1
EXHIBIT 10.1
FIRST LEASE AMENDMENT
This First Lease Amendment is entered into this 29th day of January, 1997,
by and between SAFETY HARBOR SPA & FITNESS CENTER, Inc., a Florida corporation
("Lessor") and SAFETY HARBOR MANAGEMENT COMPANY, LTD., a Florida limited
partnership ("Lessee") to amend the Lease between Lessor and Lessee dated June
14, 1995.
Lessor and Lessee hereby agree to modify that certain Lease dated June 14,
1995 between Lessor and Lessee as follows:
I. Article 2 is hereby deleted and the following substituted therefore:
Article 2
---------
Term
2.1 The term of this Lease shall begin June 1, 1995 and shall end May
31, 2000, unless terminated or extended by mutual consent of the parties.
2.2 There shall be no right to terminate the Lease except in the event
of Lessee default during the term of the Lease.
2.3 For the purposes of the Lease as amended hereby, all references to
the Lease term, the Basic Term or the duration of the Lease, including those
contained in this First Lease Amendment and in Article 9.3 and in Articles 14
and 15 of the Lease shall mean the term of the Lease as described in Paragraph
2.1 above and all references to lease extensions or renewal terms in the Lease
are hereby deleted.
II. Article 3, Paragraph 3.1 is hereby deleted and the following
substituted therefore:
Article 3
---------
Rent Payments
3.1 Rent Payments. The Rent Payments for the Leased Premises shall
be as described hereafter, plus applicable sales tax, and shall be paid monthly
by the Lessor to the Lessee in advance on the first day of each month during the
Lease:
2
Period Monthly Payment
June 1, 1995 - June 30, 1996 $100,000.00
July 1, 1996 - May 31, 1999 31,667.00
June 1, 1999 - May 31, 2000 -0-
III. The last two sentences of the first paragraph of Article 5,
Paragraph 5.1 are hereby deleted and the following substituted therefore:
Article 5
---------
5.1 Notwithstanding anything stated in this Paragraph, Lessee must
obtain Lessor's approval for Lessee's entering into any contract, lease or other
agreement that extends beyond May 31, 2000.
IV. Article 7.4 is hereby modified by deleting the first two sentences
thereof and substituting the following therefore:
7.4 Lessee agrees to make capital improvements which are not less than
Three Million Dollars ($3,000,000.00) during the term of the Lease, with a
minimum expenditure of Four Hundred Fifty Thousand Dollars ($450,000.00) during
the first year; a minimum total cumulative expenditure of Nine Hundred Thousand
Dollars ($900,000.00) by the end of the second year; a minimum total cumulative
expenditure of One Million Three Hundred Fifty Thousand Dollars ($1,350,000.00)
by the end of the third year; a minimum total cumulative expenditure of One
Million Eight Hundred Thousand Dollars ($1,800,000.00) by the end of the fourth
year; and a minimum total cumulative expenditure of Three Million Dollars
($3,000,000.00) by the end of the Lease term, namely by May 31, 2000.
Notwithstanding the foregoing, if the Option to Purchase described in Article 13
hereafter is exercised prior to May 31, 2000, Lessee shall only be obligated to
make the capital improvements called for up to the point of the exercise of the
Option to Purchase prior to closing on the Leased Premises.
V. Article 11 is hereby deleted.
VI. Article 12 is hereby deleted and the following substituted
therefore:
2
3
Article 12
----------
Sale of Premises During Lease Term
12.1 Provided the Lessee shall not be in default hereunder, the Lessor
may not sell the Property during the Lease term.
VII. Article 13, Paragraph 13.1 is hereby deleted and the following
substituted therefore:
Article 13
----------
Option to Purchase
13. 1.a. Option Payments. The Lessor grants to the Lessee an
exclusive option to purchase the Property ("Option to Purchase") during the
Lease term in consideration for Lessee's payment to Lessor of the following
payments ("Option Payments") to be paid monthly by Lessee to Lessor in advance
on the first day of each month during the Lease:
Period Monthly Option Payment
July 1, 1996 - May 31, 1999 $ 68,333.00
June 1, 1999 - May 31, 2000 60,000.00
In the event the Option to Purchase is exercised prior to May 31, 2000, any
Option Payment credit shall be based on the Option Payments actually paid
through the date of closing. Failure of the Lessee to make said Option
Payments shall constitute a default in the required Rent Payments.
13. 1.b. In the event Lessee exercises the Option to Purchase, closing
of the purchase shall occur on a date elected by the Lessee in writing, which
date shall be no earlier than May 31, 1999 and no later than May 31, 2000
unless the parties mutually agree to an earlier closing. The Lessee shall give
the Lessor at least one hundred twenty (120) days advance written notice of its
intention to exercise the Option to Purchase. The purchase price shall be
Eleven Million Four Hundred Thousand Dollars ($11,400,000.00) which shall be
payable in cash at closing, less the total amount of all Option Payments which
Lessee shall have made to Lessor.
13.1.c. Earnout Arrangement. Following Lessee's purchase of the
Leased Premises, if the Option to Purchase is exercised, Lessee agrees to pay to
Lessor the additional sum of Eight Million Dollars ($8,000,000.00) in one of the
two alternate methods described hereafter:
3
4
i. Minimum Annual Payment. Commencing on May 31, 2002 and
annually on May 31 of each year thereafter, Lessee shall pay to Lessor a minimum
payment ("Minimum Payment") which in the year 2002 shall be One Hundred Thousand
Dollars ($100,000.00), in the year 2003 shall be One Hundred Fifty Thousand
Dollars ($150,000.00) and in all years thereafter shall be Two Hundred Thousand
Dollars ($200,000.00). Any Minimum Payment or Payments made in a given year(s)
shall count toward and be a credit against the amount of the next Earned Payment
due as said Earned Payment is calculated and described in Paragraph 13.l.c.ii
hereafter. For example, if a Minimum Payment of $200,000 has been made for two
consecutive years and the Earned Payment calculation in year three results in
an Earned Payment of $1,000,000, then a net Earned Payment of $600,000 would be
made for that year. Any unused Minimum Payment credit shall be carried over and
applied to the following Earned Payment(s) until used in full.
ii. Earned Payment. If the payments described in this
sub-paragraph are greater than the Minimum Payments described in Paragraph
13.1.c.i above, Lessor shall pay to Lessee commencing on May 31, 2002 and
annually on May 31 of each and every year thereafter an earned payment ("Earned
Payment") calculated as follows: For the purposes of determining the amount of
Earned Payment, if any, a base value ("Base Value") is hereby set at Thirteen
Million Dollars ($13,000,000.00). A calculated value ("Calculated Value") shall
be determined annually beginning for the year ending December 3l, 2001. Such
Calculated Value shall be determined by deducting from the net operating profit
of the Leased Premises ("Net Operating Profit") for the year ending December
31, 2001 a capital reserve equal to four percent (4%) of the total gross
revenue ("Total Gross Revenue") for that specific year, so long as the Lessee's
cumulative capital expenditures following the closing date are equal to or
greater than four percent (4%) of the cumulative Total Gross Revenue for the
same period. If such cumulative capital expenditures by Lessee are less than
four percent (4%) of the cumulative Total Gross Revenue since the closing date,
then the amount of capital reserve deducted will be limited to the actual
amount spent in that specific year. Said net sum shall then be multiplied by
nine (9) to determine the Calculated Value. The Earned Payment due Lessor in
any year shall be determined by deducting the Base Value from the Calculated
Value and multiplying the net sum by thirty-five percent (35%) and then
deducting the
4
5
cumulative Minimum and Earned Payments made in previous years. For the purposes
of this formula, Total Gross Revenue and Net Operating Profit shall be as
defined in Paragraph 13.l.c.iii hereafter. If the Earned Payment exceeds the
Minimum Payment, Lessee shall pay the amount of Earned Payment to Lessor. The
same calculation of the Earned Payment due shall be made annually for the year
ending December 31, 2002 and each and every year thereafter using the same Base
Value and an annually determined Calculated Value based on the Total Gross
Revenue and the Net Operating Profit for the preceding year ending December
31st until the entire Eight Million Dollars ($8,000,000.00) has been paid to
Lessor.
iii.a Total Gross Revenue shall be defined as the gross
revenue generated from the existing hospitality operations of the Leased
Premises by Lessee determined in accordance with generally accepted accounting
principles.
iii.b Net Operating Profit shall be defined as the amount of
net income generated from the existing hospitality operations of the Leased
Premises by Lessee in accordance with generally accepted accounting principles.
The Net Operating Profit will not include any deduction for management fees over
and above the cost of on-site management and services provided, or any deduction
for depreciation or amortization expense, interest expense or any item of income
or expense classified as non-recurring by generally accepted accounting
principles. The attached schedule shows an example of the calculation of Net
Operating Profit in line with the above.
iv. For the purposes of determining the amount of the Earned
Payment, the Lessee shall provide the Lessor on or before May 31 of each year a
statement of income and a calculation of the Earned Payment for the prior year
certified by the general partner of the Lessee.
v. The sums due to Lessor pursuant to this Earnout
Arrangement shall be a general, unsecured obligation of the Lessee, with no
encumbrance on the Property. However, South Seas Properties Company Limited
Partnership, an Ohio limited partnership shall execute an unsecured guarantee of
this Earnout Arrangement at closing in the event the Option to Purchase is
exercised.
13.1.d. Sale of Leased Premises by Lessee. Unless otherwise agreed to
in writing by the Lessor, any unpaid portion of the earnout fee described in
Paragraph 13.1.c above shall be due upon the sale of the Leased Premises by the
Lessee following its exercise of the Option to Purchase.
5
6
VIII. In all other respects the Lease Agreement dated June 14, 1995
is hereby ratified and confirmed.
IN WITNESS WHEREOF the parties have executed this Lease as of the date
first above written.
SAFETY HARBOR MANAGEMENT COMPANY,
LTD., a Florida Limited Partnership
By: S.S. Resort Management, L.C., its general partner
By: /s/ Robert M. Taylor
----------------------------------------------
Robert M. Taylor, Chairman and Manager
- ----------------------
Witness
- ----------------------
Witness
SAFETY HARBOR SPA & FITNESS CENTER, INC.
By: /s/ Roger Kumar
----------------------------------------------
Roger Kumar, President
- ----------------------
Witness
- ----------------------
Witness
6
7
SOUTH SEAS PROPERTIES COMPANY LIMITED
PARTNERSHIP, an Ohio limited partnership
By: T&T Resorts, L.C., a Florida limited liability
Company, its general partner
By: /s/ Robert M. Taylor
------------------------------------------------
Robert M. Taylor
- -----------------------
Witness
- -----------------------
Witness
STATE OF FLORIDA )
)
COUNTY OF LEE )
The foregoing instrument was acknowledged before me this 28th day of
January, 1997, by ROBERT M. TAYLOR, Chairman and Manager of S.S. Resort
Management, L.C., who did not take an oath.
EDWINA L. VEILLETTE
MY COMMISSION # CC 307480
EXPIRES: AUGUST 12, 1997 /S/ Edwina L. Veillette
BONDED THRU NOTARY PUBLIC UNDERWRITERS ------------------------
Edwina L. Veillette, Notary Public
My Commission expires:
/X/ Personally Known OR / /Produce Identification
Type of Identification Produce
-----------------------------
7
8
STATE OF FLORIDA )
)
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this 29 day of
January, 1997, by ROGER KUMAR, President of Safety Harbor Spa & Fitness Center,
Inc., who did not take an oath.
/S/ Gwendolyn D. Storm
-----------------------
Gwendolyn D. Storm, Notary Public
GWENDOLYN D. STORM
MY COMMISSION # CC 372097
EXPIRES: JUNE 8, 1998
My Commission expires: BONDED THRU NOTARY PUBLIC UNDERWRITERS
/ / Personally Known OR / / Produced Identification
Type of Identification Produced
--------------------------------
STATE OF FLORIDA )
)
COUNTY OF LEE )
The foregoing instrument was acknowledged before me this 28th day of
January, 1997, by ROBERT M. TAYLOR, Manager of T&T Resorts, L. C., a Florida
limited liability company, who did not take an oath.
EDWINA L. VEILLETTE
MY COMMISSION # CC 307480
EXPIRES: AUGUST 12, 1997 /S/ Edwina L. Veillette
BONDED THRU NOTARY PUBLIC UNDERWRITERS -----------------------
Edwina L. Veillette, Notary Public
My commission expires:
/X/ Personally Known OR / /Produced Identification
Type of Identification Produced
--------------------------------
8