment No. 2 to
the Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
May 14, 1996).
10.13(b) -- Wyndham Hotel Corporation 1996 Long Term Incentive Plan, as
revised (Incorporated by reference to Exhibit Number 10.19(b)
in Amendment No. 3 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 20, 1996).
10.13(c) -- Non-Employee Directors' Retainer Stock Plan, as revised
(Incorporated by reference to Exhibit Number 10.19(c) in
Amendment No. 3 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 20, 1996).
10.14 -- Operating Deficit Guaranty and Reserves Agreement dated as
of August 25, 1993 by and among Playhouse Square Hotel Limited
Partnership, Society National Bank and the Lenders
(Incorporated by reference to Exhibit Number 10.22 in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 1, 1996).
10.15 -- Registration Rights Agreement dated as of September 30,
1996 between the Company and Smith Barney, Inc. (Incorporated
by reference to Exhibit Number 10.15 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1996, is
filed with the Securities and Exchange Commission on March 27,
1997).
10.16 -- Registration Rights Agreement dated as of April 29, 1996
between the Company and General Electric Investment
Corporation (Incorporated by reference to Exhibit Number 10.16
to the Company's Annual Report on form 10-K for the year ended
December 31, 1996, is filed with the Securities and Exchange
Commission on March 27, 1997).
28
<PAGE> 29
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.17 -- Promissory Note dated April 15, 1995 between the Company
and WFLP (Incorporated by reference to Exhibit Number 10.17 to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1996, is filed with the Securities and Exchange
Commission on March 27, 1997).
10.18 -- Computerized Reservation Service Agreement between ISIS
2000 and the Company (Incorporated by reference to Exhibit
Number 10.28 in the Company's Registration Statement on Form
S-1 (Reg. No. 333-18507) filed with the Securities and
Exchange Commission on January 27, 1997).
10.19 -- Indemnification Agreements by and between Elise Turner as
an Officer of GHMB, Inc.; MBAH, Inc.; CHMB, Inc.; Waterfront
Management Corporation; PSMB, Inc.; MTMB, Inc.; MDMB, Inc.;
AMMB, Inc.; OHMB, Inc.; WNMB, Inc.; MBWD, Inc.; MBWH, Inc.;
and BHMB, Inc., which Corporations are the Holders of Liquor
Licenses, and Wyndham Management Corporation (Incorporated by
reference to Exhibit Number 10.29 in the Company's
Registration Statement on Form S-1 (Reg. No. 333-18507) filed
with the Securities and Exchange Commission on January 27,
1997).
10.20 -- Senior Secured Revolving Credit Agreement (the "Credit
Agreement") among Wyndham Hotel Corporation, The Lenders Party
Thereto and Bankers Trust Company (incorporated by reference
to the Company's Quarterly Report on Form 10-Q for the Quarter
Ended June 30, 1996).
10.21 -- Management Contract between Homegate Hospitality, Inc. and
the Company, dated August 26, 1996 (incorporated by reference
to Exhibit Number 10.1 of the Company's Quarterly Report on
Form 10-Q for the Quarter ended September 30, 1996).
10.22 -- Proxy Agreement, dated as of April 14, 1997, by and between
Patriot American Hospitality, Inc. and CF Securities, L.P.,
James D. Carreker, Leslie V. Bentley, Anne L. Raymond, Stanley
M. Koonce, Jr. And the Company (incorporated by reference to
Exhibit Number 10.1 to Schedule 13D filed with the Securities
and Exchange Commission on April 24, 1997 on behalf of CF
Securities, L.P.).
10.23 -- Asset Management Agreements between Wyndham Hotel
Corporation and Playhouse Square Hotel L.P. and the other
Parties Listed on Schedule A attached thereto (incorporated by
reference to Exhibit Number 10.23 in the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1997).
10.24 -- Indemnification Agreements between the Company and Susan R.
Bolger and the other Parties Listed on Schedule A attached
thereto (incorporated by reference to Exhibit Number 10.24 in
the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997).
10.25 -- Capital Contribution Note dated as of December 22, 1995 by
and between Pleasanton Hotel Partners, L.P. and the Company
(Incorporated by reference to Exhibit Number 10.18(a) in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
29
<PAGE> 30
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
Exchange Commission on May 1, 1996).
10.26 -- Capital Contribution Note dated as of October 2, 1995 by
and between WHC-LG Hotel Partners and the Company
(Incorporated by reference to Exhibit Number 10.18(b) in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 1, 1996)
10.27 -- Capital Contribution Note dated as of May 26, 1995 by and
between New Orleans Hotel I, L.P. and the Company
(Incorporated by reference to Exhibit Number 10.18(c) in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 1, 1996).
10.28 -- FF&E Contract, dated June 30, 1994, by and between Wyndham
Hotel Company Ltd. and Waterfront Hotel Associates, S.E., as
amended (incorporated by reference to Exhibit Number 10.28 in
the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997).
10.29 -- FF&E and Technical Services Contract, dated May 26, 1995,
by and between Wyndham Hotel Company Ltd. And Convention
Center Boulevard Hotel, Limited (incorporated by reference to
Exhibit Number 10.29 in the Company's Quarterly Report on Form
10-Q for the quarter ended March 31, 1997).
10.30 -- Corporate Guaranty Agreements by Wyndham Hotel Corporation
on behalf of ISIS 2000 Limited Partnership for the benefit of
Banc One Leasing Corporation, including Master Agreement and
Schedule of Additional Guaranty Agreements (incorporated by
reference to Exhibit Number 10.30 in the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1997).
10.31 -- Guarantor Agreement, dated May 26, 1995 by and among
Convention Center Boulevard Hotel, Ltd., the Company, Darryl
D. Berger and Roger H. Ogden (incorporated by reference to
Exhibit Number 10.31 in the Company's Quarterly Report on Form
10-Q filed for the quarter ended March 31, 1997).
10.32 -- Corporate Guaranty Agreement, dated May 15, 1996, by
Wyndham Hotel Corporation on behalf of ISIS 2000 Limited
Partnership for the benefit of IBM Credit Corporation
(incorporated by reference to Exhibit Number 10.32 in the
Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997).
10.33 -- First Amendment to Senior Secured Revolving Credit Agreement,
dated as of July 30, 1997, between Wyndham Hotel Corporation,
the Financial Institutions party to the Credit Agreement and
Bankers Trust Company (incorporated by reference to Exhibit
10.33 to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997).
10.34 -- Agreement Regarding Termination of Management Agreements,
dated as of July 25, 1997, between Homegate Hospitality, Inc.,
VPS I, L.P., Prime Hospitality Corp., Crow Realty Investors,
L.P. and Wyndham Management Corporation, Wyndham Hotel
Corporation and Wyndham IP Corporation (including related
Promissory Note) (incorporated by reference to Exhibit Number
10.34 in the Company's Quarterly Report on Form 10-Q/A for the
quarter ended June 30, 1997 filed with the Securities and
Exchange Commission on August 29, 1997).
10.35 -- Form of Registration Rights Agreement by and between Patriot
American Hospitality, Inc., Patriot American Hospitality
Operating Company and each of the parties signatory thereto
(incorporated by reference to Exhibit Number 10.35 in the
Company's Quarterly Report on Form 10-Q/A for the quarter
ended June 30, 1997 filed with the Securities and Exchange
Commission on August 29, 1997).
10.36 -- Ratification Agreement between Patriot American Hospitality,
Inc. and Wyndham Hotel Corporation (incorporated by reference
to Exhibit Number 10.36 in the Company's Quarterly Report on
Form 10-Q/A for the quarter ended June 30, 1997 filed with the
Securities and Exchange Commission on August 29, 1997).
10.37 -- Ratification Agreement between Patriot American Hospitality
Operating Company, formerly known as Bay Meadows Operating
Company, Patriot American Hospitality, Inc. and C.F.
Securities, L.P. (incorporated by reference to Exhibit Number
10.37 in the Company's Quarterly Report on Form 10-Q/A for the
quarter ended June 30, 1997 filed with the Securities and
Exchange Commission on August 29, 1997).
10.38 -- Form of Cooperation Agreement between Patriot American
Hospitality, Inc. and Patriot American Hospitality Operating
Company (incorporated by reference to Exhibit Number 10.38 in
the Company's Quarterly Report on Form 10-Q/A for the quarter
ended June 30, 1997 filed with the Securities and Exchange
Commission on August 29, 1997).
10.39 -- Form of Subscription Agreement between Wyndham Hotel
Corporation and Patriot American Hospitality Operating Company
(incorporated by reference to Exhibit Number 10.39 in the
Company's Quarterly Report on Form 10-Q/A for the quarter
ended June 30, 1997 filed with the Securities and Exchange
Commission on August 29, 1997).
10.40 -- Letter Agreement, dated April 14, 1997, among Wyndham Hotel
Corporation, C.F. Securities L.P. and TCF Hotels, L.P. with
respect to the Merger Agreement, the Stock Purchase Agreement
and the Omnibus Purchase and Sale Agreement (incorporated by
reference to Exhibit Number 10.40 in the Company's Quarterly
Report on Form 10-Q/A for the quarter ended June 30, 1997
filed with the Securities and Exchange Commission on August
29, 1997).
10.41 -- Lease Agreement, dated July 29, 1997, between IM Joint
Venture and Wyndham Hotel Corporation with respect to the
Company's corporate headquarters.
10.42 -- Agreement with respect to Assignment of Redemption Rights,
date July 29, 1997, between IFM Partnership and Wyndham Hotel
Corporation.
30
<PAGE> 31
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
11 -- Computation of Earnings Per Share.
27.1 -- Financial Data Schedule.
(b) Reports on Form 8-K:
Form 8-K dated August 15, 1997 was filed to report the acquisition of
ClubHouse Hotels, Inc. Pro Forma financial information of WHC and
historical financial statements of ClubHouse Hotels, Inc. were filed on
Form 8-K/A dated September 18, 1997.
31
<PAGE> 32
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
WYNDHAM HOTEL CORPORATION
--------------------------------------------
(Registrant)
Date: November 13, 1997 By: /S/ James D. Carreker
-----------------------------------------
James D. Carreker
President and Chief Executive Officer
Date: November 13, 1997 By: /S/ Anne L. Raymond
-----------------------------------------
Anne L. Raymond
Chief Financial Officer, Executive
Vice President and Director (Principal
Financial Officer)
32
<PAGE> 33
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
<S> <C>
2.1 -- Agreement and Plan of Merger, dated as of April 14, 1997,
by and between Patriot American Hospitality, Inc. and the
Company (incorporated by reference to Exhibit Number 2.2 to
Schedule 13D filed with the Securities and Exchange Commission
on April 24, 1997 on behalf of CF Securities, L.P.) The
"Disclosure Letters" referred to in the Agreement and Plan of
Merger are omitted, as they constitute "schedules" within the
meaning of Item 601 of Regulation S-K. The Company undertakes
to furnish supplementally such Disclosure Letters to the
Commission upon request.
3.1 -- Amended and Restated Certificate of Incorporation of the
Company (Incorporated by reference to Exhibit Number 3.1 in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 1, 1996).
3.2 -- Amended and Restated Bylaws of the Company (Incorporated by
reference to Exhibit Number 3.2 in Amendment No. 1 to the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
May 1, 1996).
4.1 -- Form of specimen certificate for the Common Stock
(Incorporated by reference to Exhibit Number 4.1 in Amendment
No. 2 to the Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities and Exchange
Commission on May 14, 1996).
4.2 -- Relevant portions of Amended and Restated Certificate of
Incorporation (Reference is hereby made to Exhibit Number
3.1).
10.1(a) -- Management Agreement dated as of May 10, 1995 by and between
Anatole
</TABLE>
<PAGE> 34
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
<S> <C>
Hotel Investors, L.P. and Wyndham Hotel Company Ltd.
(Incorporated by reference to Exhibit Number 10.1(a) in the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
March 11, 1996).
10.1(b) -- Form of Management Agreement dated as of September 27, 1994
by and between Bedrock Annapolis Investment Partners Level I,
L.P. and Wyndham Hotel Company Ltd. (together with attachment)
(Incorporated by reference to Exhibit Number 10.1(b) in the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
March 11, 1996).
10.1(c) -- Management Agreement dated as of March 10, 1988 by and
between Franklin Plaza Associates and Wyndham Hotel Company,
as amended by First Amendment dated November 17, 1993
(Incorporated by reference to Exhibit Number 10.1(c) in the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
March 11, 1996).
10.1(d) -- Service Agreement dated as of November 17, 1993 by and
between Franklin Plaza Realty Limited Partnership and Wyndham
Hotel Company Ltd. (Incorporated by reference to Exhibit
Number 10.1(d) in the Company's Registration Statement on Form
S-1 (Reg. No. 333-2214) filed with the Securities and Exchange
Commission on March 11, 1996).
10.1(e) -- Management Agreement dated as of December 1, 1984 by and
between Houston Greenspoint Hotel Associates and Wyndham Hotel
Company (Incorporated by reference to Exhibit Number 10.1(e)
in the Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
March 11, 1996).
10.1(f) -- Management Agreement dated as of December 4, 1991 by and
between Itasca Hotel Company and Wyndham Hotel Company Ltd.,
as amended by Amendment dated March 19, 1996 (Incorporated by
reference to exhibit number 10.1(f) in the Company's
Registration Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on March 11,
1996).
10.1(g) -- Management Agreement dated as of June 30, 1994 by and
between Waterfront Hotel Associates, S.E. and Old San Juan
Management, Ltd. S.E. (Incorporated by reference to Exhibit
Number 10.1(g) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on May 1, 1996).
10.1(h) -- Management Agreement dated as of May 26, 1995 by and
between Convention Center Boulevard Hotel, Limited and Wyndham
Hotel Company Ltd. (Incorporated by reference to Exhibit
Number 10.1(h) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on May 1, 1996).
10.1(i) -- Management Agreement dated as of August 25, 1993 by and
between Playhouse Square Hotel Limited Partnership and Wyndham
Hotel Company
</TABLE>
<PAGE> 35
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
<S> <C>
Ltd. (Incorporated by reference to Exhibit Number 10.1(i) in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 1, 1996).
10.1(j) -- Management Agreement dated as of March 1, 1986 by and
between CLC Partnership and Wyndham Hotel Company, as amended
by First Amendment dated June 30, 1988 (Incorporated by
reference to Exhibit Number 10.1(j) in Amendment No. 1 to the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
May 1, 1996).
10.1(k) -- Management Agreement dated as of December 22, 1987 by and
among Badger XVI Limited Partnership, Crow Division Partners
and Wyndham Hotel Company, as amended by First Amendment dated
February 26, 1988 (Incorporated by reference to Exhibit Number
10.1(k) in Amendment No. 1 to the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on May 1, 1996).
10.1(l) -- Management Agreement dated as of November 20, 1987 by and
between Hotel and Convention Center Partners I, Ltd. And
Wyndham Hotel Corporation II, Inc., as amended by Amendment
dated November 1, 1993 (Incorporated by reference to Exhibit
Number 10.1(l) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on May 1, 1996).
10.2 -- Investment Agreement dated as of May 2, 1994 among The
Hampstead Group, Inc., Wyndham Hotel Company Ltd., The
Partners in Wyndham Hotel Company Ltd., and Crow Family
Partnership, L.P., as amended (Incorporated by reference to
Exhibit Number 10.2 in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on May 1, 1996).
10.3(a) -- Lease dated as of April 1, 1996 by and between Hospitality
Properties Trust and Garden Hotel Associates II Limited
Partnership (Incorporated by reference to Exhibit Number
10.3(a) in the Company's Registration Statement on Form S-1
(Reg. No. 333-18507) filed with the Securities and Exchange
Commission on January 27, 1997).
10.3(b) -- Lease Agreement dated as of March 1, 1988 by and between
Lincoln Island Associates No. 1, Limited and WHI Limited
Partnership (Incorporated by reference to Exhibit Number
10.3(b) in the Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities and Exchange
Commission on March 11, 1996).
10.3(c) -- Lease Agreement dated December 19, 1989 by and between Rose
Hall Hotel Limited and Rose Hall Associates Limited
Partnership (Incorporated by reference to Exhibit Number
10.3(c) in the Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities and Exchange
Commission on March 11, 1996).
10.3(d) -- Sublease Agreement dated as of November 17, 1989 by and
between Copley-Commerce-Telegraph #1 Associates, as assignee
of Crow-Staley-
</TABLE>
<PAGE> 36
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
<S> <C>
Commerce #1 Limited Partnership and Commerce Hotel Partners
Ltd. (Incorporated by reference to Exhibit Number 10.3(d) in
the Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
March 11, 1996).
10.3(e) -- Ground Lease dated as of March 26, 1987 by and between Fred
C. Boysen, Dorothy Boysen, Ted Boysen and Rose Boysen and
Garden Hotel Associates Limited Partnership, as assignee of
Ramada Hotel Operating Company as amended by First Amendment
dated as of May 7, 1990 (Incorporated by reference to Exhibit
Number 10.3(e) in the Company's Registration Statement on Form
S-1 (Reg. No. 333-2214) filed with the Securities and Exchange
Commission on March 11, 1996).
10.3(f) -- Lease Agreement dated as of November 26, 1990 by and
between Tower 2001 Limited Partnership and Wyndham Hotel
Company Ltd., as amended by Letter Agreement dated March 9,
1994 and Letter Agreement dated March 22, 1995, and as amended
by Amendment No. 1 dated as of November 30, 1995 (Incorporated
by reference to Exhibit Number 10.3(f) in the Company's
Registration Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on March 11,
1996).
10.3(g) -- Lease Agreement dated as of January 1992 by and between 475
Park Avenue South Co. and Wyndham Hotel Company Ltd., as
amended by Amendment of Lease dated January 30, 1995
(Incorporated by reference to Exhibit Number 10.3(g) in the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
March 11, 1996).
10.3(h) -- Sublease dated as of May 31, 1995 between Banc One Mortgage
Corporation and Wyndham Hotels & Resorts (Incorporated by
reference to Exhibit Number 10.3(h) in the Company's
Registration Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on March 11,
1996).
10.3(i) -- Lease Agreement dated as of May 16, 1994 by and between
Wirtz Realty Corporation, as agent for 333 Building
Corporation and Wyndham Hotel Company Ltd. (Incorporated by
reference to Exhibit Number 10.3(i) in Amendment No. 1 to the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
May 1, 1996).
10.3(j) -- Lease Agreement dated as of May 18, 1994 by and between
Columbia Executive Offices, Inc. and The Inn at Semiahmoo a
Wyndham Resort (Incorporated by reference to Exhibit Number
10.3(j) in Amendment No. 1 to the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on May 1, 1996).
10.3(k) -- Lease Agreement dated as of January 8, 1997 by and between
HPTSLC Corporation and WHC Salt Lake City Corporation
(Incorporated by reference to Exhibit Number 10.3(k) in the
Company's Registration Statement on Form S-1 (Reg. No.
333-18507) filed with the Securities and Exchange Commission
on January 27, 1997.).
</TABLE>
<PAGE> 37
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
<S> <C>
10.4 -- Master Alliance Agreement dated as of January 9, 1997 by
and among American General Hospitality Corporation, American
General Hospitality Operating Partnership, L.P., WHC Franchise
Corporation and WHC Development Corporation (Incorporated by
reference to Exhibit Number 10.4 in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997.).
10.5 -- Limited Guaranty Agreement dated as of January 8, 1997 made
by the Company for the benefit of HPTSLC Corporation
(Incorporated by reference to Exhibit Number 10.5 in the
Company's Registration Statement on Form S-1 (Reg. No.
333-18507) filed with the Securities and Exchange Commission
on January 27, 1997).
10.5(a) -- Form of Asset Management Agreement to be entered into
between the Company and various Crow Family Real Estate
Entities (Incorporated by reference to Exhibit Number 10.5(a)
in Amendment No. 2 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 14, 1996).
10.6(a) -- Service Agreement, dated as of May 21, 1996, by and between
the Company and ISIS 2000 LP (Incorporated by reference to
Exhibit Number 10.6(a) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the Securities and
Exchange Commission on January 27, 1997).
10.6(b) -- Service Agreement, dated as of May 21, 1996, by and between
the Company and Wynright Insurance (Incorporated by reference
to Exhibit Number 10.6(b) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.6(c) -- Service Agreement, dated as of May 21, 1996, by and between
the Company and CW Synergistech, LP (Incorporated by reference
to Exhibit Number 10.6(c) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.7 -- Indenture relating to the 10 1/2% Senior Subordinated Notes
due 2006 (Incorporated by reference to Exhibit Number 10.10 in
the Company's Registration Statement on Form S-1 (Reg. No.
333-18507) filed with the Securities and Exchange Commission
on January 27, 1997).
10.8 -- Stockholders' Agreement ("Stockholders' Agreement") among
Wyndham Hotel Corporation and the Stockholders listed on the
signature pages thereof (Incorporated by reference to Exhibit
Number 10.13 in the Company's Registration Statement on Form
S-1 (Reg. No. 333-18507) filed with the Securities and
Exchange Commission on January 27, 1997).
10.9 -- Registration Rights Agreement among Wyndham Hotel
Corporation and the parties identified on the signature pages
thereof (Incorporated by reference to Exhibit Number 10.14 in
the Company's Registration Statement on Form S-1 (Reg. No.
333-18507) filed with the Securities and Exchange Commission
on January 27, 1997).
</TABLE>
<PAGE> 38
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
<S> <C>
10.10(a) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and James D. Carreker (Incorporated by reference
to Exhibit Number 10.15(a) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.10(b) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and Anne L. Raymond (Incorporated by reference to
Exhibit Number 10.15(b) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.10(c) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and Harlan R. Crow (Incorporated by reference to
Exhibit Number 10.15(c) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.10(d) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and Daniel A. Decker (Incorporated by reference to
Exhibit Number 10.15(d) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.10(e) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and Susan T. Groenteman (Incorporated by reference
to Exhibit Number 10.15(e) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.10(f) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and Stanley M. Koonce, Jr. (Incorporated by
reference to Exhibit Number 10.15(f) in the Company's
Registration Statement on Form S-1 (Reg. No. 333-18507) filed
with the Securities and Exchange Commission on January 27,
1997).
10.10(g) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and Leslie V. Bentley (Incorporated by reference
to Exhibit Number 10.15(g) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.10(h) -- Indemnification Agreement by and between Wyndham Hotel
Corporation and Robert A. Whitman (Incorporated by reference
to Exhibit Number 10.15(h) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January 27, 1997).
10.11(a) -- 6% Promissory Note made by James D. Carreker (Incorporated
by reference to Exhibit Number 10.16(a) in Amendment No. 1 to
the Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
May 1, 1996).
10.11(b) -- 6% Promissory Note made by Leslie V. Bentley (Incorporated
by reference to exhibit number 10.16(b) in Amendment No. 1 to
the Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
May 1, 1996).
10.11(c) -- 6% Promissory Note made by Eric A. Danziger (Incorporated
by reference to Exhibit Number 10.16(c) in Amendment No. 1 to
the Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and
</TABLE>
<PAGE> 39
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
<S> <C>
Exchange Commission on May 1, 1996).
10.11(d) -- 6% Promissory Note made by Anne L. Raymond (Incorporated by
reference to Exhibit Number 10.16(d) in Amendment No. 1 to the
Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
May 1, 1996).
10.11(e) -- 6% Promissory Note made by Stanley M. Koonce, Jr.
(Incorporated by reference to Exhibit Number 10.16(e) in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 1, 1996).
10.11(f) -- 6% Promissory Note made by Wyndham Employees Ltd.
(Incorporated by reference to Exhibit Number 10.16(f) in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 1, 1996).
10.12 -- Stockholders' Agreement Consent dated September 30, 1996
(Incorporated by reference to Exhibit 10.12 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1997).
10.13(a) -- Wyndham Employees Savings & Retirement Plan (Incorporated
by reference to Exhibit Number 10.19(a) in Amendment No. 2 to
the Company's Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange Commission on
May 14, 1996).
10.13(b) -- Wyndham Hotel Corporation 1996 Long Term Incentive Plan, as
revised (Incorporated by reference to Exhibit Number 10.19(b)
in Amendment No. 3 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 20, 1996).
10.13(c) -- Non-Employee Directors' Retainer Stock Plan, as revised
(Incorporated by reference to Exhibit Number 10.19(c) in
Amendment No. 3 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 20, 1996).
10.14 -- Operating Deficit Guaranty and Reserves Agreement dated as
of August 25, 1993 by and among Playhouse Square Hotel Limited
Partnership, Society National Bank and the Lenders
(Incorporated by reference to Exhibit Number 10.22 in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 1, 1996).
10.15 -- Registration Rights Agreement dated as of September 30,
1996 between the Company and Smith Barney, Inc. (Incorporated
by reference to Exhibit Number 10.15 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1996, is
filed with the Securities and Exchange Commission on March 27,
1997).
10.16 -- Registration Rights Agreement dated as of April 29, 1996
between the Company and General Electric Investment
Corporation (Incorporated by reference to Exhibit Number 10.16
to the Company's Annual Report on form 10-K for the year ended
December 31, 1996, is filed with the Securities and Exchange
Commission on March 27, 1997).
</TABLE>
<PAGE> 40
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
<S> <C>
10.17 -- Promissory Note dated April 15, 1995 between the Company
and WFLP (Incorporated by reference to Exhibit Number 10.17 to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1996, is filed with the Securities and Exchange
Commission on March 27, 1997).
10.18 -- Computerized Reservation Service Agreement between ISIS
2000 and the Company (Incorporated by reference to Exhibit
Number 10.28 in the Company's Registration Statement on Form
S-1 (Reg. No. 333-18507) filed with the Securities and
Exchange Commission on January 27, 1997).
10.19 -- Indemnification Agreements by and between Elise Turner as
an Officer of GHMB, Inc.; MBAH, Inc.; CHMB, Inc.; Waterfront
Management Corporation; PSMB, Inc.; MTMB, Inc.; MDMB, Inc.;
AMMB, Inc.; OHMB, Inc.; WNMB, Inc.; MBWD, Inc.; MBWH, Inc.;
and BHMB, Inc., which Corporations are the Holders of Liquor
Licenses, and Wyndham Management Corporation (Incorporated by
reference to Exhibit Number 10.29 in the Company's
Registration Statement on Form S-1 (Reg. No. 333-18507) filed
with the Securities and Exchange Commission on January 27,
1997).
10.20 -- Senior Secured Revolving Credit Agreement (the "Credit
Agreement") among Wyndham Hotel Corporation, The Lenders Party
Thereto and Bankers Trust Company (incorporated by reference
to the Company's Quarterly Report on Form 10-Q for the Quarter
Ended June 30, 1996).
10.21 -- Management Contract between Homegate Hospitality, Inc. and
the Company, dated August 26, 1996 (incorporated by reference
to Exhibit Number 10.1 of the Company's Quarterly Report on
Form 10-Q for the Quarter ended September 30, 1996).
10.22 -- Proxy Agreement, dated as of April 14, 1997, by and between
Patriot American Hospitality, Inc. and CF Securities, L.P.,
James D. Carreker, Leslie V. Bentley, Anne L. Raymond, Stanley
M. Koonce, Jr. And the Company (incorporated by reference to
Exhibit Number 10.1 to Schedule 13D filed with the Securities
and Exchange Commission on April 24, 1997 on behalf of CF
Securities, L.P.).
10.23 -- Asset Management Agreements between Wyndham Hotel
Corporation and Playhouse Square Hotel L.P. and the other
Parties Listed on Schedule A attached thereto (incorporated by
reference to Exhibit Number 10.23 in the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1997).
10.24 -- Indemnification Agreements between the Company and Susan R.
Bolger and the other Parties Listed on Schedule A attached
thereto (incorporated by reference to Exhibit Number 10.24 in
the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997).
10.25 -- Capital Contribution Note dated as of December 22, 1995 by
and between Pleasanton Hotel Partners, L.P. and the Company
(Incorporated by reference to Exhibit Number 10.18(a) in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
</TABLE>
<PAGE> 41
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
<S> <C>
Exchange Commission on May 1, 1996).
10.26 -- Capital Contribution Note dated as of October 2, 1995 by
and between WHC-LG Hotel Partners and the Company
(Incorporated by reference to Exhibit Number 10.18(b) in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 1, 1996)
10.27 -- Capital Contribution Note dated as of May 26, 1995 by and
between New Orleans Hotel I, L.P. and the Company
(Incorporated by reference to Exhibit Number 10.18(c) in
Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the Securities and
Exchange Commission on May 1, 1996).
10.28 -- FF&E Contract, dated June 30, 1994, by and between Wyndham
Hotel Company Ltd. and Waterfront Hotel Associates, S.E., as
amended (incorporated by reference to Exhibit Number 10.28 in
the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997).
10.29 -- FF&E and Technical Services Contract, dated May 26, 1995,
by and between Wyndham Hotel Company Ltd. And Convention
Center Boulevard Hotel, Limited (incorporated by reference to
Exhibit Number 10.29 in the Company's Quarterly Report on Form
10-Q for the quarter ended March 31, 1997).
10.30 -- Corporate Guaranty Agreements by Wyndham Hotel Corporation
on behalf of ISIS 2000 Limited Partnership for the benefit of
Banc One Leasing Corporation, including Master Agreement and
Schedule of Additional Guaranty Agreements (incorporated by
reference to Exhibit Number 10.30 in the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1997).
10.31 -- Guarantor Agreement, dated May 26, 1995 by and among
Convention Center Boulevard Hotel, Ltd., the Company, Darryl
D. Berger and Roger H. Ogden (incorporated by reference to
Exhibit Number 10.31 in the Company's Quarterly Report on Form
10-Q filed for the quarter ended March 31, 1997).
10.32 -- Corporate Guaranty Agreement, dated May 15, 1996, by
Wyndham Hotel Corporation on behalf of ISIS 2000 Limited
Partnership for the benefit of IBM Credit Corporation
(incorporated by reference to Exhibit Number 10.32 in the
Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997).
10.33 -- First Amendment to Senior Secured Revolving Credit
Agreement, dated as of July 30, 1997, between Wyndham Hotel
Corporation, the Financial Institutions party to the Credit
Agreement and Bankers Trust Company (incorporated by
reference to Exhibit 10.33 to the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1997).
10.34 -- Agreement Regarding Termination of Management Agreements,
dated as of July 25, 1997, between Homegate Hospitality,
Inc., VPS I, L.P., Prime Hospitality Corp., Crow Realty
Investors, L.P. and Wyndham Management Corporation, Wyndham
Hotel Corporation and Wyndham IP Corporation (including
related Promissory Note) (incorporated by reference to
Exhibit Number 10.34 in the Company's Quarterly Report on
Form 10-Q/A for the Quarter ended June 30, 1997 filed with
the Securities Exchange Commission on August 29, 1997).
10.35 -- Form of Registration Rights Agreement by and between Patriot
American Hospitality, Inc., Patriot American Hospitality
Operating Company and each of the parties signatory thereto
(incorporated by reference to Exhibit Number 10.35 in the
Company's Quarterly Report on Form 10-Q/A for the Quarter
ended June 30, 1997 filed with the Securities Exchange
Commission on August 29, 1997).
10.36 -- Ratification Agreement between Patriot American Hospitality,
Inc. and Wyndham Hotel Corporation (incorporated by
reference to Exhibit Number 10.36 in the Company's Quarterly
Report on Form 10-Q/A for the Quarter ended June 30, 1997
filed with the Securities Exchange Commission on August 29,
1997).
10.37 -- Ratification Agreement between Patriot American Hospitality
Operating Company, formerly known as Bay Meadows Operating
Company, Patriot American Hospitality, Inc. and C.F.
Securities, L.P. (incorporated by reference to Exhibit
Number 10.37 in the Company's Quarterly Report on Form 10-Q/A
for the Quarter ended June 30, 1997 filed with the Securities
Exchange Commission on August 29, 1997).
10.38 -- Form of Cooperation Agreement between Patriot American
Hospitality, Inc. and Patriot American Hospitality Operating
Company (incorporated by reference to Exhibit Number 10.38 in
the Company's Quarterly Report on Form 10-Q/A for the Quarter
ended June 30, 1997 filed with the Securities Exchange
Commission on August 29, 1997).
10.39 -- Form of Subscription Agreement between Wyndham Hotel
Corporation and Patriot American Hospitality Operating Company
(incorporated by reference to Exhibit Number 10.39 in the
Company's Quarterly Report on Form 10-Q/A for the Quarter
ended June 30, 1997 filed with the Securities Exchange
Commission on August 29, 1997).
10.40 -- Letter Agreement, dated April 14, 1997, among Wyndham Hotel
Corporation, C.F. Securities L.P. and TCF Hotels, L.P. with
respect to the Merger Agreement, the Stock Purchase Agreement
and the Omnibus Purchase and Sale Agreement (incorporated by
reference to Exhibit Number 10.40 in the Company's Quarterly
Report on Form 10-Q/A for the Quarter ended June 30, 1997
filed with the Securities Exchange Commission on August 29,
1997).
10.41 -- Lease Agreement, dated July 29, 1997, between IM Joint
Venture and Wyndham Hotel Corporation with respect to the
Company's corporate headquarters.
10.42 -- Agreement with respect to Assignment of Redemption Rights,
date July 29, 1997, between IFM Partnership and Wyndham Hotel
Corporation.
11 -- Computation of Earnings Per Share.
27.1 -- Financial Data Schedule.
</TABLE>
<PAGE> 1
LEASE AGREEMENT
between
IM JOINT VENTURE
and
WYNDHAM HOTEL CORPORATION
NOTICE
MORTAGEES APPROVAL REQUIRED FOR ALL CHANGES
INFOMART(R)
Where Technology Lives
1950 Stemmons Freeway
Dallas, Texas 75207
214-800-8000
INFOMART is a registered servicemark of
IFM Partnership, 1950 Stemmons Freeway,
Suite 6038, Dallas, Texas 75207
<PAGE> 2
LEASE AGREEMENT
INFOMART
WHERE TECHNOLOGY LIVES
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of the
29th day of July, 1977,by and between IM JOINT VENTURE, a Texas joint venture
("Landlord"), whose address is 1950 Stemmons Freeway, Dallas, Texas 75207 and
WYNDHAM HOTEL CORPORATION, a Texas corporation ("Tenant"), whose address before
the "Rental Commencement Date" (as defined in Section 1.21 below) is 2001 Bryan
Street, Suite 2300, Dallas, Texas 75201 and after the "Rental Commencement
Date" is 1950 Stemmons Freeway, Suite 6001, Dallas, TX 75207. If there shall be
more than one party executing this Lease as Tenant, their obligations shall be
joint and several. As used in this Lease, the terms set forth in Article I of
this Lease shall have the respective meanings indicated in such Article.
Subject to all of the terms and conditions of this Lease, and in
consideration of the mutual covenants and obligations contained in this Lease,
Landlord and Tenant agree as follows:
ARTICLE 1 - DEFINITIONS
SECTION 1.1. BASE RENTAL shall mean the following:
From the "Commencement Date" (defined in Section 1.5 hereof) until the
"Rental Commencement Date" (defined in Section 1.21 hereof), the sum of Zero and
00/100ths Dollars ($0.00) per month; and
From the "Rental Commencement Date" until the end of the Lease Term, the
sum of Ninety-nine Thousand Seven Hundred Thirty and 07/100ths Dollars
($99,730.07) per month.
SECTION 1.2. BASE YEAR shall mean 1997.
SECTION 1.3. THE "BUILDING" shall mean the information processing market
center located at 1950 Stemmons Freeway in Dallas, Texas upon the real property
(the "Property") described in Exhibit "A" attached hereto and incorporated
herein.
SECTION 1.4. BUILDING RULES shall mean rules and regulations adopted and
altered by Landlord from time to time for the safety, care and cleanliness of
the Leased Premises and the Building and for the preservation of good order
therein, all of which will be sent by Landlord to Tenant in writing and shall
thereafter be carried out and observed by Tenant; provided, however, that
alterations, revisions, or additions to Building Rules shall not unreasonably
interfere with the conduct of its Permitted Use and shall not impose additional
1
WYNDHAM HOTEL CORPORATION
07/17/90
<PAGE> 3
unreasonable costs on Tenant. The initial Building Rules are attached hereto as
Exhibit "B".
SECTION 1.5. COMMENCEMENT DATE shall mean the date on which Tenant
commences occupancy of the Leased Premises which shall be the date Tenant takes
possession of the Leased Premises for the purpose of equipping, furnishing, and
improving the Leased Premises. The term "Rental Commencement Date" shall mean as
defined in Section 1.21 hereof.
SECTION 1.6. COMMON AREAS shall mean those areas devoted to corridors,
elevator foyers, restrooms, mechanical rooms, janitorial closets, electrical and
telephone closets, vending areas, lobby areas, meeting rooms, auditoriums,
exhibit halls and other similar facilities provided for the common use or
benefit of tenants generally.
SECTION 1.7. INFOMART shall mean "INFOMART - Where Technology Lives" and
shall include that certain Building and Property as the same currently exists or
as it may from time to time hereafter be expanded or modified.
SECTION 1.8. INSURANCE COSTS shall mean all costs incurred by Landlord in
providing insurance, including but not limited to, property, liability and
casualty insurance, on the Building and Property, but excluding all insurance
costs which Tenant is required to provide under Section 5.3 hereof.
SECTION 1.9. LEASE TERM shall mean a term which commences on the
Commencement Date, and continues for one hundred twenty (120) full calendar
months from the "Rental Commencement Date".
SECTION 1.10. LEASED PREMISES shall mean Suite Nos. 6001 and 5008 in the
Building, as outlined or marked in red on the floor plan of the Building
attached to this Lease as Exhibit "C".
SECTION 1.11. PERMITTED USE shall mean use for offices, storage and service
areas incidental and related to such use and for the display and marketing of
information processing and communications products and services.
SECTION 1.12. RELOCATION SPACE shall mean a space designated by Landlord of
comparable size to the Leased Premises which is contiguous and at the same cost
per Rentable Square Foot as the Leased Premises and otherwise reasonably
acceptable to Tenant.
SECTION 1.13. RENTABLE SQUARE FEET shall mean the Usable Square Feet of the
Leased Premises, together with an additional amount representing a portion of
the Common Areas, Service Areas and other non-tenant space on floors two (2)
through six (6) in the Building. For purposes of this Lease, the parties have
agreed that the Leased Premises shall be deemed to consist of 119,644 Rentable
Square Feet on floors five (5) and six (6) of the Building (which shall be
deemed to consist of 1,056,200 Rentable Square Feet). Tenant shall have the
option, which must be exercised by written notice from Landlord to Tenant prior
to the Rental Commencement Date, to have the Leased Premises remeasured in order
to determine the actual number of Rentable Square Feet within the Leased
Premises. The failure of Tenant to provide Landlord with written notice of such
election on or before the Rental Commencement Date shall be deemed to be an
irrevocable waiver of Tenant's rights to have the Leased Premises remeasured. In
the event that Tenant elects to have the Leased Premises remeasured, in the
manner and within the time period specified above, then Landlord's and Tenant's
architect shall remeasure the Leased Premises within thirty (30) days of the
Rental Commencement Date in order to determine the actual number of Rentable
Square Feet within the Leased Premises. In remeasuring the Leased Premises, such
architects shall calculate the number of Usable Square Feet within the Leased
Premises (on the basis specified in Section 1.19 below) and then add the "Common
Area Factor" (as defined below) to the number of Usable Square Feet within the
Leased Premises in order to determine the number of Rentable Square Feet within
the Leased Premises. Landlord and Tenant agree that the "Common Area Factor"
shall be fourteen and thirty-five one hundredths percent (14.35%) and that the
Common Area Factor is substantially less than the actual number of gross square
feet within the Common Areas, Service Areas, and other non-tenant spaces in the
Building. Therefore, the Common Area shall not be subject to adjustment.
2
WYNDHAM HOTEL CORPORATION
07/17/90
<PAGE> 4
SECTION 1.14. SECURITY DEPOSIT shall mean as described in Section 6.9
hereof.
SECTION 1.15. SERVICE AREAS shall mean those areas within the outside walls
used for elevator mechanical rooms, building stairs, elevator shafts, flues,
vents, stacks, pipe shafts and vertical penetrations (but shall not include any
such areas for the exclusive use of a particular tenant).
SECTION 1.16. TAXES shall mean all taxes and assessments and governmental
charges, whether federal, state, county or municipal, and whether they be by
taxing districts or authorities presently taxing the Leased Premises or the
Property or any part thereof, or by others, subsequently created or otherwise,
and any other taxes and assessments attributable to the Property or its
operation but shall not include penalties for late or non-payment thereof.
Should taxes become payable over a number of years, only the portion of taxes
attributable to the Lease Term shall be included herein.
SECTION 1.17. TENANT'S PROPORTIONATE SHARE shall mean a fraction, the
numerator of which is the number of Rentable Square Feet comprising the Leased
Premises, and the denominator of which is the number of Rentable Square Feet
comprising floors two (2) through six (6) of the Building. Accordingly, the
parties acknowledge and agree that Tenant's Proportionate Share under this Lease
is 11.326 percent.
SECTION 1.18. TRADE FIXTURES shall mean any and all signs placed by Tenant
within the Leased Premises pursuant to provisions hereof and any and all items
of property used by Tenant in the Leased Premises, including but not limited to
furniture and equipment; provided, however, that the term Trade Fixtures shall
not include any permanent leasehold improvements, including but not limited to
any floor, wall or ceiling coverings, any interior walls or partitions, any
lighting fixtures, track lights or any property which is a part of or associated
with any electrical, plumbing, or mechanical system, notwithstanding that the
same may have been installed within the Leased Premises.
SECTION 1.19. USABLE SQUARE FEET shall mean the gross number of square feet
within the Leased Premises, which is determined as follows: (a) when measuring a
demising wall between a tenant space and a corridor, the boundary shall be along
the corridor side of the demising wall, (b) when measuring a demising wall
between a tenant space and the building exterior, the boundary shall be along
the exterior face of the glass, (c) when measuring a demising wall between a
tenant space and an adjacent tenant space, the boundary shall be along the
centerline of the demising wall, and (d) when measuring a demising wall between
a tenant space and a Building common space (i.e., electrical rooms, mechanical
rooms, vertical penetrations, and chases), the boundary shall be along the
tenant side of the demising wall.
SECTION 1.20. UTILITY COSTS shall mean all third-party costs incurred by
Landlord in providing electricity, gas, water and sewage disposal facilities to
the Building, including, without limitation, electricity used for heating, air
conditioning, operation of office machines and other equipment used on or about
the Building, and elevator and escalator service and lighting, but excluding all
such costs which Tenant may, from time to time, be obligated or elect under the
provisions of Section 2.5 hereof to pay on a separately metered basis.
SECTION 1.21. RENTAL COMMENCEMENT DATE shall mean the earlier of the date
Tenant receives a Certificate of Occupancy for a given floor, or any portion
thereof, as to such portion or floor, of the Leased Premises or January 31,
1998.
SECTION 1.22. PREVAILING MARKET RATE shall mean the average effective rate
being paid for space within the Building by new tenants who have leased space
within the Building during the six (6) month period immediately preceding the
date of determination.
3
WYNDHAM HOTEL CORPORATION
07/17/90
<PAGE> 5
ARTICLE 2
SECTION 2.1. LEASED PREMISES AND TERM. Landlord does hereby lease, demise
and let to Tenant and Tenant does hereby lease and take from Landlord the Leased
Premises for a term beginning on the Commencement Date and continuing in full
force and effect for the Lease Term, unless this Lease is terminated earlier
pursuant to the provisions hereof. The Leased Premises are demised hereby
subject to all easements, restrictions, agreements of record, mortgages and
deeds of trust, and zoning and building laws. If Landlord is unable to deliver
possession of the Leased Premises to Tenant as of the Commencement Date
specified in Article 1 for any reason, including, without limitation, the
holding over of any tenant or occupant of the Leased Premises, then the term
"Commencement Date" shall mean such subsequent date upon which the Landlord is
able to deliver possession of the Leased Premises to Tenant, and such failure to
deliver possession of the Leased Premises on the Commencement Date specified in
Article 1 hereof shall not constitute a default by Landlord hereunder or render
Landlord liable for any loss or damage that may be incurred as a result of such
failure. If the Leased Premises are delivered to Tenant for occupancy on a date
prior to the Commencement Date specified in Article 1 hereof, Tenant agrees to
accept and occupy the Leased Premises on such date and the term "Commencement
Date" shall mean such date. Tenant shall commence to furnish, equip, and improve
the Leased Premises, in accordance with Section 4.2(a) hereof, on the
Commencement Date. Landlord shall have no obligation to furnish, equip or
improve the Leased Premises. Landlord's manager for the Building has not
received written notice of any material defects existing in the Leased Premises.
By occupying the Leased Premises subject to Landlord's obligations under Section
8.7 below, Tenant shall be deemed to have accepted the same and to have
acknowledged that the same comply fully with Landlord's covenants and
obligations hereunder. In addition, Tenant shall have the non-exclusive right to
access the Common Area of the Building.
SECTION 2.2. USE. The Leased Premises shall be used and occupied by Tenant
solely for the Permitted Use and for no other purpose. Warehousing and on-site
delivery to customers is prohibited in the Building or any part thereof. Payment
for products or services that are of a retail sales nature are prohibited
(provided, however, that payment or partial payment for orders taken at the
Leased Premises for future delivery to a buyer will be allowed if it is within
the Tenant's normal business practice and is not of a retail sales nature, it
being the intention hereof to permit payments or partial payments intended to
bind an order for future delivery without in any way qualifying or circumventing
the prohibition within the Building against retail sales). Tenant shall not use
or allow the Leased Premises to be used in any manner which obstructs or
interferes with the rights of other tenants of the Building or injures or annoys
such tenants, and Tenant shall not cause, maintain or permit any nuisance in, on
or about the Leased Premises or the Building, or permit or suffer to be
committed any defacement, injury or waste to, in, on, or about the Leased
Premises or the Building.
4
WYNDHAM HOTEL CORPORATION
07/17/90
<PAGE> 6
SECTION 2.3. BASE RENTAL. Tenant agrees to pay the Base Rental to Landlord
for each month during the Lease Term as herein provided. Base Rental for the
first month of the Lease Term shall be due and payable in advance on the
Commencement Date, and Base Rental for each and every month thereafter during
the Lease Term shall be due and payable in advance on the first day of the
month. If the Commencement Date is a day other than the first day of a calendar
month or in the event this Lease terminates on other than the last day of a
calendar month, then Base Rental for such month or months shall be prorated and
the installment or installments so prorated shall be paid in advance. In the
event that Tenant fails to make any payment of Base Rental or any other sums due
hereunder on or before the date any such payment becomes due and payable, the
Tenant shall also be obligated to pay interest on such past due amounts at a
rate equal to the lesser of prime rate plus four percent (4%) per annum or the
highest rate permitted by law, such interest being in addition to and cumulative
of any other rights and remedies which Landlord may have hereunder with regard
to the failure of Tenant to make any payment of Base Rental or any other sum due
hereunder. As used herein, the phrase "prime rate" means, on any day, the rate
of interest per annum then most recently established by NationsBank of Texas,
N.A. as its general reference rate of interest, taking into account such factors
as such bank may deem appropriate, it being understood that such rate is not
necessarily the lowest or best rate actually charged to any customer of such
bank or a favored rate.
SECTION 2.4. TENANT'S PROPORTIONATE SHARE OF TAXES, INSURANCE COSTS AND
UTILITY COSTS. In addition to the payment of Base Rental, Tenant shall pay to
Landlord Tenant's Proportionate Share of Insurance Costs, Taxes and Common Area
Utility Costs in accordance with the following provisions:
(a) Tenant shall pay to Landlord, either in the form of a lump sum
payment due and payable upon demand by Landlord or on a monthly basis
contemporaneously with the payment of Base Rental, as Landlord may elect,
(i) an amount reasonably estimated by Landlord to be Tenant's Proportionate
Share of all Common Area Utility Costs for each calendar year or portion
thereof during the Lease Term, (ii) an amount reasonably estimated by
Landlord to be Tenant's Proportionate Share of all Insurance Costs for each
calendar year or portion thereof during the Lease Term and (iii) an amount
reasonably estimated by Landlord to be Tenant's Proportionate Share of the
amount, if any, by which Taxes for each calendar year or portion thereof
during the term of this Lease exceed Taxes for the Base Year. Upon written
request from Tenant within ninety (90) days of billing, Landlord shall
provide a copy of Landlord's paid previous year's tax bill. Such request
shall occur no more than one (1) time per calendar year.
(b) If at any time Landlord shall have reasonable grounds to believe
that actual Insurance Costs, Taxes or Common Area Utility Costs incurred
will vary from such estimates, then Landlord reserves the right to revise
such estimates accordingly. Upon any such revision, Landlord may, at
Landlord's election, either (i) require Tenant to make a lump sum payment
to Landlord reflecting such revised estimate or (ii) require that the
monthly payments due and payable to Landlord by Tenant under this Section
be revised to an amount which will amortize such revised estimate over the
remainder of the calendar year in which any such revision is made by
Landlord. Upon written request from Tenant within ninety (90) days of
billing, Landlord shall provide a copy of Landlord's previous year's
utility and insurance bills. Such request shall occur no more than one (1)
time per calendar year.
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(c) Within sixty (60) days after the end of any calendar year during
which such payments were made by Tenant, a lump sum payment (or credit
against the next succeeding installments of Base Rental, if any, in case of
amounts owed by Landlord to Tenant) shall be made from Tenant to Landlord
or from Landlord to Tenant, as the case may be, so that Tenant shall have
paid to Landlord only Tenant's Proportionate Share of (i) Utility Costs for
the previous calendar year, (ii), Insurance Costs for the previous calendar
year, and (iii) the amount, if any, by which Taxes for the previous
calendar year exceed Taxes for the Base Year and no more, which obligation
to make such reconciliation payment shall survive the termination of the
Lease. Tenant shall have the right to audit copies of paid invoices for
Common Area Utility Costs, Taxes, and Insurance for the then previous
calendar year within the Lease Term; but Tenant shall not have the right to
audit Landlord's records for any previous calendar year within the Lease
Term or for any year prior to the Commencement Date of this Lease. If
Tenant's audit reveals Landlord's statement for such expenses have been
overstated by more than five percent (5%), then Tenant shall submit a copy
of its audit to Landlord. If Landlord disagrees with the results of
Tenant's audit, Landlord shall submit such audit, and Landlord's records
relative to such expenses, to Landlord's independent auditors for their
review. If Landlord or Landlord's auditors agree that such expenses have
been overstated by more than five percent (5%), then Landlord shall pay all
reasonable costs and expenses of such audit, and, in any event, shall,
within thirty (30) days after the completion of Landlord's review of such
audit, reimburse Tenant for any and all overages. If the audit conducted by
Landlord or Tenant reveals that Landlord's statement for such expenses was
correct, then Tenant shall pay all reasonable costs and expenses incurred
by Landlord relative to such audit. Further, if either audit reveals that
Landlord undercharged Tenant relative to these expenses, then Tenant shall,
within thirty (30) days after the completion of such audit, reimburse
Landlord for any undercharges. Tenant shall not have the right to audit
Landlord's records relative to such expenses more than once in any calendar
year.
(d) If the Commencement Date is a day other than the first day of a
calendar month or if this Lease terminates on other than the last day of a
calendar month, then the amounts due and owing by Tenant to Landlord under
this Section shall be prorated accordingly.
(e) The Common Area Utility Costs charged to Tenant under Section 2.4
shall be at the rates charged to Landlord by the applicable third-party
utility providers.
SECTION 2.5. SEPARATELY METERED UTILITIES AND UTILITY USAGE. Tenant shall
pay upon demand or receipt of an invoice all amounts due and owing with respect
to utilities furnished to the Leased Premises which may, from time to time, be
separately measured and charged to the Tenant by Landlord or any public utility
as may furnish such utilities to the Leased Premises. Tenant will, at Tenant's
sole cost and expense, cause the installation of all facilities necessary to
separately meter electrical usage within the Leased Premises and/or cause the
installation of such riser or risers, wiring, transformer, or electrical panels
as are required to meet Tenant's excess electrical requirements, and Tenant
shall pay to Landlord or, at the election of Landlord, to the applicable public
utility, promptly upon receiving any invoice, all charges for electrical usage
within the Leased Premises; which payment, if any, shall be in addition to sums
required to be paid by Tenant pursuant to Section 2.4 above. Notwithstanding the
foregoing, Landlord may refuse to install, and may withhold consent for Tenant's
installation of, any riser, wiring, transformer, or electrical panel if, in
Landlord's sole judgment, the same are not necessary or would cause permanent
damage or injury to the Building or the Leased Premises or cause or create a
dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs, or expense or interfere with or disturb other tenants or
occupants of the Building. In no event
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shall Landlord incur any liability or obligation with respect to Landlord's
refusal to install, or withholding consent for Tenant's installation of, any
such additional electrical facilities or equipment. In the event that any
electrical service required or used in the Leased Premises shall exceed nine (9)
watts per square foot of Usable Square Feet within the Leased Premises, then
Tenant will, upon request by Landlord, either (a) reduce its usage to nine (9)
watts per square foot of Usable Square Feet within the Leased Premises or (b)
subject to Landlord's prior approval, cause the installation of such riser or
risers, wiring, transformer, or electrical panels as are required to meet
Tenant's excess electrical requirements, all at Tenant's sole cost and expense.
SECTION 2.6. ADDITIONAL RENT; PAYMENTS. All sums of money due and payable
by Tenant to Landlord under the term of this Lease in addition to the Base
Rental shall constitute additional rent hereunder. Landlord shall have the same
remedies for default in the payment of additional rent as are available to
Landlord in the case of a default in the payment of Base Rental. All rent shall
be payable at Landlord's address as provided herein (or at such other address as
may be designated by Landlord from time to time). Tenant agrees to pay all rent
under this Lease at the times and in the manner herein provided, without demand,
counterclaim or set-off.
ARTICLE 3
SECTION 3.1. UTILITIES. Landlord shall use reasonable efforts to cause
public utilities to furnish electricity to the Leased Premises and water to the
Building to the extent and in such manner as is reasonably deemed by Landlord to
be standard for the Building.
SECTION 3.2. SERVICES TO BE FURNISHED BY LANDLORD TO TENANT. Landlord shall
furnish or cause to be furnished during the Lease Term:
(a) Central heating and air conditioning to the Leased Premises and
enclosed public areas of the Building in season;
(b) Non-exclusive passenger escalator and elevator service and
non-exclusive freight elevator service;
(c) Electric lighting service for all public areas of the Building;
(d) Janitorial service for the corridors and other public areas of the
Building; and
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(e) Public toilets and restrooms and public drinking fountains;
These services (other than janitorial service) shall be provided to the Leased
Premises during any eleven (11) hour period, designated by Tenant from time to
time, that falls between 6:00 a.m. and 10:00 p.m. Monday through Friday. Except
as otherwise specifically provided for in this Section 3.2, all other such
services shall be provided during normal business hours reasonably established
by Landlord, at such locations, in such manner and to the extent deemed
reasonable by Landlord, to be adequate for the use and occupancy of the
Building, with due regard for the prudent control of energy.
SECTION 3.3. LANDLORD'S FAILURE TO PROVIDE UTILITIES OR SERVICES. Failure
by Landlord to any extent to furnish or cause to be furnished the utilities or
services described in Section 3.1 and 3.2, or any cessation or interruption
thereof, resulting from any cause, including without limitation, mechanical
breakdown, overhaul or repair of equipment, strikes, riots, acts of God,
shortages of labor or material, compliance by Landlord with any voluntary or
similar governmental or business guidelines, governmental laws, regulations or
restrictions, or any other similar causes shall not render the Landlord liable
in any respect for damages to either person or property, for any economic loss
or other consequential damages incurred by Tenant as a result thereof, be
construed as an eviction of Tenant, result in an abatement of rent, or relieve
Tenant from its obligation to perform or observe any covenant or agreement
contained in this Lease. Notwithstanding the foregoing, in the event that the
Leased Premises are rendered untenantable due to the failure or interruption of
the utilities or services described in Sections 3.1 and 3.2 hereof (for any
reason other than Tenant's fault or neglect) for four (4) consecutive days and
Tenant does not in fact use the applicable portion of the Leased Premises during
such period of such untenantability, Base Rental hereunder shall abate with
respect to that portion of the Leased Premises so rendered untenantable from the
business day Tenant first ceases to use that portion of the Leased Premises to
the earlier to occur of (i) the date Tenant again commences to use that portion
of the Leased Premises or (ii) the date on which that portion of the Leased
Premises is again rendered tenantable. Further, in the event that such
interruption or failure continues for ninety (90) days, Tenant shall have the
option, exercisable in Tenant's sole discretion, to cancel this Lease by
providing written notice to Landlord of Tenant's exercise of such election
within ninety-five (95) days from the date on which Tenant first ceased to use
the Leased Premises as a result of such interruption or failure. The failure of
Tenant to provide Landlord notice of Tenant's election within the manner and
time period specified in the previous sentence shall be deemed to be an
irrevocable waiver of such election with respect to the subject interruption or
failure.
SECTION 3.4. PEACEFUL ENJOYMENT. Subject to the other terms of this Lease,
Landlord covenants that Tenant shall, and may peacefully have, hold and enjoy
the Leased Premises for the Lease Term free of any claims by any party claiming
by, through or under Landlord, provided that Tenant pays the rent to be paid by
Tenant under this Lease and performs all of Tenant's covenants and agreements
herein provided. Landlord shall be entitled to cause Tenant to relocate from the
Leased Premises to a Relocation Space within the Building at any time upon
reasonable written notice to Tenant (which notice shall not be given in excess
of ninety (90) days prior to such relocation nor less than forty-five (45)
days). Landlord or the third-party tenant replacing Tenant in the Leased
Premises shall pay all reasonable costs of accomplishing such relocation. As
used in this Lease, the phrase "reasonable costs of accomplishing such
relocation" shall mean (i) the cost
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of installing tenant improvements in the Relocation Space which are comparable
to the tenant improvements in the Leased Premises at the time of such
relocation, (ii) Tenant's actual moving costs to relocate from the Leased
Premises to the Relocation Space, (iii) the reasonable costs incurred by Tenant
in printing and mailing address change announcements, (iv) the reasonable costs
incurred by Tenant for reprinting stationery, forms, and business cards to note
the change of address, based upon the quantity stored by Tenant in the Leased
Premises at the time of Landlord's notice of such relocation, and (v) such other
reasonable costs relative to such relocation as may be approved by Landlord.
Such a relocation shall not terminate or otherwise affect or modify this Lease
except that from and after the date of such relocation, "Leased Premises" shall
refer to the Relocation Space into which Tenant has been moved, rather than the
original Leased Premises as herein defined.
ARTICLE 4
SECTION 4.1. OPERATION. If the Leased Premises front on the atrium within
the Building, at all other times during all normal business hours of the
Building, Tenant shall keep the Leased Premises open for business for the
Permitted Use, with adequate staff, during normal business hours. For purposes
of this Section 4.1, the term "normal business hours" shall mean 9:00 a.m. to
4:00 p.m. Monday through Friday, excluding holidays and other specially
designated days not to exceed ten (10) in any calendar year. If the Leased
Premises front on the atrium of the Building, the failure of Tenant to initially
occupy the Leased Premises and open the same for business for the Permitted Use
by January 31, 1998, with a minimum of one (1) full-time employee, shall, at the
option of Landlord, be an event of default hereunder. Landlord recognizes that
Tenant has the right to operate in the Leased Premises twenty-four (24) hours a
day, seven (7) days a week.
SECTION 4.2. ALTERATIONS, IMPROVEMENTS AND ADDITIONS.
(a) Tenant shall furnish, equip and improve the Leased Premises with
partitions, lighting fixtures, wall and floor coverings, paintings and
other interior decoration suitable for a trade mart and of a quality and
design consistent with the standards generally observed by Landlord. Prior
to the commencement of any such work, Tenant shall submit to Landlord for
its written approval, detailed plans and specifications providing for the
initial furnishing, equipping and improving of the Leased Premises. Two (2)
complete sets of final working drawings and specifications of materials
relating to all improvements ("Improvements") that Tenant desires to be
installed in the Leased Premises shall be submitted to Landlord no later
than thirty (30) days after execution of the Lease by both parties. Such
drawings and the specifications of materials shall be subject to approval
by Landlord. Landlord's approval will not be unreasonably withheld.
Landlord shall respond within ten (10) business days, with specific reasons
for any disapproval. Any delay occasioned as a result of Landlord's
reasonable disapproval of Tenant's plans and specifications shall not
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delay the Commencement Date under this Lease. Upon the approval of the
plans and specifications by Landlord, Tenant shall commence to equip,
furnish, and improve the Leased Premises, and shall diligently and
continuously prosecute such work to substantial completion on or before
January 31, 1998. The failure of Tenant to diligently attempt to
substantially complete such work on or before the date specified in the
preceding sentence shall, at the option of Landlord, be an event of default
hereunder. Any further alterations, improvements, or additions to the
Leased Premises (including constructing partitions, installing light
fixtures or painting or changing the color of any painted surface or the
color type of any wall, floor, or ceiling covering which would be visible
from the exterior of the Leased Premises, or any change which would affect,
in any way, the exterior of the Building or the mechanical, electrical, or
plumbing systems within the Building or the structural portions of the
Building) shall likewise require Landlord's prior written approval, which
approval may be granted, withheld, or conditioned as Landlord, in the
exercise of Landlord's sole discretion may determine.
(b) Any and all furnishing, equipping and improving of or other
alteration or addition to the Leased Premises shall be:
(i) made at Tenant's sole cost, risk and expense;
(ii) performed in a prompt, good and workmanlike manner with
labor and materials of such quality as Landlord may reasonably
require;
(iii) constructed in accordance with all plans and specifications
approved in writing by Landlord prior to the commencement of any such
work, provided, however, that Landlord shall have no responsibility
with respect to, nor any liability as a result of, defects or
deficiencies therein;
(iv) prosecuted diligently and continuously to completion and in
such manner so as to minimize interference with the normal business
operations of other tenants in the Building, the performance of
Landlord's obligations under this Lease or any mortgage or ground
lease covering or affecting all or any part of the Building or the
Property (if Landlord has provided a copy of same to Tenant), and any
work being done by contractors engaged by Landlord with respect to or
in connection with the Building; and
(v) performed by contractors approved in writing by Landlord, and
if requested by Landlord any such contractor and all work to be
performed by such contractor shall be fully bonded with companies and
in amounts acceptable to Landlord in its sole discretion.
(c) Any and all alterations, improvements and additions to the Leased
Premises (except for Trade Fixtures as specified in Section 4.4 hereof)
shall constitute a part of the Leased Premises, and shall be owned by and
become the property of Landlord effective as of the termination of this
Lease. Tenant shall have no (and hereby waives all) rights to payment or
compensation for any such alteration, improvement or addition to the Leased
Premises. Notwithstanding the foregoing, Tenant shall have the right to
remove selected items of leasehold improvements only after having obtained
Landlord's written consent prior to installation.
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SECTION 4.3. MAINTENANCE AND REPAIRS. Tenant shall maintain the Leased
Premises, all plate glass and all Trade Fixtures and other improvements situated
therein in first class, clean, and safe condition. Tenant shall repair or
replace any damage to the Building, or any part thereof, caused by Tenant or
Tenant's agents, employees, customers or invitees which is not paid by the
insurance to be maintained by Landlord. All such repair or replacement shall be
performed in accordance with the conditions set forth in Section 4.2.(b) (i),
(ii), (iii), (iv) and (v).
SECTION 4.4. TRADE FIXTURES. Landlord and Tenant agree that all Trade
Fixtures installed in the Leased Premises shall be and remain the property of
Tenant, and so long as Tenant is not in default hereunder, may be removed by
Tenant prior to or upon the expiration of the Lease Term. Tenant shall repair
any damage caused by such removal and restore the Leased Premises to such
condition as existed prior to the installation of such Trade Fixtures. Any such
repair and restoration shall be performed in accordance with the conditions set
forth in Section 4.2(b) (i), (ii), (iii), (iv) or (v). Any Trade Fixtures which
are not removed from the Leased Premises upon cessation of occupancy by Tenant
shall become the property of Landlord. Tenant shall have no (and hereby waives
all) rights to payment or compensation for any such item.
SECTION 4.5. LAWS AND REGULATIONS; BUILDING RULES; INFOMART POLICY
STATEMENT.
(a) Tenant shall comply with all laws, ordinances, rules and
regulations of any governmental authority relating to the use, condition or
occupancy of the Leased Premises or the Building, including the furnishing,
equipping and improving thereof. Nothing contained in this Section 4.5 (a)
shall be construed as requiring Tenant to make structural alterations to
any portion of the Leased Premises or the Building unless the need for such
structural alterations are caused by Tenant.
(b) Tenant shall, and shall cause its employees, agents, customers and
invitees to comply with the Building Rules adopted and altered by Landlord
from time to time provided, however, alterations, revision or additions to
the Building Rules shall not unreasonably interfere with Tenant's conduct
of its Permitted Use and shall not impose unreasonable additional costs on
Tenant. All changes in such rules will be sent by Landlord to Tenant in
writing.
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(c) Landlord has prepared a policy statement with respect to the
operation of the Building attached hereto as Exhibit "D" which may from
time to time be amended, revised or supplemental at Landlord's sole
discretion (the "INFOMART Policy Statement"). Tenant shall be responsible
for conducting its operations within the Leased Premises and the Building
in compliance with the INFOMART Policy Statement. The failure of the
Landlord to successfully enforce any provisions of the INFOMART Policy
Statement against Tenant, or against any other tenant or occupant of the
Building, shall not be deemed to be a waiver of the requirements of the
INFOMART Policy Statement. Landlord shall not be responsible to Tenant for
nonperformance by any other tenant or occupant of the Building of any of
the requirements of the Building Rules or the INFOMART Policy Statement;
and Tenant shall be liable for all injuries or damages sustained by
Landlord or Landlord's agents or by other tenants, occupants, or invitees
of the Building arising by reason of any breach of the requirements of the
Building Rules or the INFOMART Policy Statement by Tenant or Tenant's
agents, employees or invitees. Provided, however, alterations, revision or
additions to the INFOMART Policy Statement shall not unreasonably interfere
with Tenant's conduct of its Permitted Use and shall not impose
unreasonable additional costs on Tenant.
SECTION 4.6. LANDLORD'S ACCESS. Landlord and its representatives, agents,
officers and contractors shall have the right to enter upon the Leased Premises
at any reasonable time for any reasonable purpose, at any time for any
emergency, and if a default by Tenant exists hereunder, at any time to show the
Leased Premises to prospective tenants. Landlord agrees that to the extent
possible it will not unreasonably interfere with the conduct of Tenant's
business in the exercise of its rights hereunder.
SECTION 4.7. ASSIGNMENT AND SUBLETTING BY TENANT.
(a) GENERAL PROHIBITION. Except as specifically provided in this
Section 4.7, Tenant shall not, by operation of law or otherwise, (i)
assign, pledge, hypothecate, mortgage, encumber, or otherwise transfer
this Lease, the Leased Premises, or any interest therein, (ii) grant any
concession or license within the Leased Premises, (iii) grant any
concession or license within the Leased Premises, (iv) sublet all or any
part of the Leased Premises or any right or privilege appurtenant to the
Leased Premises, or (v) permit any other party to occupy or use all or any
part of the Leased Premises. Subject to the foregoing, the rights and
obligations of the parties to this Lease shall inure to the benefit of and
be binding upon their respective successors, assigns, and legal
representatives.
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(b) ASSIGNMENT TO SUCCESSOR OR RELATED PARTY. Notwithstanding the
general prohibition contained in Subsection (a) of this Section 4.7, Tenant
may assign its interest in this Lease to a qualified "Affiliate" or
"Successor Entity" (as those terms are defined below), provided that (i)
any such assignee assumes, in full, the obligations of Tenant under this
Lease, (ii) any such assignee's business operations are consistent with the
Permitted Use and are comparable and compatible with the business
operations of other tenants of the Building, (iii) the occupancy of the
Leased Premises by the assignee would not increase fire hazards, require
substantial alteration to the Leased Premises which would affect the
structural portion of or the mechanical, electrical, or plumbing systems in
the Building or which would be at any cost or expense to Landlord, reduce
the rental value of space within the Building, or adversely affect the
reputation or image of the Building, and, (iv) such Affiliate is
"Creditworthy" (as defined below). In the event of an assignment to a
qualified Affiliate, Tenant shall remain liable for all of its obligations
under this Lease. In the event of an assignment to a qualified Successor
Entity, Tenant shall have no further obligations under this Lease. As used
herein, the term "Affiliate" shall mean both (i) an affiliate as that term
is defined in Rule 144 promulgated by the Securities and Exchange
Commission ("SEC") and (ii) any related party under Item 404 of SEC
Regulation S-K. As used herein, the term "Successor Entity" shall mean a
corporation or other business entity into which or with which Tenant shall
be merged or consolidated or to which all or substantially all of the
assets of Tenant shall be transferred.
(c) SUBLEASE TO AFFILIATE. Notwithstanding the general prohibition
contained in Subsection (a) of this Section 4.7, Tenant may sublet all or a
portion of the Leased Premises to a qualified Affiliate, provided that (i)
any such subtenant agrees in writing to be bound by the terms and
provisions of this Lease, (ii) such subtenant's business operations are
consistent with the Permitted Use and are comparable to and compatible with
the business operations of other tenants of the Building, (iii) the
occupancy of the applicable portion of the Leased Premises by the subtenant
would not increase fire hazards, require substantial alterations to the
Leased Premises, or applicable portion thereof, which would affect the
structural portion of or the mechanical, electrical, or plumbing systems of
the Building, or which would be at any cost or expense to Landlord, reduce
the rental value of space within the Building, or adversely affect the
reputation or image of the Building, and (iv) such subtenant is
"Creditworthy". No such sublease shall operate to release Tenant from its
obligations under this Lease.
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(d) ASSIGNMENT OR SUBLETTING TO UNRELATED THIRD-PARTY. Notwithstanding
the prohibition contained in Subsection (a) of this Section 4.7, Landlord
shall not withhold its consent without reasonable cause in connection with
the assignment of this Lease or the subletting of any portion of the Leased
Premises by Tenant to a qualified unrelated third-party if (i) rental is to
be at not less than the Prevailing Market Rate for comparable space within
the Building, (ii) Landlord receives evidence satisfactory to Landlord that
such proposed third-party is "Creditworthy", (iii) Landlord receives
evidence satisfactory to Landlord that the proposed assignee or subtenant
will promptly occupy and thereafter use the Leased Premises, or applicable
portion thereof, in accordance with the Permitted Use for the remainder of
the Lease Term, or for the entire term of any sublease, if such expires
prior to the expiration of the Lease Term, (iii) the business of the
proposed assignee or subtenant is comparable to and consistent with the
business conducted by other tenants of the Building, and (iv) the occupancy
of the Leased Premises, or a portion thereof by the proposed third-party
would not increase fire hazards, require substantial alterations by Tenant
to the Leased Premises or applicable portion thereof, which would affect
the structural portions of or the mechanical, electrical, or plumbing
systems in the Building, or which would be at any cost or expense to
Landlord, reduce the rental value of the Building, or adversely affect the
reputation and image of the Building. There are no circumstances in which
Tenant shall have the right, without first obtaining Landlord's prior
written consent, to advertise or engage in any other promotional activities
regarding an assignment of this Lease or a subletting of all or any portion
of the Leased Premises. Neither the consent by the Landlord to any such
assignment or sublease nor the collection by Landlord of rents from any
such assignee or sublessee shall be construed as a release by Landlord of
Tenant from Tenant's obligations hereunder. Notwithstanding the foregoing
provisions of this Section 4.7(d), Tenant shall not make any attempt to
assign or sublet to any then current tenant of the Building or to any then
current prospective tenant of the Building. In order to effectuate the
intent of this prohibition, Tenant shall, prior to commencing its efforts
relative to any assignment or subletting to a third-party, notify Landlord
of its intent in writing to do so. Within five (5) business days of
Landlord's receipt of such notice from Tenant, Landlord shall provide
Tenant with a list of the then current tenants of the Building and of the
then current prospects (which shall be those persons and entities with whom
Landlord has had written contact relative to the leasing of space within
the Building within the immediately prior six [6] month period). Tenant's
breach of this prohibition shall constitute reasonable cause for Landlord
to deny approval of a proposed assignment or sublease with any such
existing tenant or prospective tenant.
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(e) REPUTATION OR IMAGE OF THE BUILDING. With respect to the
reputation or image of the Building, Landlord may reasonably withhold its
consent, among other reasons, to an assignment or sublease to a party which
is majority owned or controlled by a foreign corporation, primarily
involved in lobbying activities, involved, in whole or in part, in a
sexually oriented business, or reputed to be involved in illegal or illicit
activities.
(f) CREDITWORTHY. As used in this Section 4.7, the term "Creditworthy"
shall mean that such proposed subtenant or assignee has a then current net
worth of not less than Fifty Million and No/100 Dollars ($50,000,000.00).
(g) COLLATERAL ASSIGNMENT. Notwithstanding the general prohibition
contained at Section 4.7 of this Lease, Tenant may mortgage, pledge,
encumber, or make a collateral assignment of this Lease, without the
necessity of first obtaining Landlord's prior written consent provided that
(i) Tenant's transferee shall not, upon the exercise of any of its rights
relative to the Lease or the Leased Premises, have the right to exercise
any expansion option, right of first refusal, renewal option, cancellation
option, or right to use any meeting rooms in the Building, (ii) Landlord
shall have no obligation to provide any notice of any kind whatsoever to
Tenant's transferee (including, without limitation, any notice of default
or notice relative to the exercise of Landlord's rights as the result of
Tenant's default), (iii) Landlord shall have no obligation to grant any
curative rights to Tenant's transferee, (iv) in the event that Landlord
exercises its rights to terminate this Lease or to terminate Tenant's
possession of the Leased Premises as a result of a default by Tenant,
Tenant's transferee shall have no further rights with respect to the Lease
or the Leased Premises. Upon Tenant's request (but not more than twice in
any twelve [12] month period), Landlord will provide Tenant's transferee
with a statement as to whether a payment default then exists under the
Lease. While Landlord shall have no obligation to provide notice of default
or any curative rights to Tenant's transferee, Landlord will accept a cure
of such default by Landlord's transferee, but only if such cure is effected
within the applicable curative period, if any, as provided in this Lease.
(h) GENERAL SUBLEASE TERMS. Except as specifically provided in this
Subsection (h), all cash or other proceeds of any assignment, sale or
sublease of Tenant's interest in this Lease and/or the Leased Premises,
whether consented to by Landlord or not, shall be paid to Landlord
notwithstanding the fact that such proceeds exceed the rents called for
hereunder, unless Landlord agrees to the contrary in writing, and Tenant
hereby assigns all rights it might have or ever acquire in any such
proceeds to Landlord. This covenant and assignment shall benefit Landlord
and its successors in ownership of the Building and shall bind Tenant,
Tenant's heirs, executors, administrators, personal representatives,
successors and assigns. Any assignee, sublessee, or purchaser of Tenant's
interest in this Lease (all such assignees, sublessees or purchasers being
hereinafter referred to as "Successors"), by occupying the Leased Premises
and/or assuming Tenant's obligations hereunder, shall be deemed to have
assumed liability to Landlord for all amounts paid to persons other than
Landlord by such Successor in consideration of any such sale, assignment or
subletting, in violation of the provision hereof. The acceptance by
Landlord of any rent from any sublessee or assignee of Tenant shall not
constitute Landlord's consent to such assignment or sublease.
Notwithstanding the foregoing, Tenant will be allowed to recover the actual
out-of-pocket costs incurred by Tenant in connection with such assignment
or subletting, but such recovery shall be on a prorated basis over the
entire period of such sublease for the remainder of the Lease Term with
respect to an assignment, but such right to recover its expenses shall be
in effect only so long as that assignee or subtenant is actually paying
rent.
SECTION 4.8. LIGHT, AIR AND VIEW. Neither the diminution nor the shutting
off of any natural light, air, or view nor any other effect on the Leased
Premises by any structure or condition now or hereafter existing on property
adjacent to the Building shall affect this Lease, abate rent, or otherwise
impose any liability on Landlord.
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SECTION 4.9. TAXES. Tenant shall pay all ad valorem and similar taxes or
assessments levied upon or applicable to any of Tenant's Trade Fixtures or any
other improvements, equipment, fixtures, furniture or other property situated in
the Leased Premises and all license and other fees or charge imposed on the
business conducted by Tenant on the Leased Premises. Upon request by Landlord,
Tenant will furnish Landlord annually with official tax receipts and other
official receipts showing payment of such taxes, assessments, fees and charges.
If Landlord shall be required to pay a higher ad valorem tax as a result of
Tenant's leasehold improvements, then Tenant shall pay to Landlord, upon demand,
the amount of such increase in ad valorem taxes.
SECTION 4.10. LIENS. Tenant shall not place or permit to be placed any
lien, affidavit, charge or order upon INFOMART, the Building or the Leased
Premises or any part thereof or any interest therein. In the event that any such
lien, affidavit, charge or order attaches, regardless of the validity or
enforceability thereof, Tenant shall immediately cause the same to be discharged
of record. In the event any such lien is attached to the INFOMART, the Leased
Premises or the Building, then in addition to any other right or remedy of
Landlord, Landlord may but shall not be obligated to discharge the same. Any
amount paid by Landlord for any of the aforesaid purposes shall be paid by the
Tenant to Landlord on demand as additional rent.
SECTION 4.11. SUBORDINATION TO MORTGAGES AND LEASES. There are presently no
ground or underlying leases or liens of any mortgages affecting the Building,
the Leased Premises, or the Property. Provided that Landlord obtains the
non-disturbance agreement from a future lender as described below, then this
Lease shall be subject and subordinate at all times to (a) all ground or
underlying leases now existing or which may hereinafter be executed affecting
the Building, the Leased Premises and/or the Property (b) the lien or liens of
all mortgages and deeds of trust in any amount or amounts whatsoever now or
hereafter placed on the Building, the Leased Premises and/or the Property or
Landlord's interest or estate therein or on or against such ground or underlying
leases and (c) all renewals, modifications, consolidations, replacements and
extensions thereof. The subordinations set forth herein shall be self-operative
and effective without the necessity of execution of any further instruments by
any party; provided, however, Tenant shall execute and deliver upon demand by
Landlord any instruments, releases or other documents requested by any lessor or
mortgagee and reasonably acceptable to Tenant for the purpose of confirming the
provisions hereof or further subjecting and subordinating this Lease to any such
ground lease, mortgage or deed of trust. In the event of the enforcement by the
trustee or the beneficiary under any such mortgage or deed of trust, of the
remedies provided for by law or by such mortgage or deed of trust, upon request
of any person or party succeeding to the interest of Landlord as a result of
such enforcement, Tenant will automatically become the Tenant of such successor
in interest without change in the terms or provisions of this Lease; provided,
however, that such successor in interest shall not be bound by (i) any payment
of rent or additional rent for more than one month in advance except prepayments
actually delivered to such successor in the nature of security for the
performance by Tenant of its obligations under this Lease, (ii) any payment of
the
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security deposit or any other deposit unless such security deposit or other
deposit has actually been delivered to such successor or (iii) any amendment or
modification of this Lease made without the written consent of such trustee or
such beneficiary or such successor in interest, and Tenant shall execute and
deliver an instrument or instruments confirming the attornment and other
agreements provided for herein. Further, notwithstanding anything contained in
this Lease to the contrary, in the event of any default by Landlord in the
performance of its covenants or obligations hereunder which would give Tenant
the right to terminate this Lease, Tenant shall not exercise such right unless
and until (i) Tenant gives written notice of such default (which notice shall
specify the exact nature of said default and the steps necessary to cure same)
to the holder of any mortgage or deed of trust encumbering the Building, the
Leased Premises and/or the Property who has theretofore notified Tenant in
writing of its interest and the address to which notices are to be sent, and
(ii) such holder, upon becoming entitled to do so, through foreclosure of its
lien, or accepting a deed in lieu of foreclosure, or otherwise, fails to cure or
cause to be cured such default within thirty (30) days from the later of the
receipt of such notice from Tenant or its becoming entitled to do so, or, if
such default relates to a condition which cannot reasonably be cured within such
period, such holder commences to cure within such period and thereafter
diligently prosecutes the completion of such cure. Landlord shall, in the event
that a mortgage or deed of trust lien is placed upon the Property and/or the
Building, utilize reasonable efforts to obtain a non-disturbance agreement from
the holder thereof with respect to Tenant's leasehold interests under the Lease,
which non-disturbance agreement shall be deemed to be sufficient if it contains
substantially the content of the form of Subordination, Non-Disturbance and
Attornment Agreement attached hereto as Exhibit "I" and incorporated herein by
reference for all purposes.
SECTION 4.12. CERTIFICATES. At any time and from time to time during the
Lease Term, within fifteen (15) days after written request by Landlord, Tenant
will execute, acknowledge and deliver to Landlord and any other persons
specified by Landlord a certificate certifying to the extent true (i) that this
Lease is in full force and effect, (ii) the date and nature of each modification
to this Lease , (iii) the date to which rental and other sums payable to this
Lease have been paid, (iv) that Tenant is not aware of any default under this
Lease which has not been cured, except such defaults as may be specified in said
certificate, and (v) such other matters as may be reasonably requested by
Landlord. Any such certificate may be relied upon by Landlord and by any other
person to whom it is delivered for such purpose.
SECTION 4.13. LIMITATION ON WEIGHT. Tenant shall not permit upon the floor
of the Leased Premises any weight exceeding seventy-five (75) pounds per square
foot of floor area.
ARTICLE 5
SECTION 5.1. CONDEMNATION. If all of the Building, or the whole or
substantially the whole of the Property (including surface and covered parking
associated with the Building) or the Leased Premises should be taken for any
public or quasi-public use, by right of eminent domain or otherwise or should be
sold in lieu of condemnation, then this Lease shall terminate as of the date
when physical possession of the Building, or the Leased Premises, or the
Property is taken by the condemning authority. If less than the whole of the
Building or less than the whole or
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substantially the whole of the Property (including surface and covered parking
associated therewith) or the Leased Premises is thus taken or sold, Landlord
(whether or not the Leased Premises are affected thereby) may terminate this
Lease by giving written notice thereof to Tenant; in which event this Lease
shall terminate as of the date when physical possession of such portion of the
Building, Property, or Leased Premises is taken by the condemning authority. If
(i) in excess of ten percent (10%) of the Leased premises are thus taken or
sold, (ii) such taking results a lack of adequate access to the Leased Premises
(including a termination of elevator services to the Leased Premises), or (iii)
such taking relates to the parking areas of the Property and results in such
parking areas not containing sufficient parking spaces to comply with applicable
building codes, the Tenant may, by written notice to Landlord, terminate this
Lease, in which event this Lease will terminate as of the date when physical
possession of such portion of the Building, the Property, or the Leased Premises
is taken by the condemning authority. The failure of Tenant to exercise such
termination option within thirty (30) days after Tenant has notice of such
taking shall be deemed to be an irrevocable waiver of such termination right. If
this Lease is not so terminated upon any such taking or sale, the Base Rental
payable hereunder shall be diminished by a prorata amount representing that
portion of the Base Rental allocable to the portion, if any, of the Leased
Premises subject to such taking, and Landlord shall, to the extent Landlord
deems feasible, restore the Building shell to substantially their former
condition, but such work shall not exceed the scope of the work done by Landlord
in originally constructing the Building, nor shall Landlord in any event be
required to spend for such work an amount in excess of the amount received by
Landlord as compensation for such taking. All amounts awarded upon a taking of
any part or all of the Property, the Building or the Leased Premises shall
belong to Landlord, but Tenant may claim any compensation from the applicable
governmental authority for damages suffered by Tenant as a result of such taking
to which Tenant is entitled relative to Tenant's leasehold improvements in the
Leased Premises only if and to the extent that Tenant's claim does not adversely
affect the amount or period of recovery with respect to Landlord's award.
SECTION 5.2. CASUALTY DAMAGE. If the Leased Premises or any part thereof
shall be damaged by fire or other casualty, Tenant shall give prompt written
notice thereof to Landlord. In the event that any portion of the Building is
damaged by fire or other casualty and if (a) Landlord, in Landlord's sole
judgment, elects not to repair or rebuild such damaged areas, (b) any mortgagee
of Landlord should require that the insurance proceeds payable as a result of
that casualty be applied to the payment of the mortgaged debt, (c) the
occurrence of any material uninsured loss to the Building, or (d) less than one
(1) year remains in the Lease Term at the time of that casualty, then Landlord,
at Landlord's sole option, shall have the right to terminate this Lease
(regardless of whether the Leased Premises are affected by such casualty) by
notifying Tenant in writing of such termination within ninety (90) days after
the date of that casualty. In such event, all rent owed up to the time of
termination by Landlord, as defined above, shall be paid by Tenant to Landlord;
and
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this Lease shall cease and come to an end effective as of the date of such
termination. If Landlord does not elect to terminate this Lease as the result of
such casualty, then Landlord shall provide written notice of Landlord's election
to restore the Building within ninety (90) days from the date of that casualty
and, in that notice, advise Tenant of Landlord's estimate of the time which will
be required for Landlord to complete such restoration. In the event that (a) the
Leased Premises are rendered untenantable by fire or other casualty which is not
caused by the fault or neglect of Tenant or any Affiliate of Tenant, (b) such
damage is such that Landlord cannot reasonably be expected to substantially
complete the repairs within the Leased Premises which are within "Landlord's
Restoration Obligations" (as defined below) within two hundred forty (240) days
after the date of that casualty or less than one (1) year remains in the Lease
Term at the time of that casualty, and (c) Landlord has not terminated this
Lease, then Tenant shall have the right to terminate this Lease by delivering
written notice to Landlord within thirty (30) days after receipt of written
notice of Landlord's estimate of the time to complete "Landlord's Restoration
Obligations" relative to the Leased Premises. If Tenant does not provide
Landlord with notice of Tenant's termination election in the manner and within
the time period specified in the preceding sentence, then Tenant shall be deemed
to have irrevocably waived its right to terminate this Lease as the result of
such casualty; and Landlord, in reliance upon Tenant's waiver of its termination
right, shall proceed to make the repairs which are within "Landlord's
Restoration Obligations". During any period of reconstruction or repair of the
Leased Premises, Tenant shall continue the operation of Tenant's business within
the Leased Premises to the extent reasonably practicable. During the period from
the occurrence of the casualty which was not caused, in whole or in part, by
Tenant or any Affiliate, assignee or subtenant of Tenant, until the completion
of Tenant's work which is necessary to render the Leased Premises tenantable,
Base Rental shall be reduced to the extent that the Leased Premises are unfit
for the conduct of Tenant's Permitted Use of the Leased Premises. If, however,
the Leased Premises or any portion of the Building is damaged by fire or other
casualty resulting from default or negligence of Tenant or any Affiliate,
assignee or subtenant of Tenant, the Base Rental shall not be reduced during the
repair of such damage. If neither Landlord nor Tenant elects, or has the right
to elect, to terminate this Lease as the result of such casualty, then Landlord
shall commence and proceed with reasonable diligence to restore the Leased
Premises to the extent of "Landlord's Restoration Obligations". When the repairs
described in the preceding sentence have been completed by Landlord, Tenant
shall then complete the restoration of all leasehold improvements within the
Leased Premises which are necessary to permit Tenant to reoccupy the Leased
Premises for the Permitted Use within one hundred and eighty (180) days after
the completion of "Landlord's Restoration Obligations" and the delivery of the
Leased Premises by Landlord to Tenant. Tenant's restoration work shall be
conducted in accordance with the provision of Section 4.2 above. In no event
shall Landlord have the obligation to expend for the restoration or repair of
the Building an amount in excess of the insurance proceeds actually received by
Landlord as the result of such casualty; and except for those repairs which are
within "Landlord's Restoration Obligations", all costs and expenses of restoring
the Leased Premises shall be borne by Tenant. Landlord shall not be liable for
any inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting in any way from any casualty or the repair or restoration work made
necessary by the occurrence of any casualty. As used in this Section 5.2, the
work "untenantable" shall mean that Tenant is unable to conduct business in the
Leased Premises in the manner reasonably comparable to that conducted
immediately before the applicable occurrence (including, for such purpose, any
material limitation on Tenant's access to the Leased Premises). As used in this
Section 5.2, the term "Landlord's Restoration Obligations" shall mean that the
Building shell and public areas of the Building shall be restored to a condition
comparable to their condition immediately prior to such casualty and the
restoration of Tenant's Leased Premises to the same condition as Suite 6055
within the Building existed on the Commencement Date.
SECTION 5.3. INSURANCE.
(a) Landlord shall not be obligated to insure any of Tenant's goods,
Trade Fixtures, furniture or any other property placed in or incorporated
in the Leased Premises or the Building.
(b) Tenant shall, at its sole cost and expense, procure and maintain
during the Lease Term, comprehensive general liability insurance, (such
insurance to afford minimum protection of not less than $5,000,000.00
combined single limit coverage of bodily injury, property damage or
combination thereof) comprehensive general liability insurance, property
insurance with respect to Tenant's personal property, inventory and
leasehold improvements written on an all "All Risk" basis for full
replacement cost, worker's compensation and employer's liability insurance,
comprehensive catastrophe liability insurance and such other insurance as
Landlord may, from time to time, reasonably require. In addition, Tenant
agrees to obtain a fire legal
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liability endorsement or other coverage satisfactory to Landlord which
removes the "owned, rented or occupied" property exclusion from Tenant's
liability policy. All such insurance shall be maintained by companies on
forms and in amounts approved by Landlord.
(c) In the event that Tenant fails to take out or maintain any policy
required by this Article to be maintained by Tenant, such failure shall be
a defense to any claim asserted by Tenant against Landlord by reason of any
loss sustained by Tenant that would have been covered by such policy.
(d) All policies of insurance required to be maintained by Tenant
shall provide that the Landlord shall be given at least thirty (30) days
prior written notice of any cancellation or non-renewal of any such policy.
A duplicate original of each such policy or a duly executed certificate of
insurance with respect to each such policy shall be deposited with Landlord
by Tenant on or before the Commencement Date, and a duplicate original of
each subsequent policy or a duly executed certificate of insurance with
respect to each subsequent policy shall be deposited with Landlord at least
fifteen (15) days prior to the expiration of the policy then in force.
(e) Tenant shall not do or permit anything to be done in the Building
or about the Leased Premises nor bring nor keep nor permit anything to be
brought to or kept therein, which will in any way increase the existing
rate of or affect any fire or other insurance which Landlord carries upon
any part of the Building or any of its contents, or cause a cancellation or
invalidation of any such insurance. If the annual premiums to be paid by
Landlord with respect to any insurance obtained by Landlord covering any
part of the Building or any of its contents shall exceed the standard rates
because of Tenant's operations, or contents of the Leased Premises or
because improvements with respect to the Leased Premises result in
extra-hazardous exposure, Landlord shall have the further right,
exercisable in Landlord's sole discretion, to terminate this Lease by
giving written notice of such election to Tenant.
(f) Subject to the conditions hereinafter specified in this Subsection
(f) and only to the extent that and so long as the same is permitted under
the laws and regulations governing the writing of insurance within the
State of Texas with respect to the respective insurance that is to be
carried by either Landlord or Tenant covering losses arising out of the
destruction or damage to the Leased Premises or its contents or to other
portions of the Building or to Tenant's occupancy and operation of the
Leased Premises without invalidating or nullifying any such policy, or
providing a defense to the applicable insurance carrier with respect to the
coverage of any such policy, all such insurance carried by either Landlord
or Tenant shall provide for a waiver of rights of subrogation against
Landlord and Tenant on the part of the insurance carrier. Except in the
event that such waivers contemplated by this sentence will invalidate,
nullify, or provide a defense to coverage under any such insurance policy
or are not obtainable for the reasons described in this Subsection (f),
Landlord and Tenant each hereby waive any and all rights of recovery,
claims, actions or causes of action against the other, its agents,
officers, or employees, or any loss or damage that may occur to the Leased
Premises or the Building, or any improvements thereto, which loss or damage
is covered by valid and collectible insurance policies, to the extent that
such loss and damage is recoverable under such insurance policy. The
waivers set forth in the immediately preceding sentence shall be in
addition, and not substitution for, any other waivers, indemnities, or
exclusions of liabilities as set forth in this Lease, including, without
limitation, Sections 5.5 and 5.6 of the Lease.
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SECTION 5.4. SURRENDER OF LEASED PREMISES. Upon termination of this Lease
or Tenant's right to possession of the Leased Premises, Tenant shall peaceably
and quietly surrender the Leased Premises to Landlord, broom-clean and in a good
state of repair and condition, excepting only ordinary wear and tear and
casualty not caused by Tenant or any Affiliate, assignee or subtenant of Tenant.
Upon request of Landlord, Tenant shall demolish or remove all or any portion of
any Trade Fixtures and other property or the making of any such alteration,
improvement, addition or changes to the Leased Premises made by Tenant which
Landlord, in Landlord's written consent to the installation thereof, has
specified are to be removed, and restore the Leased Premises to such condition
as existed prior to the installation of such Trade Fixtures or other property or
the making of any such alteration, improvement, addition or change. All such
demolition, removal and restoration shall be performed in accordance with the
conditions set forth in Section 4.2(b). Upon termination of this Lease, Tenant
will also surrender to Landlord all keys to the Leased Premises and inform
Landlord of all combinations on locks, safe, and vaults, if any, at the Leased
Premises.
SECTION 5.5. DAMAGES FROM CERTAIN CAUSES. Landlord and Landlord's agents
and employees shall not be liable or responsible to Tenant or any person
claiming through Tenant for any loss or damage or injury to business or to any
property or person in, upon or about the Leased Premises or any other portion of
the Building arising at any time from any cause, negligent or otherwise, other
than by reason of the gross negligence or willful misconduct of Landlord or of
Landlord's employees or agents acting within the scope of their employment or
authority.
SECTION 5.6. HOLD HARMLESS. Landlord shall not be liable to Tenant, or to
Tenant's agents, employees, contractors, customers or invitees or to any other
person whomsoever for any injury or damage to person or property caused by or
arising out of an act, omission or neglect of Tenant, its agents, contractors,
subtenants, employees, customers, licensees, concessionaires or invitees or any
other person entering the Building under express or implied invitation of Tenant
or other tenants of the Building.
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ARTICLE 6
SECTION 6.1. DEFAULT BY TENANT. The occurrence of any one or more of the
following events shall constitute a default by Tenant under this Lease:
(a) Failure of the Tenant to pay rent or any other amount due under
this Lease as and when due and payable;
(b) Failure of the Tenant to perform, observe, or comply with or
default under any of the terms, covenants, conditions or provisions
contained in Section 4.1 of this Lease;
(c) Failure of the Tenant to perform, observe, or comply with or
default under any of the terms, covenants, conditions or provisions
contained in this Lease (other than covenants to pay rent, or the covenants
set forth in Section 4.1 of this Lease;
(d) The interest of Tenant under this Lease shall be levied on under
execution or other legal process;
(e) Any petition in bankruptcy or other insolvency proceedings shall
be filed by or against Tenant, or any petition shall be filed or other
action taken to declare Tenant a bankrupt or to delay, reduce or modify
Tenant's debts or obligations or to reorganize or modify Tenant's capital
structure or indebtedness or to appoint a trustee, receiver or liquidator
of Tenant or of any property of Tenant, or any proceeding or other action
shall be commenced or taken by any governmental authority for the
dissolution or liquidation of Tenant;
(f) Tenant shall become insolvent, or Tenant shall make an assignment
for the benefit of creditors, or Tenant shall make a transfer in fraud of
creditors, or a receiver or trustee shall be appointed for Tenant or any of
its properties;
(g) Tenant shall abandon or vacate the Leased Premises or any
substantial portion thereof;
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(h) Tenant shall do or permit to be done anything which creates or
causes to be filed a lien, security interest or other encumbrance (whether
consensual or created by operation of law or otherwise) against all or any
part of the Leased Premises, the Building or any property situated therein
or Tenant's interest in this Lease; or
(i) The termination, dissolution or liquidation of Tenant, if Tenant
is a corporation, partnership, or other entity, provided, however, that the
merger of Tenant into another entity or the termination, dissolution, or
liquidation of Tenant in connection with the sale of all or substantially
all of the assets of Tenant to an entity which assumes the obligations of
Tenant under this Lease and which has a net worth comparable to that of
Tenant on the date of the execution of this Lease, will not be a default
hereunder.
SECTION 6.2. LANDLORD'S REMEDIES. In the event that Tenant's default is a
payment default described in Section 6.1(a), Landlord shall allow Tenant a
curative period of ten (10) days following written notice, and Landlord's
obligation to provide notice prior to exercising a remedy hereunder, and
Tenant's right to a curative period with respect to such default, will be
limited to two (2) notices in any twelve month period. In the event that
Tenant's default relates to the event described in Section 6.1(b), the Landlord
shall allow Tenant a curative period of fifteen (15) days after written notice
prior to exercising any remedy hereunder. In the event that Tenant's default
relates to a matter described in Section 6.1(c), then Landlord shall allow
Tenant fifteen (15) calendar days within which to cure such default to
Landlord's satisfaction after Landlord has given Tenant written notice thereof
and, if such condition cannot reasonably be cured with such fifteen (15) day
period, the curative period shall be extended up to a maximum of sixty (60) days
from the date of Landlord's original notice, provided that (i) Tenant commenced
to cure such default within such original fifteen (15) day period and (ii)
Tenant has thereafter diligently and continuously prosecuted such cure. In the
event that Tenant's default relates to a matter described in Section 6.1(e),
then Landlord shall allow Tenant a curative period of sixty (60) days after the
date of filing in order to obtain the dismissal of such proceeding. In the event
that Tenant's default relates to a matter described in Section 6.1(h), then
Landlord shall allow Tenant a curative period of fifteen (15) days in which to
cause the removal or discharge of such lien. Upon the occurrence of any default
by Tenant under this Lease and after the expiration of any applicable curative
period, Landlord may, at its sole option, do any one or more of the following,
without any further notice or demand for possession whatsoever, and Tenant
hereby waives any and all notice and demand requirements imposed by applicable
law:
(a) Terminate this Lease, whereupon Landlord shall have the remedies
set forth in Section 6.3 below;
(b) Without having terminated this Lease, enter upon and take
possession of the Leased Premises, whereupon Landlord shall have the
remedies set forth in Section 6.4 below; or
(c) Upon Tenant's failure to perform, observe or comply with the
covenants set forth in Sections 2.2, 4.1, or 4.7 of this Lease, Landlord
may, without terminating this Lease and without taking possession of the
Leased Premises, collect from Tenant, in addition to any rent payable by
Tenant to Landlord under this Lease, as liquidated damages, a sum equal to
twice the Base Rental (computed on a daily basis) for each day or any
portion thereof that such default by Tenant continues, Landlord and Tenant
agreeing that actual damages which might be sustained by Landlord by reason
of such failure are uncertain and difficult to ascertain and that said sum
would be reasonable and just compensation for such failure.
SECTION 6.3. TERMINATION OF LEASE. Upon termination of this Lease by
Landlord, pursuant to Section 6.2(a), Landlord may forthwith repossess the
Leased Premises and be entitled to recover as damages a sum of money equal to
the total of (i) the cost of recovering the Leased Premises, (ii) the cost of
removing and storing Tenant's or any other occupant's property, (iii) the unpaid
rent accrued at the date of termination, and (iv) any other sum of money or
damages that may be owed to Landlord as the result of the exercise of Landlord's
rights at law or in equity.
SECTION 6.4. TERMINATION OF POSSESSION. Upon termination of Tenant's right
of possession to the Leased Premises pursuant to Section 6.2(b), Landlord may
repossess the Leased Premises by forcible entry or detainer suit or otherwise,
without further demand or notice of any kind to Tenant and without terminating
this Lease, in which event Landlord may (but shall not be obligated to) relet
the same for the account of Tenant for such rent and upon such terms as shall
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be satisfactory to Landlord. In such event, Tenant shall be liable for and shall
pay to Landlord all rent payable by Tenant under this Lease as and when due plus
an amount equal to (i) the cost of recovering possession, (ii) the cost repairs,
changes, alterations and additions to the Leased Premises, (iii) the cost of
collection of the rent accruing from such reletting, and (iv) any other costs
incurred by Landlord in connection with any such reletting, reduced by any sums
received by Landlord through reletting the Leased Premises; provided, however,
that in no event shall Tenant be entitled to any excess of any sums obtained by
reletting over and above rent provided in this Lease to be paid by Tenant to
Landlord. For the purpose of such reletting, Landlord is authorized to make any
repairs, changes, alterations or additions in or to the Leased Premises that
Landlord may deem necessary or advisable. Landlord may file suit to recover any
sums falling due under the terms of this Section from time to time, and no
delivery to or recovery by Landlord of any portion due Landlord hereunder shall
be any defense in any action to recover any amount not theretofore reduced to
judgment in favor of Landlord. No reletting shall be construed as an election on
the part of Landlord to terminate this Lease unless a written notice of such
intention is given to Tenant by Landlord. Notwithstanding any such reletting
without termination, Landlord may at any time thereafter elect to terminate this
Lease for such previous default. Landlord shall use reasonable efforts to relet
the Leased Premises on such terms and conditions as Landlord, in Landlord's sole
discretion, may determine (including, without limitation, a term different from
the Lease Term, rental concessions, and alterations to and improvements of the
Leased Premises); but Landlord shall never be obligated to relet the Leased
Premises before leasing other rentable areas within the Building, it being the
intent of the parties that Tenant shall not be placed in a preferential position
by reason of Tenant's own default. Any sums received by Landlord through
reletting shall reduce the sums owing by Tenant to Landlord, but Tenant shall
not be entitled to any excess of any sums obtained by reletting over and above
the Base Rental provided in this Lease under any circumstances. For the purpose
of such reletting, Landlord is authorized to make any repairs, changes,
alterations, or additions in and to the Leased Premises that Landlord may deem
necessary or advisable. No reletting shall be construed as an election on the
part of Landlord to terminate this Lease unless a written notice of such
intention is given to Tenant by Landlord. Notwithstanding any such reletting
without termination, Landlord may, at any time thereafter, elect to terminate
this Lease for such previous default.
SECTION 6.5. LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS. Should
Tenant fail to perform any of its obligations hereunder and such breach is not
cured by Tenant after Tenant's receipt of written notice from Landlord and
within the time periods specified in Section 6.1(d) above, Landlord may (but
shall not be obligated to), enter upon the Leased Premises and perform all or
any part of such obligations. Upon demand, Tenant shall reimburse Landlord for
the cost to Landlord of performing such obligations plus profit and overhead in
an amount equal to fifteen percent (15%) of such cost. No action taken by
Landlord under this Section shall relieve Tenant from any of its obligations
under this Lease or from any consequences or liabilities arising from the
failure to perform such obligations.
SECTION 6.6. CUMULATIVE REMEDIES. The rights and remedies of Landlord or
Tenant under this Article shall be non-exclusive and shall be in addition to and
cumulative of all other remedies available to Landlord or Tenant under this
Lease or at law or in equity.
SECTION 6.7. LANDLORD'S LIEN. The statutory lien for rent is expressly
waived.
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SECTION 6.8. HOLDING OVER. In the event Tenant remains in possession of the
Leased Premises after the expiration or termination of this Lease without the
execution of a new lease, then Tenant shall be deemed to be occupying the Leased
Premises as a tenant from month to month at a rental equal to 150% of the Base
Rental for the first ninety (90) days and 200% of the Base Rental thereafter and
shall otherwise remain subject to all the conditions, provisions and obligations
of this Lease insofar as the same are applicable to a month to month tenancy. No
holding over by Tenant after the expiration or termination of this Lease shall
be construed to extend the Lease Term or in any other manner be construed as
permission by Landlord to hold over.
SECTION 6.9. SECURITY DEPOSIT. The parties have agreed that no Security
Deposit will be required of Tenant at the outset of this Lease. However, if
Tenant is thirty (30) days late in paying monthly rentals in any two (2)
consecutive months, or if Tenant is thirty (30) days late paying monthly rentals
more than two (2) times in a twelve (12) month period, then Landlord reserves
the right at such time to demand (in writing) that a Security Deposit in the
amount of the monthly rental payments be deposited with Landlord and retained
for the remainder of the Lease Term. Upon default by Tenant, Landlord may, from
time to time, without prejudice to any other remedy, apply such Security Deposit
to the extent necessary to make good any arrears of rental or any other damage,
injury, expense or liability caused by Landlord by reason of default by the
Tenant. After any such application of Security Deposit, Tenant shall, upon
request of Landlord, pay to Landlord the amount so applied so as to restore the
Security Deposit to its original amount. Any remaining balance of the Security
Deposit shall be returned by Landlord to Tenant within a reasonable period of
time after the termination of this Lease. If Landlord transfers its interest in
the Leased Premises during the term of this Lease, Landlord may assign the
Security Deposit to the transferee and thereafter shall have no further
liability for the return of such Security Deposit.
ARTICLE 7
SECTION 7.1. ATTORNEY'S FEES AND OTHER EXPENSES. In the event of the
default by either party hereto in the performance or observance of any of the
terms, agreements or conditions contained in this Lease, the defaulting party
shall be liable for and shall pay the prevailing party all expenses incurred by
the prevailing party in enforcing any of the prevailing party's remedies for any
such default, including, without limitation, the prevailing party's reasonable
attorney's fees.
SECTION 7.2. AMENDMENTS, BINDING EFFECT. This Lease may not be altered,
changed or amended, except by instrument in writing signed by both parties
hereto. No provision of this Lease shall be deemed to have been waived by
Landlord unless such waiver be in writing signed by Landlord and addressed to
Tenant, nor shall any custom or practice which may evolve between the parties in
the administration of the terms hereof be construed to waiver or lessen the
right of Landlord or Tenant to insist upon the performance by the other party in
strict accordance with the terms hereof. The terms and conditions contained in
this Lease shall apply to, inure to the benefit
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of, and be binding upon the parties hereto, and upon their respective successors
in interest and legal representatives, except as otherwise herein expressly
provided.
SECTION 7.3. NON-WAIVER. No course of dealing between Landlord and Tenant
or any other person, nor any delay on the part of Landlord in exercising any
rights under this Lease, nor any failure to enforce any provision of this Lease,
nor the acceptance of rental by Landlord shall operate as a waiver of any rights
of Landlord, except to the extent, if any, expressly waived in writing by
Landlord. The waiver by Landlord of any agreement, condition or provision herein
contained shall not be deemed a waiver of any subsequent breach of the same or
any other agreement, condition or provision herein contained.
SECTION 7.4. NOTICES. Any notice or other communications to Landlord or
Tenant required or permitted to be given under this Lease must be in writing and
shall be effectively given if hand delivered to the addresses for Landlord and
Tenant stated above or if sent by United States Mail, certified or registered,
return receipt requested, to said addresses. Any notice mailed shall be deemed
to have been given three (3) calendar days following the date of deposit of such
item in a depository of the United States Postal Service. Notice effected other
than by mail shall be deemed to have been given at the time of actual delivery.
Either party shall have the right to change its address to which notices shall
thereafter be sent by giving the other written notice thereof.
SECTION 7.5. INTEREST. All amounts of money payable by Tenant to Landlord
under this Lease shall bear interest from the date due until paid at the rate of
prime plus 4%.
SECTION 7.6. MERGER OF ESTATES. The voluntary or other surrender of this
Lease by Tenant or a mutual cancellation thereof, shall not constitute a merger;
and upon such surrender or cancellation of this Lease, Landlord shall have the
option, in Landlord's sole discretion, to (i) either terminate all or any
existing subleases or subtenancies, or (ii) assume Tenant's interest in any or
all subleases or subtenancies.
SECTION 7.7. OTHER TENANTS OF BUILDING. Neither this Lease nor Tenant's
continued occupancy of the Leased Premises is conditioned upon the opening of
any store or business in the Building, nor upon the continued operation of any
such store or business.
SECTION 7.8. CONSENT BY LANDLORD. In all circumstances under this Lease
where the prior consent or permission of Landlord is required before Tenant is
authorized to take any particular type of action, such consent must be in
writing and the matter of whether to grant such consent or permission shall be
within the sole and exclusive judgment and discretion of Landlord, and it shall
not constitute any nature of breach by Landlord under this Lease or any defense
to the performance of any covenant, duty or obligation of Tenant under this
Lease that Landlord delayed or withheld the granting of such consent or
permission.
SECTION 7.9. LEGAL INTERPRETATION. This lease and the rights and
obligations of the parties hereto shall be interpreted construed and enforced in
accordance with the laws of the State
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of Texas and the United States. All obligations of the parties hereto shall be
performable in, and all legal actions to enforce or construe this Lease shall be
instituted in the courts of Dallas County, Texas. The determination that one or
more provisions of this Lease is invalid, void, illegal or unenforceable shall
not affect or invalidate the remainder. All obligations of either party
requiring any performance after the expiration of the Lease Term shall survive
the expiration of the Lease Term and shall be fully enforceable in accordance
with those provisions pertaining thereto. Section titles appearing in this Lease
are for convenient reference only and shall not be used to interpret or limit
the meaning of any provision of this Lease.
SECTION 7.10. ENTIRE AGREEMENT. Tenant agrees that this Lease supersedes
and cancels any and all previous statements, negotiations, arrangements,
brochures, agreements and understandings, if any, between Landlord and Tenant or
displayed by Landlord to Tenant with respect to the subject matter of this
Lease, the Leased Premises or the Building, and that there are no
representations, agreements or warranties (express or implied, oral or written)
between Landlord and Tenant with respect to the subject matter of this Lease,
the Leased Premises or the Building other than contained in this Lease.
SECTION 7.11. ASSIGNMENT BY LANDLORD. Landlord shall have the right at any
time to transfer and assign in whole or in part, by operation of law or
otherwise, its rights, benefits, privileges, duties and obligations hereunder or
in the Property, provided such assignee agrees in writing to be bound by future
obligations under the Lease.
SECTION 7.12. TENANT'S AUTHORITY. Tenant represents and warrants that it
has the full right, power and authority to enter into this Lease and to perform
its obligations hereunder, and that upon execution of this Lease by Tenant, this
Lease shall constitute a valid and legally binding obligation of Tenant. If
Tenant signs as a corporation, each of the persons executing this Lease on
behalf of Tenant does hereby covenant and warrant that Tenant is a duly and
validly existing corporation, that the execution of this Lease by such persons
on behalf of Tenant has been duly authorized by all necessary corporate action
and that Tenant is qualified to do business in the State of Texas. The
undersigned individually represents and warrants that it has full right and
authority to execute this Lease on behalf of Landlord and to grant this Lease on
behalf of Landlord.
SECTION 7.13. LANDLORD'S LIABILITY. Any provisions of this Lease to the
contrary notwithstanding, Tenant hereby agrees that no personal, partnership or
corporate liability of any kind or character whatsoever now attaches or at any
time hereafter under any condition shall attach to Landlord or its partners or
venturers for payment of any amounts payable under this Lease or for the
performance of any obligation under this Lease. Except as specifically provided
in Sections 3.3 and 5.2 of this Lease, the exclusive remedy of Tenant for the
failure of Landlord to perform any of its obligations under this Lease shall be
to proceed against the interest of Landlord in and to the Building. In no event
shall Landlord incur any liability or obligation to Tenant or other person or
entity with respect to any action, omission, or inaction, negligent or
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otherwise, of Landlord, except as such may be due to the gross negligence or
willful misconduct of Landlord.
SECTION 7.14. TIME OF ESSENCE. In all instances where Tenant or Landlord is
required under this Lease to pay any sum or do any act at a particular time or
within a particular period, it is understood that time is of the essence.
SECTION 7.15. INSTRUMENTS AND EVIDENCE REQUIRED TO BE SUBMITTED TO
LANDLORD. Each written instrument and all evidence of the existence or
non-existence of any circumstances or condition which is required by this Lease
to be furnished to Landlord shall in all respects be in form and substance
satisfactory to Landlord, and the duty to furnish such written instrument or
evidence shall not be considered satisfied until Landlord shall have
acknowledged that it is satisfied therewith.
SECTION 7.16. COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but such counterparts shall together constitute one and the same instrument.
SECTION 7.17. GENDER AND NUMBER. The pronouns of any gender shall include
the other gender and either the singular or the plural shall include the other.
SECTION 7.18. RECORDATION. Tenant agrees not to record this Lease or any
instrument to which this Lease may now or hereafter be attached.
ARTICLE 8
SECTION 8.1. FORCE MAJEURE. Except for the payment of Base Rental or any
sums owed by Tenant to Landlord and Tenant's construction obligations under this
Lease, whenever a period of time is herein prescribed for the taking of any
action by Landlord or Tenant, that party shall not be liable or responsible for,
and there shall be excluded from the computation of such period of time, any
delays due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions, or any other cause whatsoever
beyond the control of such party.
SECTION 8.2. COMMISSIONS. Tenant represents and warrants that no broker has
represented it in this lease transaction and that no broker is owed a commission
or fee in connection with the consummation of this lease transaction. Tenant
hereby indemnifies and holds Landlord harmless against any loss, claim, expense
or liability with respect to any commissions or brokerage fees claimed on
account of the execution and/or renewal of this Lease or the expansion of the
Leased Premises hereunder, if applicable, due to any action by the Tenant. The
provisions of this paragraph shall survive the termination of this Lease.
SECTION 8.3. USE OF THE TERM "INFOMART". Tenant shall not use the term
"INFOMART" in any of its activities, including, without limitation, advertising
and marketing activities, without the prior written consent of Landlord. Copies
of all proposed written materials and advertising containing reference to the
term "INFOMART" shall be furnished to Landlord in advance for its review and
written approval. Any permitted use of the term "INFOMART" by Tenant shall
additionally include the phrase "Where Technology Lives" immediately after such
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use. Tenant shall not permit any third-party to use the term "INFOMART" in any
of its activities and shall report to Landlord any unauthorized uses of such
term which comes to its attention. The breach by Tenant of any provisions of
this Section 8.3 shall constitute an event of default under this Lease and shall
entitle Landlord to exercise any right or remedy available to Landlord
hereunder, at law or in equity. Tenant shall indemnify and hold Landlord
harmless from against any loss, cost, claim, liability, cause of action, or
expense whatsoever (including, without limitation, reasonable attorney's fees
and other costs and expenses of defending against any such claim) arising or
alleged to arise from any unauthorized use by Tenant, or its agents or employees
of the term "INFOMART".
SECTION 8.4. EFFECT OF DELIVERY OF THIS LEASE. Landlord has delivered a
copy of this Lease to Tenant for Tenant's review only, and the delivery hereof
does not constitute an offer or option to Tenant. This Lease shall not be
effective until a copy executed by both Landlord and Tenant is delivered to and
accepted by Landlord, and this Lease has been approved by Landlords' mortgagee.
SECTION 8.5. EXHIBITS, SCHEDULES AND RIDERS. The Exhibits and Riders
attached to this Lease are hereby incorporated herein and hereby made a part of
this Lease. If there is any conflict between the attached Exhibits "B" and "D"
and the terms and provisions of this Lease, the terms and provisions of this
Lease shall prevail.
SECTION 8.6. DEFAULT BY LANDLORD. Landlord shall be in default under this
Lease in the event Landlord has not begun and pursued with reasonable diligence
the cure of any failure of Landlord to meet its obligations under this Lease
within thirty (30) days of the receipt by Landlord of written notice from Tenant
of Landlord's alleged failure to perform. In no event shall Tenant have the
right to terminate or rescind this Lease as a result of Landlord's default.
Except as otherwise specifically provided in Sections 3.3 and 5.2 of this Lease,
Tenant waives such remedies of termination and rescission and agrees that
Tenant's remedies for default under this Lease and for breach of any promise or
inducement are limited to a suit for damages and/or injunction. In addition,
Tenant shall prior to the exercise of any such remedies, provide each holder of
a mortgage or deed of trust lien on the property and each lessor under a ground
lease relative to the property (in each instance, only as those entities of this
Tenant has notice of their interest) with written notice and reasonable time to
cure any default by Landlord.
SECTION 8.7 MAINTENANCE AND REPAIRS BY LANDLORD. Landlord shall arrange for
the repair and maintenance of the foundation; exterior walls; roof of the
Building; the public areas within the Property; the heating, air conditioning
and ventilation system within the Building; and the facilities which are owned
by Landlord (and specifically excluding facilities installed by Tenant or a
third-party provider) providing utility services which are located within the
Property (collectively, "Landlord's Repair Obligations"). Landlord, however,
shall not be required to make any repairs arising as a result of, in whole or in
part, the act or negligence of Tenant or its agents, employees, affiliates, or
invitees; and those repairs shall be the obligation of Tenant. In the event that
the Leased Premises becomes in need of repairs which are within Landlord's
Repair Obligations, Tenant shall give immediate notice to Landlord of the nature
of such repair need; and Landlord shall not be responsible in any way for
failure to
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make any repairs until a reasonable time shall have elapsed after receipt by
Landlord of such written notice. All of Landlord's Repair Obligations shall be
performed in a manner comparable to those made by the owner of the Dallas Market
Center to that complex.
IN TESTIMONY HEREOF, the parties have executed this Lease as of the day and
year first above written.
L A N D L O R D
IM JOINT VENTURE, a Texas joint venture
By: IFM PARTNERSHIP, a Texas general
partnership, a Joint Venturer
By: /s/ HARLAN R. CROW
-----------------------------------
Name: Harlan R. Crow
---------------------------------
Title: Partner
T E N A N T
WYNDHAM HOTEL CORPORATION, a Texas corporation
By: /s/ LESTER V. BENTLEY
-----------------------------------
Name: Lester V. Bentley
---------------------------------
Title: Executive Vice President
--------------------------------
Exhibit "A" - Property Description
Exhibit "B" - Building Rules
Exhibit "C" - Designation of Leased Premises
Exhibit "D" - INFOMART Policy Statement
Exhibit "E" - Parking
Exhibit "F" - Right of First Refusal
Exhibit "G" - Expansion Option
Exhibit "H" - Renewal Option
Exhibit "I" - Cancellation Option
Exhibit "J" - Subordination, Non-Disturbance and Attornment Agreement
Exhibit "K" - Meeting Room Usage Agreement
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WYNDHAM HOTEL CORPORATION
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EXHIBIT "A"
To Lease Agreement By and Between IM Joint Venture, as Landlord and
WYNDHAM HOTEL CORPORATION, as Tenant
PROPERTY DESCRIPTION
BEING a 25.454 acre tract of land situated in the City of Dallas, Dallas
County, Texas and out of the James A. Sylvester Survey, Abstract No. 1383 and
being a part of City of Dallas Block No. 6053, also being the same tract of
land conveyed to Dallas Market Center Company by a Special Warranty Deed
recorded in Volume 82113, Page 3240 of the Deed Records of Dallas County,
Texas, said 25.454 acre tract of land being more particularly described as
follows:
BEGINNING at a 1/2 inch iron rod found for the point of intersection of the
southwesterly right-of-way line of the Chicago Rock Island and Pacific Railroad
with the northwesterly right-of-way line of Oak Lawn Avenue;
THENCE with the northwesterly right-of-way line of Oak Lawn Avenue the
following:
South 31 31'40" West a distance of 366.74 feet to an "X" chiseled in concrete
found for corner in a curve to the right, the radius point of said curve bearing
North 50 08'58" West a distance of 241.00 feet from said "X";
Southwesterly with said curve to the right through a central angle of 03 09'20"
an arc distance of 13.27 feet to an "X" chiseled in concrete set for the point
of reverse curvature of a curve to the left having a radius of 259.00 feet;
Southwesterly with said curve to the left through a central angle of 11 28'43"
an arc distance of 51.89 feet to a 1/2 inch iron rod found for the point of
reverse curvature of a curve to the right having radius of 129.00 feet;
Southwesterly with said curve to the right through a central angle of 24 06'22"
an arc distance of 138.22 feet to a 1/2 inch iron rod set for the point of
compound curvature of a curve to the right having a radius of 50.00 feet;
Northwesterly with said curve to the right through a central angle of 24 06'22"
an arc distance of 21.04 feet to a 1/2 inch iron rod found in the northeasterly
right-of-way line of Stemmons Freeway for the point of compound curvature of a
curve to the right having a radius of 1130.92 feet;
THENCE with the northeasterly right-of-way line of Stemmons Freeway the
following:
Northwesterly with said curve to the right through a central angle of 07 24'40"
an arc distance of 146.28 feet to a 1/2 inch iron rod found for the point of
tangency of said curve;
North 55 33'45" West a distance of 816.18 feet to a 1/2 inch iron rod found for
point of curvature of a curve to the left having a radius of 3289.04 feet;
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Northwesterly with said curve to the left through a central angle of 01 23'21 "
an arc distance of 79.74 feet to a bolt in concrete found for the most
southerly corner of a tract of land leased to Southwestern Furniture Mart Co.
from Industrial Properties Corporation as recorded in Volume 67076, Page 0690
of the Deed Records of Dallas County, Texas;
THENCE departing the northerly right-of-way line of Stemmons Freeway with the
easterly line of the Southwestern Furniture Mart Company tract, North 09 21'30"
East a distance of 1064.46 feet to a 1/2 inch iron rod found for corner in the
curving southwesterly right-of-way line of the Chicago, Rock Island and Pacific
Railroad, the radius point of said curve being situated South 33 11'48" West a
distance of 1599.88 feet;
THENCE with the southerly right-of-way lien of the Chicago, Rock Island and
Pacific Railroad the following:
Southeasterly with said curve to the right through a central angle of 02 41'48"
an arc distance of 75.30 feet to a 1/2 inch iron rod found for corner;
North 52 07'00" East a distance of 30.11 feet to a 1/2 inch iron rod found for
corner in a curve to the right, the radius point of said curve being situated
South 32 19'18" West a distance of 1553.95 feet;
Northwesterly with said curve to the right through a central angle of 21 26'39"
an arc distance of 581.59 feet to a 1/2 inch iron rod set for corner;
North 45 16'10" East a distance of 53.07 feet to 1/2 inch iron rod set for
corner;
South 31 48'40" East a distance of 976.20 feet to the POINT OF BEGINNING;
CONTAINING an area of 25.454 acres of land.
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INITIALS
Landlord /s/ HC Tenant /s/ LVB
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EXHIBIT "B"
To Lease Agreement By and Between IM Joint Venture, as Landlord and
WYNDHAM HOTEL CORPORATION, as Tenant
RULES AND REGULATIONS
1. No additional locks shall be placed on the doors of the Leased
Premises by Tenant, nor shall any existing locks be changed unless Landlord is
immediately furnished with two keys thereto. Landlord will without charge
furnish Tenant with two keys for each lock existing upon the entrance doors
when Tenant assumes possession with the understanding that at the termination
of the lease these keys shall be returned or paid for at five dollars ($5.00)
each. A deposit of one dollar ($1.00) each shall be required for additional
keys.
2. Tenant shall not at any time display a "For Rent" sign upon
the Building or the Leased Premises, or advertise the Leased Premises for rent.
3. Safes and other unusually heavy objects shall be placed by
Tenant only in such places as may be approved by Landlord. Any damage caused by
overloading the floor or by taking in or removing any object from the Leased
Premises or the Building shall be paid by Tenant.
4. Windows facing on corridors shall at all times be wholly clear
and uncovered (except for such signs as Landlord may approve) that a full
unobstructed view of the interior of the Leased Premises may be had from the
corridors, unless otherwise approved in writing by Landlord.
5. No vehicles or animals shall be brought into the Building,
other than as required by handicapped persons.
6. Tenant shall not make any changes in the pipes, ducts, or
wiring serving the Leased Premises or add any additional pipes, ducts, or
wiring without the prior written consent of Landlord, and any such changes or
additions shall be made in such manner as Landlord may direct.
7. No sign, tag, label, picture, advertisement, or notice (other
than price tags of customary size used in marking samples) shall be displayed,
distributed, inscribed, painted or affixed by Tenant on any part of the outside
of the Building or of the Leased Premises without the prior written consent of
the Landlord.
8. In the event Landlord should advance upon the request, or for
the account of the Tenant, any amount for labor, material, packing, shipping,
postage, freight or express upon articles delivered to the Leased Premises or
for the safety, care, and cleanliness of the Leased Premises, the amount so
paid shall be regarded as additional rent and shall be due and payable
forthwith to the Landlord from the Tenant.
9. The corridors and hallways of the Building shall not be used
by Tenant for any purpose other than ingress to or egress from the Leased
Premises.
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10. Tenant shall not do or permit to be done within the Leased
Premises anything which would unreasonably annoy or interfere with the rights
of other tenants in the Building, or which might constitute a potential hazard
to other tenants or visitors.
11. During the thirty (30) days prior to the expiration of this
Lease, Landlord may show the Leased Premises to prospective tenants.
12. Tenant shall not put or operate any steam engine, boiler,
industrial machinery or stove in the Building or upon the Leased Premises or do
any cooking thereon or use or allow to be kept in the Building or upon the
Leased Premises any explosives or any kerosene, camphene, bottled gas, oil or
other highly flammable materials, except gas supplied through metal pipes for
heating purposes and normal and customary cleaning and janitorial supplies to
the extent permitted under applicable laws.
13. Landlord reserves the right to prescribe reasonable
qualifications for admission into the Building.
14. Models, salespersons or other employees or representatives of
Tenant, shall not model, demonstrate display, or show in any manner any
merchandise outside of the Leased Premises in the Building or on the Property
without Landlord's prior written consent.
15. As a courtesy, but not as an obligation, Landlord may, at
Landlord's option, upon request by Tenant, receive and store articles or
merchandise delivered to Tenant at the Building; provided, however that such
articles of merchandise are properly addressed and identified and all postage,
handling and delivery charges are prepaid by Tenant. Landlord assumes no
responsibility whatsoever for the loss, damage or destruction of such articles
of merchandise received at the Building by Landlord on behalf of Tenant, and
Tenant hereby waives all claims against Landlord for any damage or loss arising
at any time from the loss, damage or destruction of such articles of
merchandise. Tenant agrees to pay to Landlord as additional rent the amount of
all storage, delivery, handling and other expenses incurred by Landlord as a
result of the receipt and storage of such articles of merchandise.
16. Canvassing, peddling, soliciting and distribution of handbills
or any other written material in the Building or in the Building's parking
areas are prohibited, and each tenant shall cooperate to prevent the same.
17. If the Leased Premises front on the atrium within the
Building, Tenant shall cause the Leased Premises to be kept open for business
and occupied by Tenant's personnel during all normal business hours of the
Building.
18. These Rules and Regulations are in addition to, and shall not
be construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of space in the Building.
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19. Landlord reserves the right to make such other and reasonable
rules and regulations as in its judgment may from time to time be needed for
the safety, care and cleanliness of the Building, and for the preservation of
good order therein.
20. Tenant shall comply with the INFOMART Policy Statement. Tenant
shall be liable for all injuries and damages sustained by Landlord or
Landlord's agents or by other tenants, occupants, or invitees of the Building
by reason of any breach of the requirements of the INFOMART Policy Statement by
Tenant or Tenant's agents, employees or invitees.
21. Landlord may amend these Rules and Regulations from time to
time and such changes shall be binding upon Tenant.
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EXHIBIT "C"
To Lease Agreement By and Between IM Joint Venture, as Landlord and
WYNDHAM HOTEL CORPORATION, as Tenant
DESIGNATION OF LEASED PREMISES
(For illustrative purposes only)
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FIFTH FLOOR
[Floor Plan]
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SIXTH FLOOR
[Floor Plan]
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EXHIBIT "D"
To Lease Agreement By and Between IM Joint Venture, as Landlord and
WYNDHAM HOTEL CORPORATION, as Tenant
INFOMART POLICY STATEMENT
GENERAL POLICIES AND PROCEDURES
REGARDING INFOMART, DALLAS
1. PERMANENT TENANT QUALIFICATIONS. Permanent tenants must be
producers of hardware, software or services utilizing information processing
equipment unless otherwise specifically approved by Landlord. If the tenant's
business includes the resale of products or services, the tenant must add to or
enhance the value of such products or services.
2. TEMPORARY EXHIBITOR REGULATIONS.
(a) During designated temporary trade events sponsored by Landlord
which are conducted in conjunction with the use of permanent showrooms and
which include the rental of temporary exhibit space, permanent tenants will be
offered a priority selection of such temporary exhibit space based in the
initial year upon the dates on which such permanent tenants entered into leases
for space within the Building and in subsequent years on a priority basis
reasonably determined by Landlord.
(b) When temporary exhibit space is used in conjunction with
permanent showrooms, non-information processing industry representatives may
display wares for specific trade markets.
(c) Temporary space areas may be rented independent of permanent
showrooms, in which event Landlord will have sole discretion as to exhibition
policies.
3. BUSINESS HOURS. Permanent showrooms bounded by an atrium wholly or
partially will be open and staffed during all normal business hours of the
Building. Showrooms must be open during all Landlord sponsored trade events
with exceptions approved in writing by Landlord. The hours of these events
will be established by Landlord.
4. SALES POLICY. Warehousing and on-site delivery to customers is
prohibited in permanent showrooms and in exhibit space when used in conjunction
with showrooms. Payment for products or services that are of a retail sales
nature are prohibited (provided, however, that payment or partial payment for
orders taken at the Building for future delivery to a buyer will be allowed if
it is within the applicable tenant's normal business practice and is not of a
retail sales nature, it being the intention hereof to permit payments or
partial payments intended to bind an order for future delivery without in any
way qualifying or circumventing the prohibition within the Building against
retail sales).
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5. ACCESS AND ADMISSION OF VISITORS. Landlord reserves the right to
implement and/or use any or all of the following policies with regard to access
and admission of visitors into the Building. Tenant will receive prior notice
of any change in the policy.
(a) All entrants to the Building will be registered and issued an
identification badge with the exception of visitors with a pre-arranged
appointment with a specific tenant. Appointment-only visitors will be issued a
badge which requires such visitors to be accompanied by the applicable inviter.
Appointment-only visitors will not be required to register on the Building's
visitor database.
(b) Terms of issuance of badges will be annual with the exception
of specific trade events, including without limitation conferences and
symposia, in which event badges will be valid only during the scheduled event.
Temporary user badges will be issued to non-scheduled daily visitors.
(c) A registration fee will be established by Landlord which will
defray the cost of registration and better ensure the quality of visitors.
(d) Permanent tenants' badges will be issued based on one badge
per 500 Usable Square Feet of space, with additional badges available upon
payment of a registration fee cost or annual renewal cost.
(e) Members of the press and educational institutions will be
issued a maximum of five annual complimentary badges with additional badges
available upon payment of the standard registration fee.
(f) Employees and agents of Landlord will be issued badges at the
discretion of Landlord.
(g) Visitor registration information deemed appropriate by
Landlord will be made available to permanent tenants. Information regarding
tenant invitees will be proprietary and not available to tenants. Attendee
registration lists of externally sponsored events will be the property of the
sponsoring group.
6. PUBLIC FUNCTION/ON-SITE ACCOMMODATIONS.
(a) A visitor information directory system will be provided by
Landlord to assist visitors in locating vendors. Tenant and exhibitor listings
will be categorized by company name and product offerings. Each tenant is
eligible to multiple product listings applicable, up to a maximum of one
product category listing per 500 Usable Square Feet of permanent lease space.
Additional listings may be issued at a nominal fee subject to product
eligibility.
(b) Tenant's meeting room use will be coordinated on a reservation
basis and all tenants will be eligible. Standard fees will be applied and
Landlord will control the rental of these areas and the use of the areas will
be coordinated by the buyer/tenant
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services department of Landlord. Reservations for meeting room space within the
Building will be on a first-come first-served basis.
7. MERCHANDISING OF INFOMART. INFOMART reserves the right to list
tenants, partially or in entirety, of INFOMART in merchandising programs and
agrees that such use shall not contain editorial references regarding specific
tenants.
8. TENANT PARKING. On-site parking for employees and guests of tenants
shall be made available. Tenants are eligible to one parking space per 1,000
Usable Square Feet of permanent lease space, subject to such terms and
conditions (including without limitation such rental or other charges) as
Landlord may from time to time impose.
9. AMENDMENTS TO GENERAL POLICIES AND PROCEDURES. Landlord may amend
its policies from time to time and such changes shall be binding upon Tenant.
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EXHIBIT "E"
To Lease Agreement By and Between IM Joint Venture, as Landlord and
WYNDHAM HOTEL CORPORATION, as Tenant
PARKING
This Exhibit "E" ("Exhibit") supersedes Rule 8 of Exhibit "D" attached to
the Lease and describes and specifies Tenant's non-exclusive right to use one
hundred twenty (120) non-reserved parking spaces ("Spaces") located inside the
Building's card access parking garage ("Parking Garage"). Spaces in the surface
parking lots associated with the Building and located on the Property ("Surface
Parking") are provided for the non-exclusive and common use of Landlord, all
tenants of the Building, and their respective guests and invitees. Utilization
of the Surface Parking is subject to availability (and Landlord shall have no
obligation to provide available Surface Parking) and to such rules and
regulations as may be promulgated by Landlord from time to time. Use of the
Parking Garage and the Surface Parking is subject to the terms and conditions
set forth below.
1. DEFINITIONS. The terms which are defined in the Lease shall have the
same meaning in this Exhibit.
2. GRANT. Provided no event of default has occurred and is continuing under
the Lease, Tenant shall be permitted, free of charge, non-exclusive use of
Spaces in the Parking Garage during the Lease Term for the parking of one
hundred twenty (120) vehicles. Tenant shall also have the right to use the
Surface Parking, free of charge, during the Lease Term.
3. RISK. All motor vehicles (including all contents thereof) shall be
parked in the Spaces or in the Surface Parking, as applicable, at the sole
risk of Tenant, its employees, agents, invitees and licensees, it being
expressly agreed and understood that Landlord has no duty to insure any of said
motor vehicles (including the contents thereof), and that Landlord is not
responsible for the protection and security of such vehicles. Landlord shall
have no liability whatsoever for any property damage and/or personal injury
which might occur as a result of or in connection with the parking of said motor
vehicles in any of the Spaces or in the Surface Parking, as applicable unless
caused by the gross negligence or willful misconduct of Landlord or its agents,
and Tenant hereby agrees to indemnify and hold Landlord harmless from and
against any and all costs, claims, expenses, and/or causes of action which
Landlord may incur in connection with or arising out of Tenant's use of the
Spaces or the Surface Parking pursuant to this Agreement.
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4. RULES AND REGULATIONS. In its use of the Spaces and the Surface Parking,
Tenant shall follow all of the Rules and Regulations of the Building (attached
to the Lease as Exhibit "B") applicable thereto, as the same may be amended from
time to time. Upon the occurrence of any breach of such rules or default by
Tenant under the Lease, Landlord shall be entitled to terminate this Exhibit, in
which event Tenant's right to utilize the Spaces and/or the Surface Parking
shall thereupon automatically cease.
5. SECURITY. Landlord shall be entitled to utilize whatever access device
Landlord deems necessary (including but not limited to the issuance of parking
stickers or access cards), to insure that only tenants authorized to use spaces
in the Parking Garage are using such spaces. In the event Tenant, its agents or
employees wrongfully park in any of the Parking Garage's spaces, Landlord shall
be entitled and is hereby authorized to have any such vehicle towed away, at
Tenant's sole risk and expense, and Landlord is further authorized to impose
upon Tenant a penalty of $25.00 for each such occurrence. Tenant hereby agrees
to pay all amounts falling due hereunder upon demand therefor, and the failure
to pay any such amount shall additionally be deemed an event of default under
the Lease, entitling Landlord to all of its rights and remedies thereunder.
6. ADDITIONAL SPACES. In the event that Tenant expands the Leased Premises,
Tenant shall be entitled to additional Spaces within the Parking Garage based
upon a ratio of one (1) additional Space per additional 1,000 Usable Square Feet
incorporated into the Leased Premises at no charge to Tenant. Such additional
Spaces shall be subject to such terms, conditions, and regulations as are, from
time to time, promulgated by Landlord and charged or applicable to patrons of
said Parking Garage for spaces similarly situated within said Parking Garage.
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EXHIBIT "F"
To Lease Agreement By and Between IM Joint Venture, as Landlord and
WYNDHAM HOTEL CORPORATION, as Tenant
EXPANSION OPTION
This Exhibit "F" describes and specifies the expansion option hereby
granted by Landlord to Tenant with respect to certain space within the Building
described below, which is being granted upon the following terms and conditions:
1. DEFINED TERMS. For purposes of this Exhibit "F", all terms defined in
the Lease (including other exhibits to the Lease) will be utilized herein
without further definition. In addition, when delineated with initial capital
letters, the following terms shall have the following respective definitions and
meanings:
(a) "Expansion Option" shall refer to the option to expand the Leased
Premises described in Paragraph 2 below.
(b) "Expansion Option Spaces" shall mean. collectively, the areas
within the Building which are designated as expansion areas on Schedule "A"
attached to this Exhibit F and consisting of approximately 24,087 Rentable
Square Feet located on the sixth floor and approximately 20,110 Rentable
Square Feet located on the fifth floor of the Building.
2. GRANT OF OPTION. Provided that Tenant is not in default under the Lease
or, if Tenant is in default, the applicable curative period has not expired,
Tenant may exercise the Expansion Option in order to expand the Leased Premises
to include each of the Expansion Option Spaces under the terms and conditions
provided herein by delivering notice of Tenant's election to exercise the
Expansion Option. The Expansion Option must be exercised by delivery of written
notice to Landlord on or before 5:00 p.m. December 31, 1997. The failure of
Tenant to exercise the Expansion Option in the manner and within the time period
specified above shall be deemed to be an irrevocable waiver of such Option.
However, any of the Expansion Option Spaces which have not been included within
the Leased Premises as a result of Tenant's exercise of the Expansion Option
shall become "Refusal Spaces" (as defined in Exhibit G attached to this Lease).
While the Expansion Option may be exercised with respect to each of the
Expansion Option Spaces individually and may be exercised one or more times
prior to the expiration of the Expansion Option, Tenant's exercise of the
Expansion Option must be related to the entire area within each of the
designated Expansion Option Spaces; and Tenant may not exercise the Expansion
Option with respect to only a portion of any of the Expansion Option Spaces. If
Tenant has exercised the Expansion Option during a period in which a curative
period relative to a Tenant default was in effect but failed to complete such
cure within that curative period, then Tenant's exercise of its Expansion Option
may, at Landlord's sole election, be nullified and declared void.
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3. EFFECT OF EXERCISE. In the event that Tenant exercises the Expansion
Option, those Expansion Option Spaces which Tenant has elected to take shall be
included within the Leased Premises on the same terms and condition specified in
the Lease, and Base Rental shall be at the then current Base Rental applicable
to the Leased Premises as provided in the Lease. Upon the exercise of an
Expansion Option, Landlord and Tenant shall exercise an amendment to the Lease
with respect tot he applicable Expansion Option Space.
4. TERMINATION OF OPTION. The Expansion Option shall automatically
terminate upon (i) 5:00 p.m., Central Standard Time, on December 31, 1997, (ii)
upon the expiration or termination of the Lease Term, whether by Landlord or
upon the occurrence of an event of default or otherwise, and/or (iii) on an
assignment, subletting, or other transfer by Tenant of any part of its leasehold
interest hereunder to any person or entity other than an Affiliate, whether or
not with the approval of Landlord. In addition, neither Expansion Option nor the
Refusal Right shall not be applicable during any renewal or extension of the
Lease Term.
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SCHEDULE "A"
To Exhibit "F" to Lease Agreement By and Between IM Joint Venture, as Landlord
and WYNDHAM HOTEL CORPORATION, as Tenant
EXPANSION OPTION SPACES
(For illustrative purposes only)
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EXPANSION OPTION SPACES
(For illustrative purposes only)
FIFTH FLOOR
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EXPANSION OPTION SPACES
(For illustrative purposes only)
SIXTH FLOOR
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EXHIBIT "G"
To Lease Agreement By and Between IM Joint Venture, as Landlord and
WYNDHAM HOTEL CORPORATION, as Tenant
RIGHT OF FIRST REFUSAL
This Exhibit "G" describes and specifies the right of first refusal option
hereby granted by Landlord to Tenant with respect to certain specified space
within the Building described below, which is being granted upon the following
terms and conditions:
1. DEFINED TERMS. For purposes of this Exhibit "G", all terms defined in
the Lease (including other exhibits to the Lease) will be utilized herein
without further definition. In addition, when delineated with initial capital
letters, the following terms shall have the following respective definitions and
meanings:
(a) "Refusal Right" shall refer to the right of first refusal being
granted to Tenant pursuant to the provisions of this Exhibit G.
(b) Refusal Spaces shall mean each of the Expansion Option Spaces
(designated on Schedule A attached to Exhibit F of this Lease) which remain
unleased at the time the Expansion Option expires.
(c) "Expansion Effective Date" shall mean the date on which any
Refusal Space is delivered to Tenant pursuant to the exercise by Tenant of
its Refusal Right.
(d) "Bona Fide Offer" shall mean an offer to lease all or any portion
of the Refusal Spaces which Landlord desires to accept, as evidenced by an
offer letter from Landlord to such proposed tenant.
(e) "Refusal Right Termination Date" shall mean 5:00 p.m., Central
Standard Time, on December 31, 2000.
2. GRANT OF REFUSAL RIGHT. Provided that Tenant is not then in default or,
if Tenant is in default, the applicable curative period has not expired under
the Lease, Landlord hereby grants Tenant the Refusal Right with respect to the
Refusal Spaces
3. PROCEDURE FOR EXERCISE OF REFUSAL RIGHT. In the event that Landlord
receives a Bona Fide Offer from a third-party
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tenant to lease all or any part of the Refusal Spaces prior to the Refusal Right
Termination Date, Landlord shall notify Tenant in writing of such offer ("Offer
Notice") and shall include a copy of the applicable offer letter with the Offer
Notice. Tenant shall have ten (10) business days from Tenant's receipt of the
Offer Notice in which to notify Landlord, in writing, of Tenant's decision as to
whether to exercise the Refusal Right with respect to the designated Refusal
Space. In the event that Tenant fails to so notify Landlord within such ten (10)
business day period, Tenant shall be deemed to have irrevocably waived its
Refusal Right with respect to the portion of the Refusal Spaces designated in
the Offer Notice; and such portion of the Refusal Spaces shall not thereafter be
considered to be Refusal Spaces for the purpose of the Refusal Right. If Tenant
has exercised the Refusal Right during a period in which a curative period
relative to a Tenant default was in effect but failed to complete such cure
within that curative period, then Tenant's exercise of its Refusal Right may, at
Landlord's sole election, be nullified and declared void.
4. EFFECT OF EXERCISE OF REFUSAL RIGHT. In the event Tenant exercises
Tenant's Refusal Right, Tenant shall take such subject Refusal Spaces upon the
same terms and conditions as specified in the Offer Notice, including, without
limitation, the rate of Base Rental specified in the Offer Notice and the
proposed lease term specified in the Offer Notice. However, in the event that
the Offer Notice contains rental concessions (i.e., such as a free rent period
or a tenant improvement allowance to be furnished by Landlord), then Tenant may
elect not to take the rental concessions but to instead have the Base Rental for
the applicable Refusal Spaces determined on an effective rate basis. As used
herein, the phrase "effective rate basis" shall mean that the value of such
rental concessions shall be deducted from the stated rate of Base Rental on a
straight-line basis, prorated over the term applicable to such Refusal Spaces.
Landlord and Tenant shall, within fifteen (15) days after Tenant delivers notice
to Landlord of its election to exercise its Refusal Right, enter into a written
agreement modifying and supplementing this Lease and containing such other terms
and provisions as Landlord may deem appropriate. Except as may be specifically
modified in such written agreement or with respect to any terms specified in the
Offer Notice, the terms and provisions of the Lease shall, on the applicable
Expansion Effective Date, automatically and without the necessity of further
documentation, become and be deemed
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to be a part of the Leased Premises. Effective as of the applicable Expansion
Effective Date, the Rentable Square Feet within the subject Refusal Space shall
be included within the determination of Tenant's Proportionate Share as provided
in Section 2.4 of this Lease.
5. TERMINATION OF REFUSAL RIGHT. The Refusal Right shall automatically
terminate upon (i) the occurrence of the Refusal Right Termination Date, (ii)
the expiration or termination of the Lease Term, whether by Landlord upon the
occurrence of an event of default or otherwise, or (iii) an assignment,
subletting, or other transfer by Tenant of any part of its leasehold interest
hereunder to any person or entity other than an Affiliate, whether or not with
the approval of Landlord. In addition, the Refusal Right shall not be applicable
during any renewal or extension of the Lease Term.
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SCHEDULE "A"
To Exhibit "G" to Lease Agreement By and Between IM Joint Venture, as Landlord
and WYNDHAM HOTEL CORPORATION, as Tenant
REFUSAL SPACES
(For illustrative purposes only)
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FIFTH FLOOR
[Floor Plan]
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SIXTH FLOOR
[Floor Plan]
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EXHIBIT "H"
To Lease Agreement By and Between IM Joint Venture, as Landlord and
WYNDHAM HOTEL CORPORATION, as Tenant
RENEWAL OPTION
1. DEFINED TERMS. For purposes of this Exhibit "H", all terms defined in
the Lease (including other exhibits to the Lease) will be utilized herein
without further definition. In addition, when delineated with initial capital
letters, the following term shall have the following definition and meaning:
(a) "Renewal Date" shall mean the first day next following the
expiration date of the Lease Term.
2. GRANT OF OPTION. Tenant shall have the following option ("Option") to
renew this Lease:
Tenant may, by notifying Landlord of its election in writing at least
six (6) full calendar months prior to the end of the Lease Term, renew this
Lease for an additional lease term (the "Second Lease Term") beginning on
the first (1st) Renewal Date and continuing for five (5) years thereafter.
Such renewal shall be on all of the terms and conditions of this Lease
which are not inconsistent herewith, except that no renewal option shall
exist during the Second Lease Term.
The Base Rental payable beginning on the first (1st) Renewal Date and
continuing thereafter shall be the then Prevailing Market Rate.
Failure by Tenant to notify Landlord of Tenant's election to exercise
the renewal option herein granted within the time limits set forth for such
exercise shall constitute a waiver of such Option. Notwithstanding the
foregoing, the Option shall not be applicable at any time when there is an
uncured event of default under the Lease. In addition, the Option shall
automatically terminate upon the termination of the Lease Term, whether by
Landlord upon the occurrence of an event of default or otherwise or, at the
option of Landlord, in its sole discretion, upon the assignment,
subletting, or other transfer by Tenant, whether or not with the approval
of Landlord to any person or entity other than an Affiliate.
Notwithstanding the foregoing, the Option shall not terminate upon an
assignment or subletting of all or a portion of the Leased Premises to an
Affiliate which is permitted under the terms of the Lease.
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EXHIBIT "I"
To Lease Agreement By and Between IM Joint Venture, as Landlord and
WYNDHAM HOTEL CORPORATION, as Tenant
CANCELLATION OPTION
Notwithstanding anything contained in the Lease to the contrary, Tenant
shall have the right, in Tenant's sole discretion, to cancel and terminate this
Lease upon the following terms and conditions:
1. DEFINED TERMS. For purposes of this Exhibit "I", all terms defined in
the Lease shall be utilized herein without further definition. In addition, when
delineated with initial capital letters, the following terms shall have the
following respective definitions and meanings:
(a) Anniversary Date shall mean each successive anniversary of the
Commencement Date, the first (1st) anniversary date being the date which is
twelve (12) months from the Commencement Date.
(b) Lease Year shall mean each successive twelve (12) calendar month
period during the Lease Term, the first (1st) Lease Year commencing on the
Commencement Date and ending on the first (1st) Anniversary Date.
2. TERMINATION OPTION. Tenant shall have a one time right to cancel this
Lease effective at the end of the twelfth (12th) month of the seventh (7th)
Lease Year ("Cancellation Date") by providing Landlord with twelve (12) months'
prior written notice of Tenant's election ("Cancellation Notice") and by paying
to Landlord, at the time of Tenant's delivery of the Cancellation Notice, a
"Cancellation Fee" equal to the amount of the Base Rental which would have
otherwise been payable during the six (6) month period subsequent to the
Cancellation Date. Tenant's failure to deliver the Cancellation Notice to
Landlord in the manner and within the time period specified in the immediately
preceding sentence or Tenant's failure to pay the Cancellation Fee to Landlord
at the time of Tenant's delivery of the Cancellation Notice, shall constitute an
irrevocable waiver by Tenant of Tenant's right to exercise Tenant's option to
cancel the Lease under the provision of this Exhibit I ("Cancellation Option").
Once Landlord is in receipt of Cancellation Notice, Tenant may not rescind such
notice.
3. PROCEDURE. From and after the date on which Landlord receives Tenant's
notice of its election to exercise the Cancellation Option in the manner
specified in Paragraph 2 above, Landlord shall have the right to market and to
show the Leased Premises to prospective Tenants. On the effective date of the
termination specified in Tenant's notice to Landlord, Tenant shall surrender the
Leased Premises to Landlord in accordance with the provisions of Section 5.4
hereof. During the period from the date of Tenant's notice to the effective date
of such termination, Tenant shall remain responsible for compliance with all
terms and covenants of this Lease, including, without limitation, the payment of
Base Rental; and nothing contained herein shall be construed so as to relieve or
release Tenant from any such obligation.
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EXHIBIT "J"
To Lease Agreement By and Between IM Joint Venture, as Landlord and
WYNDHAM HOTEL CORPORATION, as Tenant
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
NOTICE: THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT RESULTS IN
YOUR LEASEHOLD ESTATE IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY
THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
THIS AGREEMENT is entered into by and among Tenant, Landlord, and
Beneficiary and effects the Property described in Schedule "A" attached hereto.
The terms "Tenant", "Landlord", "Beneficiary", "Premises", "Lease", "Property",
"Loan", "Note", and "Mortgage" are defined in the schedule of Definitions
attached hereto as Schedule "B". This Agreement is entered into with reference
to the following facts:
(a) Landlord and Tenant have entered into the Lease covering the Premises
in the Property.
(b) Beneficiary has agreed to make the Loan to Landlord to be evidenced by
the Note, which Note is to be secured by the Mortgage covering the Property,
provided that the Lease is subordinate to the lien of the Mortgage.
(c) For the purposes of completing the Loan, the parties hereto desire
expressly to acknowledge the subordination of the Lease to the lien of the
Mortgage, it being a condition precedent to Beneficiary's obligation to
consummate the Loan that the lien of the Mortgage be unconditionally and at all
times prior and superior to the leasehold interests and estates created by the
Lease.
(d) Tenant has requested that Beneficiary agree not to disturb Tenant's
possessory rights in the Premises in the event Beneficiary should foreclose the
Mortgage; provided that Tenant is not then in default under the Lease and
provided further that Tenant attorns to Beneficiary or the purchaser at any
foreclosure or trustee's sale of the Property.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. SUBORDINATION. Notwithstanding anything to the contrary set forth in the
Lease, Tenant hereby acknowledges that the Lease and the leasehold estate
created thereby and all of Tenant's rights thereunder shall be and shall at all
times remain subject, subordinate and inferior to the Mortgage and the lien
thereof, and all rights of Beneficiary thereunder and to any and all renewals,
modifications, consolidations, replacements and extensions thereof.
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2. ACKNOWLEDGEMENT AND AGREEMENT BY TENANT. Tenant acknowledges that:
(a) Beneficiary would not make the Loan without this Agreement;
(b) It acknowledges the Mortgage and the agreements evidencing and
securing the Loan; and
(c) Beneficiary, in making any disbursements to Landlord, is under no
obligation or duty to oversee or direct the application of the proceeds of
such disbursements, and such proceeds may be used by Landlord for purposes
other than improvement of the Property.
(d) From and after the date hereof, in the event of any act or
omission by Landlord which would give Tenant the right, either immediately
or after the lapse of time, to terminate the Lease or to claim a partial or
total eviction, Tenant will not exercise any such right:
(i) until it has given written notice of such act or omission to
Beneficiary, which notice shall be given not later than the number of
days required by the Lease for such notice to the Landlord; and
(ii) until the same period of time as is given to Landlord under
the Lease to cure such act or omission shall have elapsed following
such giving of notice to Beneficiary and following the expiration of
sixty (60) days from the time when Beneficiary shall have become
entitled under the Mortgage to remedy the same.
(e) It has notice that the Lease and the rent and all other sums due
thereunder have been assigned or are to be assigned to Beneficiary as
security for the Loan secured by the Mortgage. In the event that
Beneficiary notifies Tenant of a default under the Mortgage and demands
that Tenant pay its rent and all other sums due under the Lease to
Beneficiary, Tenant shall honor such demand and pay its rent and all other
sums due under the Lease directly to Beneficiary or as otherwise required
pursuant to such notice.
(f) It shall send a copy of any notice or statement under the Lease to
Beneficiary at the same time such notice or statement is sent to Landlord.
(g) It has no right or option of any nature whatsoever, whether
pursuant to the Lease or otherwise, to purchase the Premises or the
Property, or any portion thereof or any interest therein, and to the extent
that Tenant has had, or hereafter acquires, any such right or option, the
same is hereby acknowledged to be subject and subordinate to the Mortgage
and is hereby waived and released as against Beneficiary.
(h) This Agreement satisfies any condition or requirement in the Lease
relating to the granting of a non-disturbance agreement.
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<PAGE> 66
3. FORECLOSURE AND SALE. In the event of foreclosure of the Mortgage, or
upon a sale of the Property pursuant to the trustee's power of sale contained
therein, or upon a transfer of the Property by conveyance in lieu of
foreclosure, then:
(a) Non-Disturbance. So long as Tenant complies with this Agreement
and is not in default under any of the terms, covenant or conditions, past
all applicable cure periods, of the Lease, the Lease shall continue in full
force and effect as a direct lease between the succeeding owner of the
Property and Tenant, upon and subject to all of the terms, covenants and
conditions of the Lease, for the balance of the term of the Lease. Tenant
hereby agrees to adhere to and accept any such successor owner as landlord
under the Lease, and to be bound by and perform all of the obligations
imposed by the Lease and Beneficiary, or any such successor owner of the
Property, will not disturb the possession of Tenant, and will be bound by
all of the obligations imposed on the Landlord by the Lease, provided,
however, that Beneficiary, or any purchaser at a trustee's or sheriff's
sale or any successor owner of the Property shall not be:
(i) liable for any act or omission of a prior landlord (including
Landlord) unless such act or omission constitutes a breach of the
terms of the Lease and such breach continues after such Beneficiary,
purchaser at the trustee's sale, or successor owner of the Property
obtains title to the Property and has had reasonable opportunity to
cure such prior breach; or
(ii) subject to any offsets or defenses which Tenant might have
against any prior landlord (including Landlord); or
(iii) bound by any rent or additional rent which Tenant might
have paid in advance to any prior landlord (including Landlord) for a
period in excess of one (1) month or by any security deposit, cleaning
deposit, or other prepaid charge, unless same has been transferred to
them, which Tenant might have paid in advance to any prior landlord
(including Landlord); or
(iv) bound by any agreement or modification of the Lease made
without the written consent of Beneficiary.
(b) New Lease. Upon the written request of either Beneficiary or
Tenant to the other given at the time of any foreclosure, trustee's sale or
conveyance in lieu thereof, the parties agree to execute a lease of the
Premises upon the same terms and conditions as the Lease between Landlord
and Tenant, which lease shall cover any unexpired term of the Lease
existing prior to such foreclosure, trustee's sale or conveyance in lieu of
foreclosure.
(c) Beneficiary shall have no responsibility to provide (or liability
for not providing) any additional space for which Tenant has any option or
right under the Lease if, as a result of any lease or leases entered into
with other tenants prior to Beneficiary acquiring title to the Property, a
conflict exists between such other lease or leases and the right or option
of Tenant with respect to additional space, unless Beneficiary at its
option elects to provide the same and Tenant hereby releases Beneficiary
from any obligation it may otherwise have to provide the same, and agrees
that Tenant shall have no right to
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<PAGE> 67
cancel the Lease, abate rent or assert any claim against Beneficiary as a
result of the failure to provide any option space.
(d) Beneficiary shall have no liability to Tenant or any other party
for any conflict between the provisions of the Lease and the provisions of
any other lease affecting the Property, unless Beneficiary executed such
conflicting agreement, including, but not limited to, any provisions
relating to renewal options and options to expand, and in the event of such
a conflict, Tenant shall have no right to cancel the Lease or take any
other remedial action against Beneficiary or action against any other party
for which Beneficiary would be liable.
4. ACKNOWLEDGEMENT AND AGREEMENT BY LANDLORD. Landlord, as landlord under
the Lease and mortgagor or trustor under the Mortgage, acknowledges and agrees
for itself and its heirs, successors and assigns, that:
(a) This Agreement does not:
(i) constitute a waiver by Beneficiary of any of its rights under
the Mortgage; and/or
(ii) in any way release Landlord from its obligations to comply
with the terms, provisions, conditions, covenants, agreements and
clauses of the Mortgage;
(b) The provisions of the Mortgage remain in full force and effect and
must be complied with by Landlord; and
(c) In the event of a default under the Mortgage, Tenant may pay all
rent and all other sums due under the Lease to Beneficiary as provided in
this Agreement.
5. NO OBLIGATION OF BENEFICIARY. Beneficiary shall have no obligation or
incur any liability with respect to the erection or completion of the
improvements in which the Premises are located or for completion of the Premises
or any improvements for Tenant's use and occupancy, either at the commencement
of the term of the Lease or upon any renewal or extension thereof or upon the
addition of additional space, pursuant to any expansion rights contained in the
Lease.
6. NOTICE. All notices, consents, waivers or other communications which
this Lease requires or permits any party to give to another shall be in writing
and shall be given only by registered, certified or "Express" mail, or by
Federal Express or other similar courier service, return receipt requested,
postage prepaid, to the recipient party at the addresses set forth in Schedule
"B" to this Agreement. Any party may change its notice address at any time by
giving written notice of such change to the other party in the manner provided
herein at least ten (10) days prior to the date such change is effected. All
notices under this Lease shall be deemed given, received, made or communicated
on the delivery date or attempted delivery date shown on the return receipt or
similar document utilized by the courier service for the purpose of indicating
delivery.
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7. MISCELLANEOUS.
(a) This Agreement supersedes any inconsistent provision of the Lease.
(b) Nothing contained in this Agreement shall be construed to derogate
from or in any way impair or affect the lien and charge or provisions of
the Mortgage.
(c) Beneficiary shall have no obligations nor incur any liability with
respect to any warranties of any nature whatsoever, whether pursuant to the
Lease or otherwise, including, without limitation, any warranties
respecting use, compliance with zoning, Landlord's title, Landlord's
authority, habitability, fitness for purpose or possession.
(d) In the event that Beneficiary shall acquire title to the Premises
or the Property, Beneficiary shall have no obligation, nor incur liability,
beyond Beneficiary's then equity interest, if any, in the Premises, and
Tenant shall look exclusively to such equity interest of Beneficiary, if
any, in the Premises for the payment and discharge of any obligations
imposed upon Beneficiary hereunder or under the Lease, and Beneficiary is
hereby released and relieved of any other obligations hereunder and under
the Lease.
(e) This Agreement shall inure to the benefit of the parties hereto,
their respective successors and permitted assigns; provided, however, that
in the event of the assignment or transfer of the interest of Beneficiary,
all obligations and liabilities of Beneficiary under this Agreement shall
terminate, and thereupon all such obligations and liabilities shall be the
responsibility of the party to whom Beneficiary's interest is assigned or
transferred; and provided further that the interest of Tenant under this
Agreement may not be assigned or transferred without the prior written
consent of Beneficiary except to an Affiliate or in connection with a sale
of all assets of Tenant.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the state in which the Property is located.
IN WITNESS WHEREOF, the parties have executed this Subordination,
Non-Disturbance, and Attornment Agreement as of the ________ day of
____________________, 19____.
IT IS RECOMMENDED THAT, PRIOR TO THE EXECUTION OF THIS SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT, THE PARTIES CONSULT WITH THEIR
ATTORNEYS WITH RESPECT THERETO.
B E N E F I C A R Y
------------------------------------------,
a
-----------------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
30
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<PAGE> 69
L A N D L O R D
IM JOINT VENTURE, a Texas joint venture
By: IFM PARTNERSHIP, a Texas general
partnership, a Joint Venturer
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Title: Partner
T E N A N T
WYNDHAM HOTEL CORPORATION, a Texas
corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Schedule "A" - Property Description
Schedule "B" - Schedule of Definitions
- -------------------------------------------------------------------------------
INITIALS
Landlord /s/ HC Tenant /s/ LVB
----------- ------------
- -------------------------------------------------------------------------------
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SCHEDULE "A"
To Exhibit "J" To Lease Agreement By and Between IM Joint Venture, as Landlord
and WYNDHAM HOTEL CORPORATION, as Tenant
LEGAL DESCRIPTION
BEING a 25.454 acre tract of land situated in the City of Dallas, Dallas
County, Texas and out of the James A. Sylvester Survey, Abstract No. 1383 and
being a part of City of Dallas Block No. 6053, also being the same tract of land
conveyed to Dallas Market Center Company by a Special Warranty Deed recorded in
Volume 82113, Page 3240 of the Deed Records of Dallas County, Texas, said 25.454
acre tract of land being more particularly described as follows:
BEGINNING at a 1/2 inch iron rod found for the point of intersection of the
southwesterly right-of-way line of the Chicago Rock Island and Pacific Railroad
with the northwesterly right-of-way line of Oak Lawn Avenue;
THENCE with the northwesterly right-of-way line of Oak Lawn Avenue the
following:
South 3131'40" West a distance of 366.74 feet to an "X" chiseled in
concrete found for corner in a curve to the right, the radius point of said
curve bearing North 5008'58" West a distance of 241.00 feet from said "X";
Southwesterly with said curve to the right through a central angle of
0309'20" an arc distance of 13.27 feet to an "X" chiseled in concrete set
for the point of reverse curvature of a curve to the left having a radius
of 259.00 feet;
Southwesterly with said curve to the left through a central angle of
1128'43" an arc distance of 51.89 feet to a 1/2 inch iron rod found for the
point of reverse curvature of a curve to the right having radius of 129.00
feet;
Southwesterly with said curve to the right through a central angle of
2406'22" an arc distance of 138.22 feet to a 1/2 inch iron rod set for the
point of compound curvature of a curve to the right having a radius of
50.00 feet;
Northwesterly with said curve to the right through a central angle of
2406'22" an arc distance of 21.04 feet to a 1/2 inch iron rod found in the
northeasterly right-of-way line of Stemmons Freeway for the point of
compound curvature of a curve to the right having a radius of 1130.92 feet;
THENCE with the northeasterly right-of-way line of Stemmons Freeway the
following:
Northwesterly with said curve to the right through a central angle of
0724'40" an arc distance of 146.28 feet to a 1/2 inch iron rod found for
the point of tangency of said curve;
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North 5533'45" West a distance of 816.18 feet to a 1/2 inch iron rod
found for point of curvature of a curve to the left having a radius of
3289.04 feet;
Northwesterly with said curve to the left through a central angle of
0123'21" an arc distance of 79.74 feet to a bolt in concrete found for the
most southerly corner of a tract of land leased to Southwestern Furniture
Mart Co. from Industrial Properties Corporation as recorded in Volume
67076, Page 0690 of the Deed Records of Dallas County, Texas;
THENCE departing the northerly right-of-way line of Stemmons Freeway with
the easterly line of the Southwestern Furniture Mart Company tract, North
0921'30" East a distance of 1064.46 feet to a 1/2 inch iron rod found for corner
in the curving southwesterly right-of-way line of the Chicago, Rock Island and
Pacific Railroad, the radius point of said curve being situated South 3311'48"
West a distance of 1599.88 feet;
THENCE with the southerly right-of-way lien of the Chicago, Rock Island and
Pacific Railroad the following:
Southeasterly with said curve to the right through a central angle of
0241'48" an arc distance of 75.30 feet to a 1/2 inch iron rod found for
corner;
North 5207'00" East a distance of 30.11 feet to a 1/2 inch iron rod
found for corner in a curve to the right, the radius point of said curve
being situated South 3219'18" West a distance of 1553.95 feet;
Northwesterly with said curve to the right through a central angle of
2126'39" an arc distance of 581.59 feet to a 1/2 inch iron rod set for
corner;
North 4516'10" East a distance of 53.07 feet to 1/2 inch iron rod set
for corner; South 3148'40" East a distance of 976.20 feet to the POINT OF
BEGINNING;
CONTAINING an area of 25.454 acres of land.
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<PAGE> 72
SCHEDULE "B"
To Exhibit "J" To Lease Agreement By and Between IM Joint Venture, as Landlord
and WYNDHAM HOTEL CORPORATION, as Tenant
SCHEDULE OF DEFINITIONS
Beneficiary shall mean ___________________________________, a
___________________________________. All notices to Beneficiary shall be mailed
to:
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
with copy to:
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
and a copy to:
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
Mortgage shall mean a first lien Mortgage or Deed of Trust and Security
Agreement with Assignment of Rents dated as , encumbering the Property, executed
by Landlord, as Mortgagor or Trustor, to , as Trustee, in favor of Beneficiary,
securing repayment of the Loan evidenced by the Note, to be recorded in the
records of the county in which the Property is located.
Landlord shall mean _____________________________, a _____________________,
having an office at __________________________________________________________.
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<PAGE> 73
Lease shall mean a certain lease entered into by and among Landlord and
Tenant dated as of _______________, 19 ___, covering the premises.
Loan shall mean a first mortgage loan in an amount up to _________________
from Beneficiary to Landlord.
Note shall mean that certain ____________________ Note executed by Landlord
in favor of ____________________________________, a __________________________,
dated as of ______________________, 19 __, in the amount of __________________.
Premises shall mean certain space in the Improvements located in and upon
the Property.
Property shall mean the real property described in Schedule "A" attached
hereto together with the improvements thereon.
Tenant shall mean ______________________, a _________________ corporation,
having an office located at __________________________________________________.
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THIS PAGE INTENTIONALLY LEFT BLANK
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EXHIBIT "K"
To Lease Agreement By and Between IM Joint Venture, as Landlord and
WYNDHAM HOTEL CORPORATION, as Tenant
MEETING ROOM USAGE AGREEMENT
1. DEFINED TERMS. For purposes of this Exhibit "K", all terms defined in
the Lease (including other exhibits to the Lease) will be utilized herein
without further definition. In addition, when delineated with initial capital
letters, the following terms shall have the following respective definitions and
meanings:
(a) "Meeting Room Day" shall mean the use of one (1) meeting room for
any period of time between the hours of 7:00 a.m. and 11:00 p.m..
2. GRANT. Provided no event of default has occurred and is continuing under
the Lease and provided such meeting rooms are provided by Landlord at that
time, Tenant shall be permitted, free of any standard meeting room charges, to
use Rooms 7001 and 7011 six (6) Meeting Room Days per year of the original
Lease Term and use of the Auditorium two (2) Meeting Room Days per calendar
year of the original Lease Term. In addition, provided no event of default has
occurred and is continuing under the Lease, Tenant shall be permitted, free of
any standard meeting room charges, to use ten (10) Meeting Room Days per
calendar year of the original Lease Term. These additional ten (10) Meeting
Room Days in the Building shall be excluding the following areas in the
Building currently designated as Room 7001, Room 7011, the Auditorium, the
Atrium and all exhibit spaces. Any Meeting Room Days not used shall be
forfeited and may not be carried over to any subsequent year. Notwithstanding
the foregoing, Landlord shall not be under any obligation to provide these
meeting rooms to Tenant in the event that (a) the designated meeting rooms have
been leased to third parties for other purposes or (b) Landlord no longer
provides the usage of meeting rooms, whether for a fee or otherwise to other
tenants of the Building.
3. PROCEDURE. Meeting rooms will be reserved on a "first come first served"
basis and are subject to availability. Tenant shall observe all of Landlord's
rules, regulations and procedures in the reserving and utilization of the
meeting rooms.
4. TERMINATION OF MEETING ROOM USAGE AGREEMENT. This Grant shall
automatically terminate upon (i) the expiration or termination of the Lease
Term, whether by Landlord upon the occurrence of an event of default or
otherwise, and/or (ii) the exercise by Tenant or Landlord of Cancellation Option
as specified in Exhibit "H".
- -------------------------------------------------------------------------------
INITIALS
Landlord /s/ HC Tenant /s/ LVB
----------- ------------
- -------------------------------------------------------------------------------
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THIS LAST PAGE INTENTIONALLY LEFT BLANK
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<PAGE> 77
EXHIBIT "L"
To Lease Agreement By and Between IM Joint Venture, as Landlord and
WYNDHAM HOTEL CORPORATION, as Tenant
METHOD OF MEASURING FLOOR AREA
The method for calculating Rentable Square Feet shall be as follows:
(a) when measuring a demising wall between a tenant space and corridor, the
boundary shall be along the corridor side of the demising wall,
(b) when measuring a demising wall between a tenant space and the Building
exterior, the boundary shall be along the exterior face of glass;
(c) when measuring a demising wall between a tenant space and an adjacent
tenant space, the boundary shall be along the centerline of the demising wall;
and
(d) when measuring a demising wall between a tenant space and a Building common
space (i.e., electrical rooms, mechanical rooms, vertical penetrations and
chases), the boundary shall be along the tenant side of the demised wall.
- --------------------------------------------------------------------------------
INITIALS
Landlord /s/ HC Tenant /s/ LVB
------------ ------------
- --------------------------------------------------------------------------------
39
WYNDHAM HOTEL CORPORATION
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<PAGE> 1
AGREEMENT
THIS AGREEMENT is made and entered into as of July 29, 1997 by IFM
Partnership ("IFM") and Wyndham Hotel Corporation ("WHC").
RECITALS:
A. Pursuant to an Agreement for Redemption of Joint Venture Interest,
dated June 13, 1997, among Metropolitan Life Insurance Company ("MetLife"),
IM Joint Venture ("Venture"), IFM and Mill Spring Holdings, Inc.
("Mill Spring") ("Redemption Agreement"), IFM, which is a partner in the
Venture, has the right to cause the Venture to redeem MetLife's interest in
the Venture ("Redemption").
B. WHC has entered into a lease for space in the property owned by the
Venture ("Property") which lease will be amended or replaced upon the Venture's
redemption of MetLife's interest in the Venture.
C. WHC and IFM desire and agree to enter into this Agreement to assure
WHC that it receives the modifications to its lease described in paragraph B
above.
AGREEMENT:
For and in consideration of $10.00 and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and
confessed, IFM and WHC hereby agree as follows:
1. IFM will notify WHC (a) as soon as reasonably possible but at least
on or before November 25, 1997 whether IFM will be unable to cause the
Redemption to occur under the Redemption Agreement, and (b) whether IFM intends
to exercise its right to extend the Closing Date, as defined in the Redemption
Agreement, on or before August 20, 1997.
2. If IFM does not intend to extend the Closing Date, then WHC shall
have the right to cause IFM to extend the Closing Date by providing the
$500,000 payment necessary to cause such extension. If IFM cannot consummate
the Redemption under the Redemption Agreement, then WHC shall have the right
either (a) to require, subject to obtaining MetLife's consent, IFM to assign
its rights under the Redemption Agreement to WHC, allowing WHC to cause the
Redemption or (b) in recognition that MetLife may not consent to the assignment
set forth in subparagraph (a), to provide to IFM the funds necessary to cause
the Redemption to occur under the Redemption, in which case IFM will be acting
as WHC's designee or nominee. In the event WHC elects to proceed under
subparagraph (b), then upon consummation of the Redemption, WHC will be
assigned the interest of MetLife so redeemed.
-1-
<PAGE> 2
3. IFM and WHC will cooperate to structure the transactions described
in paragraph 2 in a manner to avoid a termination of the Venture and
otherwise to reduce any negative tax consequences to the greatest extent
possible.
EXECUTED as of the date first above written.
WYNDHAM HOTEL CORPORATION
By: /s/ LESLIE V. BENTLEY (csm)
-----------------------------
Name: Leslie V. Bentley
-----------------------------
Title: Executive Vice President
IFM PARTNERSHIP
By: /s/ HARAN R. CROW
-----------------------------
Name: Haran R. Crow
----------------------------
General Partner
-2-
<PAGE> 1
EXHIBIT 11
WYNDHAM HOTEL CORPORATION
COMPUTATION OF EARNINGS PER SHARE
QUARTER AND NINE MONTHS ENDED SEPTEMBER 30, 1996 AND 1997
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
QUARTER ENDED NINE MONTHS ENDED
SEPTEMBER 30 SEPTEMBER 30
------------------------ -------------------------
1996 1997 1996 1997
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Primary Earnings Per Share:
Number of Shares:
Common stock outstanding 20,018 21,097 20,018 20,382
Assumed exercise of stock options* -- -- -- --
---------- ---------- ---------- ----------
20,018 21,097 20,018 20,382
========== ========== ========== ==========
Income before extraordinary item $ 2,769 $ 3,676 $ 21,560 $ 10,501
Extraordinary item -- (298) (1,131) (298)
---------- ---------- ---------- ----------
Net Income $ 2,769 $ 3,378 $ 20,429 $ 10,203
========== ========== ========== ==========
Earnings per common share outstanding:
Income before extraordinary item $ .14 $ .17 $ 1.08 $ .52
Extraordinary item -- (.01) (.06) (.02)
---------- ---------- ---------- ----------
Net Income $ .14 $ 16 $ 1.02 $ .50
========== ========== ========== ==========
Fully Diluted Earnings Per Share:
Number of Shares:
Common stock outstanding 20,018 21,097 20,018 20,382
Assumed exercise of stock options* -- -- -- --
---------- ---------- ---------- ----------
20,018 21,097 20,018 20,382
========== ========== ========== ==========
Income before extraordinary item $ 2,769 $ 3,676 $ 21,560 $ 10,501
Extraordinary items -- (298) (1,131) (298)
---------- ---------- ---------- ----------
Net Income $ 2,769 $ 3,378 $ 20,429 $ 10,203
========== ========== ========== ==========
Earnings per common share outstanding:
Income before extraordinary item $ .14 $ .17 $ 1.08 $ .52
Extraordinary item -- (.01) (.06) (.02)
---------- ---------- ---------- ----------
Net Income $ .14 $ .16 $ 1.02 $ .50
========== ========== ========== ==========
</TABLE>
* Dilution from assumed exercise of stock options is less than 3 percent of
earnings per common shares outstanding, therefore, is not included in the
calculation.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 14,819
<SECURITIES> 0
<RECEIVABLES> 34,229
<ALLOWANCES> (2,063)
<INVENTORY> 1,887
<CURRENT-ASSETS> 58,677
<PP&E> 346,806
<DEPRECIATION> (56,415)
<TOTAL-ASSETS> 450,229
<CURRENT-LIABILITIES> 49,072
<BONDS> 109,675
0
0
<COMMON> 216
<OTHER-SE> 138,036
<TOTAL-LIABILITY-AND-EQUITY> 450,299
<SALES> 128,670
<TOTAL-REVENUES> 165,256
<CGS> 0
<TOTAL-COSTS> 96,275
<OTHER-EXPENSES> 38,902
<LOSS-PROVISION> 1,283
<INTEREST-EXPENSE> 11,788
<INCOME-PRETAX> 19,741
<INCOME-TAX> 9,240
<INCOME-CONTINUING> 10,501
<DISCONTINUED> 0
<EXTRAORDINARY> (298)
<CHANGES> 0
<NET-INCOME> 10,203
<EPS-PRIMARY> .50
<EPS-DILUTED> .50
</TABLE>
