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EXHIBIT 10.76
GUARANTY OF LEASE
This GUARANTY OF LEASE ("Guaranty") is executed as of June 15, 1999 by
CRESCENT OPERATING, INC., a Delaware corporation ("Guarantor"), for the benefit
of CRESCENT REAL ESTATE FUNDING III, L.P., a Delaware limited partnership
("Lessor").
R E C I T A L S
A. COI HOTEL GROUP, INC., a Texas corporation ("Lessee"), as lessee,
has entered into a Lease Agreement (the "Lease") with Lessor on even date
herewith with respect to the land, buildings, improvements and fixtures located
in Houston, ▇▇▇▇▇▇ County, Texas, commonly known as The Renaissance Houston
Hotel (the "Leased Property");
▇. ▇▇▇▇▇▇ is unwilling to enter into the Lease unless Guarantor
unconditionally guarantees the payment and performance of the Guaranteed
Obligations (as defined in Section 1.2 below); and
C. Guarantor is the owner of a direct or indirect interest in Lessee,
and Guarantor will directly benefit from the Lease.
A G R E E M E N T
NOW, THEREFORE, as an inducement to Lessor to enter into the Lease
with Lessee, and for other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
NATURE AND SCOPE OF GUARANTY
1.1 Guaranty of Obligation.
(a) Subject to the limitations set forth in Section 1.1(b)
hereof, Guarantor irrevocably and unconditionally guarantees to Lessor (and its
successors and assigns), the payment and performance of the Guaranteed
Obligations as and when the same shall be due and payable. Guarantor
irrevocably and unconditionally agrees that it is liable for the Guaranteed
Obligations as a primary obligor, and that it shall fully perform each and
every term and provision hereof.
(b) Anything in this Guaranty to the contrary
notwithstanding, the right of recovery by Lessor against Guarantor under this
Guaranty is limited to Guarantor's interests in Lessee and the lessees under
the leases listed on Exhibit A attached hereto and made a part hereof,
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and such parties permitted successors and assigns (whether by operation of law
or otherwise). Lessor shall not look to any other property or asset of
Guarantor in seeking to enforce Guarantor's obligations under this Guaranty or
to satisfy any judgement for Guarantor's failure to perform its obligations
under this Guaranty.
1.2 Definition of Guaranteed Obligations. As used herein, the term
"Guaranteed Obligations" shall mean all of the obligations and liabilities of
Lessee under the Lease, including without limitation, the obligation to pay all
Base Rent, Percentage Rent, and Additional Charges (as those terms are defined
in the Lease) as and when due.
1.3 Nature of Guaranty. This Guaranty is an irrevocable, absolute,
continuing guaranty of payment and performance and is not a guaranty of
collection. This Guaranty may not be revoked by Guarantor and shall continue to
be effective with respect to any Guaranteed Obligations arising or created
after any attempted revocation by Guarantor. The fact that at any time or from
time to time the Guaranteed Obligations may be increased or reduced shall not
release or discharge the obligation of Guarantor to Lessor with respect to
Guaranteed Obligations. This Guaranty may be enforced by Lessor and any
subsequent owner of Lessor's interest under the Lease.
1.4 Payment by Guarantor. If all or any part of the Guaranteed
Obligations is not paid when due, Guarantor shall immediately upon demand by
Lessor pay in lawful money of the United States of America the amount due on
the Guaranteed Obligations to Lessor at Lessor's address as set forth herein.
Such demand(s) may be made at any time coincident with or after the time for
payment of all or part of the Guaranteed Obligations, and may be made from time
to time with respect to the same or different items of Guaranteed Obligations.
Such demand shall be deemed made, given and received in accordance with the
notice provisions hereof.
1.5 No Duty to Pursue Others. It shall not be necessary for Lessor
(and Guarantor hereby waives any rights which Guarantor may have to require
Lessor), in order to enforce such payment by Guarantor, first to (i) institute
suit or exhaust its remedies against Lessee or others liable under the Lease or
the Guaranteed Obligations or any other person, (ii) enforce Lessor's rights
against any collateral which shall ever have been given to secure Lessee's
obligations under the Lease, (iii) enforce Lessor's rights against any other
guarantors of the Guaranteed Obligations, (iv) join Lessee or any others liable
on the Guaranteed Obligations in any action seeking to enforce this Guaranty,
or (v) resort to any other means of obtaining payment of the Guaranteed
Obligations. Lessor shall not be required to mitigate damages or take any other
action to reduce, collect or enforce the Guaranteed Obligations.
1.6 Waivers. Guarantor agrees to the provisions of the Lease, and
hereby waives notice of (i) acceptance of this Guaranty, (ii) any amendment or
extension of the Lease, (iii) the occurrence of any breach by Lessee or Event
of Default as defined in the Lease, (iv) Lessor's transfer or disposition of
its interest under the Lease, or any part thereof, or (v) any other action at
any time taken or omitted by Lessor, and, generally, all demands and notices of
every kind in connection with this Guaranty, the Lease, or relating to any of
the Guaranteed Obligations.
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1.7 Payment of Expenses. If Guarantor fails to timely perform any
provisions of this Guaranty, Guarantor shall, immediately upon demand by
Lessor, pay Lessor all costs and expenses (including court costs and reasonable
attorneys' fees) incurred by Lessor in the enforcement hereof or the
preservation of Lessor's rights hereunder. The covenant contained in this
section shall survive the payment and performance of the Guaranteed
Obligations.
1.8 Effect of Bankruptcy. If, pursuant to any insolvency, bankruptcy,
reorganization, receivership or other debtor relief law, or any judgment, order
or decision thereunder, Lessor must rescind or restore any payment, or any part
thereof, received by Lessor in satisfaction of the Guaranteed Obligations, as
set forth herein, any prior release or discharge from the terms of this
Guaranty given to Guarantor by Lessor shall be without effect, and this
Guaranty shall remain in full force and effect. Lessee and Guarantor intend
that Guarantor's obligations hereunder shall not be discharged except by
Guarantor's performance of such obligations and then only to the extent of such
performance.
1.9 Deferment of Rights of Subrogation, Reimbursement and
Contribution.
(a) Notwithstanding any payment or payments made by Guarantor
hereunder, Guarantor will not assert or exercise any right of Lessor or of
Guarantor against Lessee to recover the amount of any payment made by Guarantor
to Lessor by way of subrogation, reimbursement, contribution, indemnity, or
otherwise arising by contract or operation of law, and Guarantor shall not have
any right of recourse to or any claim against assets or property of Lessee,
whether or not the obligations of Lessee have been satisfied, all of rights
being herein expressly waived by Guarantor. If any amount shall nevertheless be
paid to Guarantor by Lessee prior to payment in full of the Obligations
(hereinafter defined), such amount shall be held in trust for the benefit of
Lessor and shall forthwith be paid to Lessor to be credited and applied to the
Obligations, whether matured or unmatured. The provisions of this paragraph
shall survive the termination of this Guaranty, and any satisfaction and
discharge of Lessee by virtue of any payment, court order or any applicable
law.
(b) Notwithstanding the provisions of Section 1.9(a), Guarantor
shall be entitled to (i) all rights of subrogation otherwise provided by
applicable law in respect of any payment it may make or be obligated to make
under this Guaranty and (ii) all claims it would have against Guarantor in the
absence of Section 1.9(a) and to assert and enforce same, in each case on and
after, but at no time prior to, the date (the "Subrogation Trigger Date") which
is 91 days after the date on which all sums owed to Lessor under the Lease (the
"Obligations") have been paid in full, if and only if the existence of
Guarantor's rights under this Section 1.9(b) would not make Guarantor a
creditor (as defined in the United States Bankruptcy Code [the "Bankruptcy
Code"]) of Lessee or any other Guarantor in any insolvency, bankruptcy,
reorganization or similar proceeding commenced on or prior to the Subrogation
Trigger Date.
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1.10 Bankruptcy Code Waiver. The parties intend that Guarantor shall
not be deemed to be a "creditor" (as defined in Section 101 of the Bankruptcy
Code) of Lessee by reason of the existence of this Guaranty, in the event that
Lessee becomes a debtor in any proceeding under the Bankruptcy Code, and in
connection herewith, Guarantor waives any such right as a "creditor" under the
Bankruptcy Code. After Lessee's obligations under the Lease are discharged in
full and there shall be no obligations or liabilities under this Guaranty
outstanding, this waiver shall be deemed to be terminated.
1.11 Lessee. The term "Lessee" as used herein shall include any new or
successor corporation, association, partnership (general or limited), joint
venture, trust or other individual or organization formed as a result of any
merger, reorganization, sale, transfer, devise, gift or bequest of Lessee or
any interest in Lessee.
ARTICLE II
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR'S OBLIGATIONS
Guarantor's obligations under this Guaranty shall not be released,
diminished, impaired, reduced or adversely affected by any of the following,
and Guarantor waives any common law, equitable, statutory or other rights
(including without limitation rights to notice) which Guarantor might otherwise
have as a result any of the following:
(a) Modifications. Any renewal, extension, or modification of
all or any part of the Guaranteed Obligations or the Lease; provided Guarantor
is notified of same.
(b) Adjustment. Any adjustment, indulgence, forbearance or
compromise that might be granted or given by Lessor to Lessee or any Guarantor.
(c) Condition of Lessee or Guarantor. The insolvency,
bankruptcy, arrangement, adjustment, composition, liquidation, disability,
dissolution or lack of power of Lessee, Guarantor or any other party at any
time liable for the payment of all or part of the Guaranteed Obligations; or
any dissolution of Lessee or Guarantor, or any sale, lease or transfer of any
or all of the assets of Lessee or Guarantor, or any changes in the
shareholders, partners or members of Lessee or Guarantor; or any reorganization
of Lessee or Guarantor.
(d) Invalidity of Guaranteed Obligations. The invalidity,
illegality or unenforceability of all or any part of the Guaranteed
Obligations, or any document or agreement executed in connection with the
Guaranteed Obligations, for any reason whatsoever, including without limitation
the fact that (i) the Guaranteed Obligations, or any part thereof, exceeds the
amount permitted by law, (ii) the act of creating the Guaranteed Obligations or
any part thereof is ultra ▇▇▇▇▇, (iii) the officers or representatives
executing the Lease or otherwise creating the Guaranteed Obligations acted in
excess of their authority, (iv) the Guaranteed Obligations violate applicable
usury laws, (v) Lessee has valid defenses, claims or offsets (whether at law,
in equity
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or by agreement) which render the Guaranteed Obligations wholly or partially
uncollectible from Lessee, (vi) the creation, performance or repayment of the
Guaranteed Obligations (or the execution, delivery and performance of any
document or instrument representing part of the Guaranteed Obligations or
executed in connection with the Guaranteed Obligations, or given to secure the
repayment of the Guaranteed Obligations) is illegal, uncollectible or
unenforceable, or (vii) the Lease has been forged or otherwise are irregular or
not genuine or authentic, it being agreed that Guarantor shall remain liable
hereon regardless of whether Lessee or any other person be found not liable on
the Guaranteed Obligations or any part thereof for any reason.
(e) Release of Obligors. Any full or partial release of the
liability of Lessee on the Guaranteed Obligations, or any part thereof, or of
any co-guarantors, or any other person or entity now or hereafter liable,
whether directly or indirectly, jointly, severally, or jointly and severally,
to pay, perform, guarantee or assure the payment of the Guaranteed Obligations,
or any part thereof, it being recognized, acknowledged and agreed by Guarantor
that Guarantor may be required to pay the Guaranteed Obligations in full
without assistance or support of any other party, and Guarantor has not been
induced to enter into this Guaranty on the basis of a contemplation, belief,
understanding or agreement that other parties will be liable to pay or perform
the Guaranteed Obligations, or that Lessor will look to other parties to pay or
perform the Guaranteed Obligations.
(f) Offset. The Lease, the Guaranteed Obligations and the
liabilities and obligations of Guarantor to Lessor hereunder, shall not be
reduced, discharged or released because of or by reason of any existing or
future right of offset, claim or defense of Lessee against Lessor, or any other
party, or against payment of the Guaranteed Obligations, whether such right of
offset, claim or defense arises in connection with the Guaranteed Obligations
(or the transactions creating the Guaranteed Obligations) or otherwise.
(g) Merger. The reorganization, merger or consolidation of
Lessee into or with any other corporation or entity.
(h) Preference. Any payment by Lessee to Lessor is held to
constitute a preference under bankruptcy laws, or for any reason Lessor is
required to refund such payment or pay such amount to Lessee or someone else.
(i) Other Actions Taken or Omitted. Any other action taken or
omitted to be taken with respect to the Lease, the Guaranteed Obligations,
whether or not such action or omission prejudices Guarantor or increases the
likelihood that Guarantor will be required to pay the Guaranteed Obligations
pursuant to the terms hereof, it is the unambiguous and unequivocal intention
of Guarantor that Guarantor shall be obligated to pay the Guaranteed
Obligations when due, notwithstanding any occurrence, circumstance, event,
action, or omission whatsoever, whether or not contemplated, and whether or not
otherwise or particularly described herein, which obligation shall be deemed
satisfied only upon the full and final payment and satisfaction of the
Guaranteed Obligations.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations. To induce Lessor to enter into the Lease with
Lessee, Guarantor represents and warrants to Lessor as follows:
(a) Benefit. Guarantor is an affiliate of Lessee, is the owner of
a direct or indirect interest in Lessee, and has received, or will receive,
direct or indirect benefit from the making of this Guaranty with respect to the
Guaranteed Obligations.
(b) Familiarity and Reliance. Guarantor is familiar with, and has
independently reviewed books and records regarding, the financial condition of
Lessee; however, Guarantor is not relying on such financial condition or the
collateral as an inducement to enter into this Guaranty.
(c) No Representation by Lessor. Neither Lessor nor any other
party has made any representation, warranty or statement to Guarantor in order
to induce Guarantor to execute this Guaranty.
(d) Guarantor's Financial Condition. As of the date hereof, and
after giving effect to this Guaranty and the contingent obligation evidenced
hereby, Guarantor is, and will be, solvent, and has and will have assets which,
fairly valued, exceed its obligations, liabilities (including contingent
liabilities) and debts, and has and will have property and assets sufficient to
satisfy and repay its obligations and liabilities.
(e) Legality. The execution, delivery and performance by Guarantor
of this Guaranty and the consummation of the transactions contemplated
hereunder do not, and will not, contravene or conflict with any law, statute or
regulation whatsoever to which Guarantor is subject or constitute a default (or
an event which with notice or lapse of time or both would constitute a default)
under, or result in the breach of, any indenture, mortgage, deed of trust,
charge, lien, or any contract, agreement or other instrument to which Guarantor
is a party or which may be applicable to Guarantor. This Guaranty is a legal
and binding obligation of Guarantor and is enforceable in accordance with its
terms, except as limited by bankruptcy, insolvency or other laws of general
application relating to the enforcement of creditors' rights.
(f) Review of Documents. Guarantor has examined the Lease.
3.2 Survival. All representations and warranties made by Guarantor
herein shall survive the execution hereof.
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ARTICLE IV
SUBORDINATION OF CERTAIN INDEBTEDNESS
4.1 Subordination of All Guarantor Claims. As used herein, the term
"Guarantor Claims" shall mean all debts and liabilities of Lessee to Guarantor,
whether such debts and liabilities now exist or are hereafter incurred or
arise, or whether the obligations of Lessee thereon be direct, contingent,
primary, secondary, several, joint and several, or otherwise, and irrespective
of whether such debts or liabilities be evidenced by note, contract, open
account, or otherwise, and irrespective of the person or persons in whose favor
such debts or liabilities may, at their inception, have been, or may hereafter
be created, or the manner in which they have been or may hereafter be acquired
by Guarantor. The Guarantor Claims shall include without limitation all rights
and claims of Guarantor against Lessee (arising as a result of subrogation or
otherwise) as a result of Guarantor's payment of all or a portion of the
Guaranteed Obligations to the extent the provisions of Article II(f) hereof are
unenforceable. Upon the occurrence of an Event of Default or the occurrence of
an event which would, with the giving of notice or the passage of time, or
both, constitute an Event of Default, Guarantor shall not receive or collect,
directly or indirectly, from Lessee or any other party any amount upon the
Guarantor Claims.
4.2 Claims in Bankruptcy. In the event of receivership, bankruptcy,
reorganization, arrangement, debtor's relief, or other insolvency proceedings
involving Guarantor as debtor, Lessor shall have the right to prove its claim
in any such proceeding so as to establish its rights hereunder and receive
directly from the receiver, trustee or other court custodian dividends and
payments which would otherwise be payable upon Guarantor Claims. Guarantor
assigns such dividends and payments to Lessor. Should Lessor receive, for
application upon the Guaranteed Obligations, any such dividend or payment which
is otherwise payable to Guarantor, and which, as between Lessee and Guarantor,
shall constitute a credit upon the Guarantor Claims, then upon payment to
Lessor in full of the Guaranteed Obligations, Guarantor shall become subrogated
to the rights of Lessor to the extent that such payments to Lessor on the
Guarantor Claims have contributed toward the liquidation of the Guaranteed
Obligations, and such subrogation shall be with respect to that proportion of
the Guaranteed Obligations which would have been unpaid if Lessor had not
received dividends or payments upon the Guarantor Claims.
4.3 Payments Held in Trust. Notwithstanding anything to the contrary
in this Guaranty, if Guarantor should receive any funds, payments, claims or
distributions which are prohibited by this Guaranty, Guarantor agrees to hold
in trust for Lessor an amount equal to the amount of all funds, payments,
claims or distributions so received, and agrees that it shall have absolutely
no dominion over the amount of such funds, payments, claims or distributions so
received except to pay them promptly to Lessor, and Guarantor covenants
promptly to pay the same to Lessor.
4.4 Liens Subordinate. Any liens, security interests, judgment liens,
charges or other encumbrances upon Lessee's assets securing payment of the
Guarantor Claims shall be and remain inferior and subordinate to any liens,
security interests, judgment liens, charges or other encumbrances upon Lessee's
assets securing payment of the Guaranteed Obligations, regardless
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of whether such encumbrances in favor of Guarantor or Lessor presently exist or
are hereafter created or attach. Without the prior written consent of Lessor,
Guarantor shall not (a) exercise or enforce any creditor's right it may have
against Lessee, or (b) foreclose, repossess, sequester or otherwise take steps
or institute any action or proceedings (judicial or otherwise, including
without limitation the commencement of, or joinder in, any liquidation,
bankruptcy, rearrangement, debtor's relief or insolvency proceeding) to enforce
any liens, mortgages, deeds of trust, security interest, collateral rights,
judgments or other encumbrances on assets of Lessee held by Guarantor.
ARTICLE V
MISCELLANEOUS
5.1 Waiver. No failure to exercise, and no delay in exercising, on the
part of Lessor, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right. The rights of Lessor
hereunder shall be in addition to all other rights provided by law. No
modification or waiver of any provision of this Guaranty, nor consent to
departure therefrom, shall be effective unless in writing and no such consent
or waiver shall extend beyond the particular case and purpose involved. No
notice or demand given in any case shall constitute a waiver of the right to
take other action in the same, similar or other instances without such notice
or demand.
5.2 Notices. Any notice, demand, statement, request or consent made
hereunder shall be in writing and shall be deemed to be received by the
addressee on the day such notice is tendered to a nationally recognized
overnight delivery service or on the third day following the day such notice is
deposited with the United States Postal Service first class certified mail,
return receipt requested, in either instance, addressed to the address, as set
forth below, of the party to whom such notice is to be given, or to such other
address as either party shall in like manner designate in writing. The
addresses of the parties are as follows:
Guarantor:
Crescent Operating, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Lessor:
Crescent Real Estate Funding III, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
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5.3 Governing Law; Jurisdiction. This Guaranty shall be governed by
and construed in accordance with the laws of the State in which the Leased
Property is located and the applicable laws of the United States of America.
Guarantor hereby irrevocably submits to the jurisdiction of any court of
competent jurisdiction located in the state in which the Leased Property is
located in connection with any proceeding out of or relating to this Guaranty.
5.4 Invalid Provisions. If any provision of this Guaranty is held to
be illegal, invalid, or unenforceable under present or future laws effective
during the term of this Guaranty, such provision shall be fully severable and
this Guaranty shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Guaranty, and the
remaining provisions of this Guaranty shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Guaranty, unless such continued effectiveness of this
Guaranty, as modified, would be contrary to the basic understandings and
intentions of the parties as expressed herein.
5.5 Amendments. This Guaranty may be amended only by an instrument in
writing executed by the party or an authorized representative of the party
against whom such amendment is sought to be enforced.
5.6 Parties Bound; Assignment. This Guaranty shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
assigns and legal representatives; provided, however, that Guarantor may not,
without the prior written consent of Lessor, assign any of its rights, powers,
duties or obligations hereunder.
5.7 Headings. Section headings are for convenience of reference only
and shall in no way affect the interpretation of this Guaranty.
5.8 Recitals. The recital and introductory paragraphs hereof are a
part hereof, form a basis for this Guaranty and shall be considered prima facie
evidence of the facts and documents referred to therein.
5.9 Counterparts. This Guaranty may be executed in as many
counterparts as may be convenient or required. It shall not be necessary that
the signature or acknowledgment of, or on behalf of, each party, or that the
signature of all persons required to bind any party, or the acknowledgment of
such party, appear on each counterpart. All counterparts shall collectively
constitute a single instrument. It shall not be necessary in making proof of
this Guaranty to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, and the respective
acknowledgments of, each of the parties hereto. Any signature or acknowledgment
page to any counterpart may be detached from such counterpart without impairing
the legal effect of the signatures or acknowledgments thereon and thereafter
attached to another counterpart identical thereto except having attached to it
additional signature or acknowledgment pages.
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5.10 Rights and Remedies. The rights of Lessor hereunder shall be
cumulative of any and all other rights that Lessor may ever have against
Guarantor. The exercise by Lessor of any right or remedy hereunder or under any
other instrument, or at law or in equity, shall not preclude the concurrent or
subsequent exercise of any other right or remedy.
5.11 ENTIRETY. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF
GUARANTOR AND LESSOR WITH RESPECT TO GUARANTOR'S GUARANTY OF THE GUARANTEED
OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR AND LESSOR AS A
FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF
DEALING BETWEEN GUARANTOR AND LESSOR, NO COURSE OF PERFORMANCE, NO TRADE
PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE
USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY
AGREEMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND LESSOR.
5.12 Special State Provisions (Texas). This Guaranty shall be
effective as a waiver of, and Guarantor expressly waives, any and all rights to
which Guarantor may otherwise have been entitled under any suretyship laws in
effect from time to time, including (without limitation) any rights pursuant to
Rule 31 of the Texas Rules of Civil Procedure, Section 17.001 of the Texas
Civil Practice and Remedies Code, and Chapter 34 of the Texas Business and
Commerce Code.
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EXECUTED as of the day and year first above written.
GUARANTOR:
CRESCENT OPERATING, INC., a Delaware
corporation
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
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EXHIBIT A
TO
GUARANTY OF LEASE
Lease Agreement covering a hotel facility and related assets located in
Bernalillo County, New Mexico, and known as "Hyatt Regency Albuquerque" dated
as of December 19, 1995, the lessee's interest under which is currently held by
ROSESTAR SOUTHWEST, LLC, a Delaware limited liability company, and the lessor's
interest under which is currently held by CRESCENT REAL ESTATE FUNDING II, L.P,
a Delaware limited partnership, as such Lease Agreement is or has been amended
and assigned from time to time.
Amended and Restated Lease Agreement covering a hotel facility and related
assets located in Eagle County, Colorado, and known as the "Hyatt Regency
Beaver Creek", dated as of January 1, 1996, the lessee's interest under which
is currently held by ROSESTAR SOUTHWEST, LLC, a Delaware limited liability
company, and the lessor's interest under which is currently held by CRESCENT
REAL ESTATE FUNDING II, L.P, a Delaware limited partnership, as such Amended
and Restated Lease Agreement is or has been amended and assigned from time to
time.
Lease Agreement covering a resort facility and related assets located in
Berkshire County, Massachusetts, and known as the "Canyon Ranch-Lenox", dated
as of December 11, 1996, the lessee's interest under which is currently held by
WINE COUNTRY HOTEL, LLC, a Delaware limited liability company, d/b/a VINTAGE
RESORTS, LLC, and the lessor's interest under which is currently held by
CRESCENT REAL ESTATE FUNDING VI, L.P, a Delaware limited partnership, as such
Lease Agreement is or has been amended and assigned from time to time.
Lease Agreement covering a hotel facility/resort and related assets located in
Sonoma County, California, and known as the "Sonoma Mission Inn and Spa", dated
as of November 18, 1996, between WINE COUNTRY HOTEL, LLC, a Delaware limited
liability company, as lessee, and CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership, as lessor, as such Lease Agreement
is amended and assigned from time to time.
Lease Agreement covering a resort facility and related assets located in Pima
County, Arizona, and known as the "Canyon Ranch-Tucson", dated as of July 26,
1996, the lessee's interest under which is currently held by CANYON RANCH
LEASING, L.L.C., an Arizona limited liability company, and the lessor's
interest under which is currently held by CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership, as such Lease Agreement is or has
been amended and assigned from time to time.
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Amended and Restated Lease Agreement covering a hotel facility and related
assets located in Denver County, Colorado, and known as the "Denver Marriott
City Center", dated as of June 30, 1995, between ROSESTAR MANAGEMENT, LLC, a
Delaware limited liability company, as lessee, and CRESCENT REAL ESTATE
EQUITIES LIMITED PARTNERSHIP, a Delaware limited partnership, as lessor, as
such Amended and Restated Lease Agreement is amended and assigned from time to
time.
Lease Agreement covering a golf club and related facilities located in Sonoma
County, California, and known as the "Sonoma Golf Club", dated as of October
13, 1998, between WINE COUNTRY GOLF CLUB, INC., a Texas corporation, as lessee,
and CRESCENT REAL ESTATE EQUITIES LIMITED PARTNERSHIP, a Delaware limited
partnership, as lessor, as such Lease Agreement is amended and assigned from
time to time.
Lease Agreement covering a hotel facility and related assets located in
Monterey County, California, and known as the "Ventana Inn or the Ventana
Country Inn", dated as of December 19, 1997, between WINE COUNTRY HOTEL, LLC, a
Delaware limited liability company, as lessee, and CRESCENT REAL ESTATE
EQUITIES LIMITED PARTNERSHIP, a Delaware limited partnership, as lessor, as
such Lease Agreement is amended and assigned from time to time.
Lease Agreement covering a hotel and apartment facility and related assets
located in ▇▇▇▇▇▇ County, Texas, and known as "The Four Seasons Hotel" and
"Four Seasons Place Apartments", dated as of September 22, ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ EQUITIES LIMITED PARTNERSHIP, a Delaware limited
partnership, as lessor, and COI HOTEL GROUP, INC., a Texas corporation, as
lessee, as such Lease Agreement is amended and assigned from time to time.
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