Exhibit 10.12
2/13/96
GROUND LEASE
1. Parties: Habendum.
This Ground Lease is made as of the 1st day of July, 1996, by and
between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, hereinafter
collectively referred to as Landlord, and Promus Hotels, Inc., a Delaware
corporation, hereinafter referred to as Tenant. Landlord hereby leases to
Tenant, and Tenant hereby hires from Landlord the Premises hereinafter
described.
2. Premises.
The "Premises" consist of: approximately 4.0 acres of real property
located on Swedesford Road in Malvern, East Whiteland Township, PA, as more
fully described on Exhibit A attached hereto, together with any buildings and
other improvements hereafter constructed thereon (such buildings and other
improvements hereafter constructed are hereinafter called the "Improvements");
any and all interests of Landlord in streets adjacent thereto; and any and all
other rights and interests of Landlord appurtenant to said parcel and streets.
"Ground Leasehold Estate" shall mean all of Tenant's rights and interests under
this Ground Lease. "Registry of Deeds" shall mean the land records office or
offices in which the deed of the Premises is recorded, as identified on Exhibit
A.
Landlord represents and warrants that Landlord has good and clear
record and marketable title to the Premises, subject only to encumbrances
identified on Exhibit A. Landlord covenants and agrees not to grant or permit or
suffer to attach to the Premises any easement, restriction, lien or other
encumbrance affecting the title to the Premises
during the Term of this Ground Lease other than restrictions and other
encumbrances in the name of Landlord requested by Tenant. Landlord shall have
thirty (30) days to bond off or otherwise discharge any encumbrance suffered in
violation of the preceding sentence.
Tenant accepts the Premises "as is" and in their present condition.
Tenant hereby acknowledging that Tenant has not been influenced to enter into
this Ground Lease by, nor has Tenant relied upon, any warranties and
representations of Landlord concerning the physical condition of the Premises,
except as follows:
(a) No notice from any governmental body has been served upon Landlord
to date claiming any violation of any law, ordinance, code or regulation;
(b) No portion of the Premises has been condemned or otherwise taken by
public authority, and Landlord has no actual knowledge that any such
condemnation is threatened or contemplated;
(c) There are no actions, suits or proceedings pending, or to
Landlord's actual knowledge, threatened or contemplated which could have an
adverse affect upon the Premises; and
(d) No portion of the Premises has ever been used for the manufacture
or storage of hazardous waste, as defined by applicable state local or federal
law.
The "Original Term" shall be a period of thirty (30) years, commencing
upon the first day of the month following execution of this Ground Lease.
The term "Ground Lease Year" as used in this Ground Lease shall mean
each of the consecutive twelve-month periods of the Original Term or of any
Extension Term of this Ground Lease.
Tenant shall have the absolute and unconditional option to extend the
Term of this Ground Lease for one or more of three (3) successive ten (10) year
Extension Terms, each on all of the terms and conditions set forth in this
Ground Lease. Each such extension option shall be exercisable by written notice
from Tenant to Landlord given at least six (6) months before the commencement of
each such Extension Term.
4. Rent.
During the Term of this Ground Lease, Tenant shall pay rent to Landlord
at the address from time to time specified by Landlord pursuant to Paragraph 20,
absolutely net without assertion of any counterclaim, setoff, deduction or
defense and, except as otherwise expressly provided herein, without abatement,
diminution or reduction, in advance in monthly installments on the first day of
each month during the Term, in an amount equal to one-twelfth of the Annual Rent
specified in this Section.
The Annual Rent with respect to the first five (5) Ground Lease Years
of the Original Term shall be $100,000.
Upon every fifth (5th) anniversary of the commencement date of the
Original Term, the Annual Rent shall be adjusted to equal (i) the product of (A)
$100,000, multiplied by (B) a fraction, the numerator of which is the CPI, as
defined below, for the last full calendar month preceding such anniversary date
(the "Extension Index"), and the denominator of which is the CPI, as defined
below, for the last full calendar month preceding the commencement date of the
Original Term (the "Beginning Index"), but not to exceed an increase of fifteen
percent (15%), and in no event shall the Annual Rent be less than $100,000.
The "CPI" shall mean the Consumer Price Index for the Metropolitan
Philadelphia area. All items, 1982-84=100, as published by the U.S. Department
of Labor, or, if such
index is no longer published, the most nearly similar index which is published
by the U.S. Department of Labor.
5. Taxes; Assessments.
In the event the Premises is a portion of a larger tax parcel, Landlord
agrees to use its best efforts to have the Premises designated as a separate
parcel for taxing purposes so that the assessed valuation of the land and
buildings shall relate only to the land constituting the Premises and to the
buildings and improvements constructed on the Premises.
In the event the Premises is a portion of a larger tax parcel and the
Landlord is unable to have the Premises designated as a separate parcel for
taxing purposes so that taxes are assessed upon the larger tax parcel of which
the Premises is a portion, Tenant agrees to pay that portion of the taxes which
is reasonably attributable to the Premises, determined as follows:
A. In the event the taxes are identified or apportioned by the taxing
authorities or are identifiable or apportionable based on
valuation or other information furnished by the taxing authority
so that the portion of the taxes attributable to the value of the
land can be distinguished from the portion of the taxes
attributable to the value of the buildings, then as to that
portion of the taxes attributable to the value of the land. Tenant
will pay a percentage of such portion of the taxes determined by
dividing the area of the Premises by the total area of the
assessed parcel, and as to the portion of the taxes attributable
to the value of the buildings, Tenant will pay a percentage of
such portion of the taxes determined by dividing the gross floor
area of the
building on the Premises by the gross floor area of all buildings
located on the assessed parcel.
B. In the event the taxes are not identified or apportioned by the
taxing authority and are not identifiable or apportionable based
on valuation or other information furnished by the taxing
authority so that the portion of the taxes attributable to the
value of the land cannot be distinguished from the portion of the
taxes attributable to the value of the buildings, then as to all
taxes, Tenant will pay a percentage of the taxes determined by
dividing the area of the Premises by the total area of the
assessed parcel.
Landlord will notify Tenant in writing of any taxes which Tenant is
required to pay in accordance with the provisions of this Section. Such
notification shall be furnished to Tenant not less than twenty (20) days before
the date such taxes are due and shall be accompanied by a copy of the tax ▇▇▇▇.
Any taxes which Tenant is required to pay shall be paid by it no later than the
date on which such taxes are due unless the notification by Landlord is received
by Tenant less than twenty (20) days before the date on which such taxes are
due, in which event Tenant shall pay such taxes within twenty (20) days after
the date of such notification, and Landlord shall be responsible for the payment
of any penalties, interest or other charges imposed upon delinquent payment of
taxes. In the event the Premises is a portion of a larger tax parcel, then the
written notification by Landlord to Tenant of such taxes shall set forth (1) the
total taxes on the larger tax parcel accompanied by a copy of the tax ▇▇▇▇; (2)
whether the total taxes on the larger tax parcel are identifiable or
apportionable between land and buildings and if so, the amount of taxes,
attributable to the land and the amount of taxes attributable to buildings; and
(3)
Tenant's portion of the total taxes together with a statement showing how
Tenant's portion was calculated in accordance with this Section.
If Tenant fails to pay any taxes which it is required to pay within the
time period provided above, Landlord may, at its option, pay said taxes,
together with any and all penalties and said amount shall become immediately due
and payable as additional rent.
Tenant shall have the right in its own name, or in Landlord's name
where appropriate, but at its own cost and expense, to contest the amount or
legality of any taxes which it is obligated to pay hereunder and make
application for the reduction thereof, or any assessment upon which the same may
be based, and the Landlord agrees, at the request of Tenant, to execute or join
in the execution of any instruments or documents necessary in connection with
such contest or application. If Tenant shall contest such tax assessment, or
other imposition, the time within which Tenant shall be required to pay the same
shall be extended until such contest or application shall have been finally
determined, except that Tenant shall be responsible for any penalty imposed by
the taxing authority resulting from the late payment of taxes due to said
contest.
In no event shall Tenant be liable for payment of any income, estate or
inheritance taxes imposed upon Landlord or the estate of Landlord. Tenant shall
not pay any income, franchise, excise, sales or excess profits tax levied upon,
required to be collected by, or assessed against Landlord.
Tenant shall, within thirty (30) days after payment thereof, provide
Landlord with a photocopy of the tax ▇▇▇▇ marked "paid" or other suitable
evidence that the same has been paid. Not withstanding the specification of such
30-day period, Tenant's obligations under the preceding sentence are expressly
agreed to be subject to the general rights of cure by Tenant after notice, as
set forth in Paragraph 13, and by any Ground Leasehold
Mortgagees after notice, as set forth in Paragraph 10. If applicable law or
statute permits the payment of any or all of the above items to be made in
installments (whether or not interest accrues on the unpaid balance), Tenant
may, at Tenant's election, utilize the permitted installment method, but shall
pay each installment with any interest before delinquency or the commencement of
tax title proceedings.
Landlord shall pay and discharge all real estate taxes and other sums
due in respect of, or which might become a lien upon, the land of which the
Premises are a part except to the extent the same is the responsibility of
Tenant under this Ground Lease.
All payments of taxes or assessments or both, except permitted
installment payments for betterments and assessments, shall be prorated for the
initial partial tax year included within the Term and for the partial tax year
in which the Term expires. For such permitted installment payments, Tenant shall
pay only the installment(s) falling due during the Term of this Ground Lease.
Landlord appoints Tenant as Landlord's attorney-in-fact for the purpose
of making all payments to any taxing authorities and for the purpose of
contesting any taxes, assessments, or charges, all as hereinabove set forth.
If either party shall fail to make any payment of taxes, assessments or
charges as and when the same is required to be paid by it hereunder and either
(i) such failure shall continue for ten (10) days after receipt by it of notice
from the other of such failure or (ii) the other shall in good faith determine
that immediate payment is necessary to prevent jeopardy to the other's interest
in the land constituting part of the Premises and shall simultaneously give
notice to the party required to make such payment to such effect, the other may
cure such failure by making such payment, together with any interest and penalty
thereon, the amount of which payment, plus interest thereon at a rate two
percent
(2%) above the so-called "Prime Rate", "Base Rate" or "Corporate Rate" of any
successor rate quoted from time to time in the Wall Street Journal (the
"Involuntary Interest Rate"), shall be paid by the party required to make such
payment upon demand.
6. Uses.
Tenant currently intends to use and permit the use of the Premises for
the construction, maintenance, and operation of a hotel and accessory uses, but
Tenant is not obligated to construct a hotel or any other Improvements on the
Premises. If, at any time prior to the commencement of construction of
Improvements on the Premises, Tenant determines that Tenant will probably not be
able to secure approvals for and construct a hotel of at least 125 rooms. Tenant
shall promptly give notice to Landlord of such fact. In such event, Landlord
shall have the option to terminate this Ground Lease by written notice to Tenant
given within thirty (30) days after such notice from Tenant, in which event the
Ground Lease shall terminate on the date when Landlord gives such notice, rent
and other amounts paid in advance shall be prorated, and neither party shall
have any other obligation to the other. In the event Tenant gives such a notice
but Landlord does not elect to terminate the Ground Lease Tenant shall
thereafter have the absolute right at any time to use the Premises, or permit
them to be used, or any lawful purpose except for adult movies/bookstores or an
abortion clinic. In the event that Tenant constructs a hotel on the Premises,
the Premises shall be used for hotel and accessory uses only during the first 10
Ground Lease years, and Tenant shall thereafter have the absolute right at any
time to use the Premises, or permit them to be used, for any lawful purpose
except for adult movies/bookstores or an abortion clinic.
Tenant may obtain zoning changes and conditional use permits and may
enter into agreements restricting use or granting easements in or over the
Premises, provided that
no such agreements shall be binding upon Landlord or the Premises after the
expiration or termination of the Term of this Ground Lease without Landlord's
prior written consent. Landlord shall, at Tenant's request and expense, join
with Tenant in applications and proceedings to obtain easements, use and zoning
changes at Tenant's expense.
7. Improvements.
At any time and from time to time during the Term of this Ground Lease,
Tenant shall have the right, but shall not be obligated, to construct or cause
to be constructed new buildings and other Improvements on all or any part of the
Premises and to demolish, remove, replace, alter, relocate, reconstruct, or add
to any buildings and other Improvements now and hereafter constituting part of
the Premises in whole or in part, and to modify or change the contour or grade,
or both, of the land. All salvage shall belong to Tenant. Notwithstanding the
foregoing, except as necessary to comply with Tenant's obligation to maintain
the Premises in compliance with Requirements of Law, Tenant shall not have the
right to commence any work under this paragraph if there is then a continuing
default on the part of Tenant hereunder as to which Landlord has given the
required notices and all applicable periods of grace and periods for cure by
Tenant and any Ground Leasehold Mortgagees have expired without cure or
commencement of cure as in Paragraphs 10 and 13 of this Ground Lease
specifically provided ("Terminable Default").
Any work of demolition, construction, alteration, or repair of
Improvements undertaken by or for Tenant during the Term of this Ground Lease in
or on the Premises shall be in compliance with all then applicable laws, codes,
ordinances, rules, regulations, orders and requirements for permits and
approvals, including but not restricted to building permits, zoning and planning
requirements, and other such approvals from federal, state,
county and municipal governmental authorities from time to time having
jurisdiction over the Premises ("Requirements of Law").
During any major work (as hereinafter defined) or demolition, removal,
construction, reconstruction, alteration or repair in or on the Premises, Tenant
shall maintain and shall deliver to Landlord prior to the commencement of any
major work certificates evidencing insurance coverage for "builder's risk"
(including comprehensive public liability) and for worker's compensation
covering all persons employed in connection with the work and with respect to
whom death or bodily injury claims could be asserted against Landlord or the
Premises. Tenant's obligations under the preceding sentence are expressly agreed
to be subject to the general rights of cure by Tenant after notice, as set forth
in Paragraph 13 and by any Ground Leasehold Mortgagees after notice, as set
forth in Paragraph 10. Notwithstanding the provisions of Paragraph 18, unless
Tenant shall provide Landlord with suitable payment and performance bonds
insuring completion of the work Tenant shall be personally liable, without
limitation, to complete any major work of demolition, removal, construction,
reconstruction, alteration or repair of Improvements once begun in or on the
Premises, to the point that the Premises are in compliance with all Requirements
of Law. However, nothing in the preceding sentence shall obligate Tenant to
undertake any work of construction, alteration or repair or, except as expressly
set forth herein, affect the rights of Tenant to demolish, remove, alter or
replace the Improvements from time to time during the Term of this Ground Lease.
Tenant shall, at Landlord's request in each case, provide Landlord with copies
of "as built" plans as soon as practicable (but no more than 180 days) after the
completion of any major work of construction, alteration or repair in or on the
Premises. Tenant's obligations under the preceding sentence are expressly agreed
to be subject to the general rights to cure by Tenant after notice, as set forth
in
Paragraph 13, and by any Ground Leasehold Mortgages after notice, as set forth
in Paragraph 10. "Major work of construction, alteration or repair" shall mean
work having an estimated cost exceeding twenty-five percent (25%) of the then
value of the Improvements.
Neither party shall permit to be enforced against the other's interest
in the Premises any mechanic's, materialman's, contractor's, or subcontractor's
lien arising from any work in or on the Premises, in the case of Tenant, or in
or on the land of which the Premises are a part, in the case of Landlord,
however such lien may arise. However, each party may in good faith and at its
own expense contest the validity of any such asserted lien, provided it has
furnished any bond required under applicable lien laws or has otherwise
discharged any lien from said Registry of Deeds. If the responsible party shall
fail, within thirty (30) days after notice from the other, to bond off any such
asserted lien, the other may cure such failure by arranging for such bond and
the cost of such bond, plus interest thereon at the Involuntary Interest Rate,
shall be paid by the responsible party upon demand.
Throughout the Term of this Ground Lease, Tenant shall, at Tenant's
sole cost and expense, maintain the Premises in accordance with all applicable
Requirements of Law and shall not commit waste of the Improvements except,
however, that nothing in this sentence defining the duty of maintenance shall be
construed as limiting any right given elsewhere in this Ground Lease to
demolish, remove, alter or replace the Improvements from time to time during the
Term of this Ground Lease.
Tenant shall have the right, for so long as there exists no Terminable
Default, to contest by appropriate judicial or administrative proceedings,
without cost or expense to Landlord, the validity or application of any
Requirements of Law and Tenant shall not be
required to comply with any such Requirements of Law until a reasonable time
following final determination of Tenant's contest. Landlord may, but is not
required to, contest any such law independently of Tenant. Landlord shall, at
Tenant's request execute all documents and otherwise cooperate in Tenant's
contest, but without cost or expense to Landlord and without any obligation on
the part of Landlord to attend or have any representatives of Landlord attend
any proceedings in connection with such contest.
All Improvements shall be owned by Tenant and Tenant shall have the
entire insurable interest in the same until expiration or termination of this
Ground Lease, whereupon the same shall, without compensation to Tenant, be and
become Landlord's property free and clear of all claims to or against them by
Tenant or any third person claiming under Tenant. Tenant shall hold harmless
Landlord for any obligations and/or liabilities arising out of Tenant's actions
set forth in this paragraph.
8. Utilities and Services.
Tenant shall make all arrangements, whether with private providers,
governmental authorities and/or public utilities, for all utilities and other
like services to the Premises during the Term of this Ground Lease, including,
without limitation, electricity, telephone, water, sewage and gas. Landlord
shall have no responsibility for such arrangements. The expense, including
installation, maintenance, use and servicing, of all utilities and services
shall be the direct and sole responsibility of Tenant.
Landlord grants to Tenant the right to grant to governmental
authorities and utility companies, for the purpose of serving only the Premises,
rights of way or easements on over the Premises for poles or conduits or both
for such utilities and services. Promptly after the recording thereof Tenant
shall provide Landlord with a copy of any such rights of way or easement.
Tenant's obligations under the preceding sentence are
expressly agreed to be subject to the general rights of cure by Tenant, after
notice, as set forth in Paragraph 13 and by any Ground Leasehold Mortgagees
after notice, as set forth in Paragraph 10 hereof.
9. Assignments, Subleases of Tenant's Interest.
Except as set forth herein, Tenant shall have the unrestricted right,
from time to time, to assign all or any portion of or any interest in Tenant's
interest in this Ground Lease and the Improvements (including the leasehold
estate created hereunder) without the prior consent of Landlord, provided that
no such assignment shall be valid and effective as against Landlord until there
shall be delivered to Landlord a true copy of the written instrument or
instruments of assignment containing the name and address of the assignee and an
instrument by which the assignee assumes all outstanding obligations of the
assignor including all indemnification obligations of the assignors then
existing hereunder.
Upon any such valid assignment of this Ground Lease provided such
assignee has a net worth in excess of $5,000,000 adjusted by a factor, the
numerator of which is the Extension Index as of the date of such assignment and
the denominator of which is the Beginning Index as defined in Section 4, has a
good business reputation and experience in hotel operation and management if a
hotel has been developed on the leased premises at the time of the assignment,
or has a good business reputation and agrees that any improvements to be
constructed on the leased premises will be in accordance with applicable
township zoning ordinances and standards if a hotel has been developed on the
leased premises at the time of the assignment the assignor shall be relieved of
all obligations of the Tenant hereunder or under such separate Ground Lease
thereafter
occurring. A certified statement of net worth of the assignee shall be supplied
to Landlord prior to execution of the assignment for verification of net worth.
Tenant shall have the absolute right to sublet all or any part or parts
of the Premises and to assign, encumber, extend, or renew any subleases. Unless
otherwise expressly agreed by Landlord in writing, all subleases shall be
expressly subject and subordinate to this Ground Lease, it being understood and
agreed that no such subleases shall relieve Tenant from Tenant's obligations
under this Ground Lease. Any use of the property for adult movies/bookstores or
abortion clinic is prohibited.
10. Ground Leasehold Mortgages; Sale and Ground Leaseback.
The term "Ground Leasehold Mortgage" as used in this Ground Lease shall
include a mortgage, a deed of trust, a deed to secure debt, assignment, security
interest, pledge, financing statement, and any other instruments or agreements
intended to grant security for a debt or other obligation or other security
instrument by which the Ground Leasehold Estate is mortgaged, conveyed,
assigned, or otherwise transferred, and shall also include an Institutional
Ground Leasehold Mortgage. The term "Institution Ground Leasehold Mortgage" as
used in this Ground Lease shall include a Ground Leasehold Mortgage of which the
original holder is an institution. The term "Institution" shall mean a savings
bank, a commercial bank or trust company (whether acting individually, or in any
fiduciary capacity), an insurance company, an educational institution, or a
state, municipal or similar public employees' welfare or other pension or
retirement fund or system or a private profit sharing trust or fund, or a
corporate, private or union pension trust or fund, or any other corporation or
entity entitled to exemption from income tax under the Internal Revenue Code of
the United States as amended from time to time or any other bank, company, firm,
corporation, system, trust, fund or other entity regularly in the business of
making real estate mortgage loans and shall include any of the foregoing when
acting as trustee for another holder or holders, whether or not such other
holder or holders are themselves Institutions. The term "Ground Leasehold
Mortgagee" and "Institutional Ground Leasehold Mortgagee" as used in this Ground
Lease shall refer to the holders of record of Ground Leasehold Mortgages and
Institutional Ground Leasehold Mortgages, respectively, which holders shall each
be conclusively deemed in each case to have the address last specified for the
holder of each such Ground Leasehold Mortgage or Institutional Ground Leasehold
Mortgagee, as the case may be in notice to Landlord as provided for in this
Paragraph 10. The terms Ground Leasehold Mortgage and Ground Leasehold Mortgagee
include Institutional Ground Leasehold Mortgage and Institutional Ground
Leasehold Mortgagee, respectively.
Tenant shall have the absolute right to enter into Ground Leasehold
Mortgages on one or more occasions from time to time without the consent of
Landlord.
Each Ground Leasehold Mortgagee may from time to time specify its name
and a United States address by notice to Landlord and by recording a copy of
such notice with the Registry of Deeds. Landlord shall upon request promptly
provide to any Ground Leasehold Mortgagee an acknowledgment of such name and
address in recordable form. Whether or not Landlord shall have provided such
acknowledgment, the projections and provisions of this Ground Lease applicable
to Ground Leasehold Mortgagees shall be applicable to each Ground Leasehold
Mortgagee that has recorded a notice as to its name and address in said Registry
of Deeds as aforesaid. Any notice to be given by Landlord to a Ground Leasehold
Mortgage pursuant to any provisions of this Paragraph 10 shall be deemed
properly addressed if sent to the Ground Leasehold Mortgagee at the
address specified in such Ground Leasehold Mortgagee's most recent duly recorded
notice to Landlord.
No cancellation (other than a termination hereof by Landlord for a
Terminable Default as defined in Paragraph 7), surrender or modification of this
Ground Lease or waiver or amendment of any provision of this Ground Lease shall
be binding upon or effective as against any Ground Leasehold Mortgagee unless
consented to in writing by such Ground Leasehold Mortgagee.
Landlord, upon providing to Tenant any notice of (i) default under this
Ground Lease or (ii) termination of this Ground Lease, shall at the same time
provide a copy of such notice to every Ground Leasehold Mortgagee. No such
notice by Landlord to Tenant shall be deemed to have been duly given unless and
until a copy thereof has been so provided to every Ground Leasehold Mortgagee.
From and after such notice of default has been given to a Ground Leasehold
Mortgagee, such Ground Leasehold Mortgagee shall have the same period, after the
giving of such notice to it, within which to remedy any default or acts or
omissions which are the subject matter of such notice or to cause the same to be
remedied, as is given Tenant after the giving of such notice to Tenant, plus in
the case of Institutional Ground Leasehold Mortgagees only, the additional
periods of time specified in the next two succeeding paragraphs of this
Paragraph 10 to remedy, commence remedying, or cause to be remedied the defaults
or acts or omissions which are the subject matter of such notice specified in
any such notice. Landlord shall accept such performance by or at the instigation
of such Ground Leasehold Mortgagee for the account of and as if the same had
been done by Tenant and such Ground Leasehold Mortgagee shall not thereby be or
be deemed to be in possession of the Premises. If two or more Ground Leasehold
Mortgagees simultaneously offer to
perform for or to remedy some default or act or omission of Tenant, Landlord may
elect to accept performance from the Ground Leasehold Mortgagee most senior in
lien upon the Ground Leasehold Estate.
Anything contained in this Ground Lease to the contrary
notwithstanding, if any default shall occur which would entitle Landlord to
terminate this Ground Lease under Paragraph 13, Landlord shall have no such
right to terminate unless, following the expiration of the period of time given
Tenant to cure such default or the act or omission which gave rise to such
default. Landlord shall give notice of termination to every Institutional Ground
Leasehold Mortgagee at least thirty (30) days in advance of the proposed
effective date of such termination if such default is capable of being cured by
the payment of money, and at least ninety (90) days in advance of the proposed
effective date of such termination if such default is not capable of being cured
by the payment of money. The provisions of the next succeeding paragraph of this
Paragraph 10 shall apply if, during such thirty (30) or ninety (90) day period
in advance of the proposed effective date of such termination, any Institutional
Ground Leasehold Mortgagee shall:
(1) notify Landlord of such Institutional Ground Leasehold Mortgagee's
intent to nullify such notice, and
(2) pay or cause to be paid all rent, additional rent, and other
monetary obligations of Tenant under this Ground Lease (a) then
due and in arrears as specified in such termination notice to such
Institutional Ground Leasehold Mortgagee and (b) which may become
due during such thirty (30) or ninety (90) day period, and
(3) comply with all non-monetary obligations of Tenant under this
Ground Lease (a) then in default as specified in such termination
notice to such
Institutional Ground Leasehold Mortgagee and (b) which may become
applicable during such thirty (30) or ninety (90) day period, but
only such non-monetary obligations as are reasonably susceptible
of being complied with by such Institutional Ground Leasehold
Mortgagee.
If Landlord shall elect to terminate this Ground Lease by reason of any
default of Tenant, and an Institutional Ground Leasehold Mortgagee shall have
proceeded in the manner provided for in the immediately preceding paragraph of
this Paragraph 10, the specified date for the termination of this Ground Lease
as fixed by Landlord in its termination notice shall be extended for a period of
six (6) months, provided that such Institutional Ground Leasehold Mortgagee
shall, during such six (6) month period;
(1) Pay or cause to be paid all rent, additional rent and other
monetary obligations of Tenant under this Ground Lease as the same
become due, and continue to comply with all non-monetary
obligations of Tenant, under this Ground Lease, but only such as
are reasonably susceptible to being complied with by such
Institutional Ground Leasehold Mortgagee; and
(2) for so long as not enjoined or stayed, take step to acquire or
sell the Ground Leasehold Estate by foreclosure or assignment in
lieu of foreclosure of the Institutional Ground Leasehold Mortgage
or other appropriate means and prosecute the same to completion
with due diligence.
If at the end of such six (6) month period such Institutional Ground Leasehold
Mortgagee is continuing to comply with subparagraphs (1) and (2) above, this
Ground Lease shall not then terminate, and the time for completion by such
Institutional Ground Leasehold Mortgagee of its proceedings shall continue so
long as such Institutional Ground Leasehold Mortgagee is enjoined or stayed and
thereafter so long as such Institutional
Ground Leasehold Mortgagee proceeds to complete steps to acquire or sell the
Ground Leasehold Estate by foreclosure or assignment in lieu of foreclosure of
the Institutional Ground Leasehold Mortgage or by other appropriate means with
reasonable diligence and continuity. Nothing in this paragraph, however, shall
be construed to extend this Ground Lease beyond the expiration of the Term of
the Ground Lease. If an Institutional Ground Leasehold Mortgagee is complying
with this paragraph, upon the acquisition of the Ground Leasehold Estate by such
Institution Ground Leasehold Mortgagee or its designee or any other purchaser at
a foreclosure sale or otherwise this Ground Lease shall continue in full force
and effect as if Tenant had not defaulted under this Ground Lease.
In the event that this Ground Lease is terminated by operation of the
federal Bankruptcy Code or other applicable law, each Institutional Mortgagee
shall have the same rights as in the event of a default by Tenant, except that
Landlord shall, upon the written request of any Institutional Mortgagee who has
complied with the foregoing provisions, execute a new lease with such
Institutional Mortgagee on all of the same terms and conditions of this Ground
Lease, for the Term which would remain under this Ground Lease if it had not
been terminated and on all of the other terms and conditions hereof. In the
event that more than one Institutional Mortgagee requests such a new lease
Landlord shall grant such new lease to the Institutional Mortgagee requesting
such new lease which is prior in lien if they are then in compliance with the
terms of the Lease.
The making of a Ground Leasehold Mortgage shall not be deemed to
constitute an assignment or transfer of the Ground Leasehold Estate nor shall
any Ground Leasehold Mortgagee, as such, or in the exercise of its rights to
perform obligations of Tenant, be deemed to be an assignee or transferee or
mortgagee in possession of the
Ground Leasehold Estate so as to require such Ground Leasehold Mortgagee, as
such, to assume or otherwise be obligated to perform any of the terms, covenants
or conditions on the part of the Tenant to be performed hereunder, except when
and then only for so long as such Ground Leasehold Mortgagee enters into
possession of the Premises in the exercise of its remedies under the applicable
Ground Leasehold Mortgage (as distinct from its rights hereunder to cure Tenant
defaults).
The purchaser at any sale of the Ground Leasehold Estate in any
proceedings for the foreclosure of any Ground Leasehold Mortgage, or the
assignee or transferee of the Ground Leasehold Estate under any instrument of
assignment or transfer in lieu of the foreclosure of any Ground Leasehold
Mortgage, shall be deemed to be an assignee or transferee of the Ground Lease
and shall be deemed to have assumed all of the obligations of Tenant hereunder
from and after the date of such purchase and assignment, but only for so long as
such purchaser or assignee is the owner of this Ground Lease and the Ground
Leasehold Estate. All restrictions hereunder shall apply to any purchaser at any
sale. Any Leasehold Mortgagee or other acquirer of the Ground Leasehold Estate
pursuant to foreclosure, assignment in lieu of foreclosure or other proceedings
may, upon acquiring the Ground Leasehold Estate, subject to all of the
provisions of Paragraph 9. Nothing contained herein shall (i) prevent Landlord
from bidding at such a foreclosure or from negotiating directly with any Ground
Leasehold Mortgagee for the purchase of the interest of such Ground Leasehold
Mortgagee, or (ii) require any Ground Leasehold Mortgagee or its assignee as a
condition to its exercise of any rights hereunder to comply with or cure any
default of Tenant not reasonably
susceptible to being complied with or cured by such Ground Leasehold Mortgagee
or its assignee in order to comply with the provisions of this Paragraph 10.
The failure of any Ground Leasehold Mortgagee to exercise in timely
fashion its rights under this paragraph 10 to prevent a termination of this
Ground Lease by reason of a default on the part of Tenant hereunder shall be
deemed an automatic waiver of such rights if Landlord has otherwise properly
elected to terminate this Ground Lease.
Landlord and Tenant shall cooperate in including in this Ground Lease
by suitable amendment from time to time any provision which may reasonably be
requested by any current or proposed Institutional Ground Leasehold Mortgagee
for the purpose of implementing the mortgagee protection provision contained in
this Ground Lease and allowing such Ground Leasehold Mortgagee reasonable means
to protect or preserve the lien of the Ground Leasehold Mortgage on the
occurrence of a default on the part of Tenant under the terms of this Ground
Lease. Landlord and Tenant agree to execute and deliver (and to acknowledge, if
necessary, for recording purposes) any agreement necessary to effect any such
amendment; provided, however, that any such amendment shall not in any way
affect the Term or rent under this Ground Lease nor otherwise in any material
respect adversely affect any rights of Landlord under this Ground Lease.
Notwithstanding anything in this Ground Lease to the contrary, Tenant
shall have the absolute right to sell, assign, transfer and convey the Ground
Leasehold Estate without the purchaser, assignee, transferee or grantee being
deemed to have assumed or becoming obligated to perform any of the terms,
covenants or conditions on the part of Tenant to be performed hereunder,
provided Tenant simultaneously with such sale, assignment, transfer or
conveyance reserves, retains or receives, as part of a financing transaction, a
sublease or similar interest commonly known as a "leaseback". In such
event, such purchaser, assignee, transferee or grantee shall, upon giving notice
to Landlord in accordance with Paragraph 10, be entitled to the rights and
projections of a Ground Leasehold Mortgagee (or, if such purchaser, assignee,
transferee or grantee is an Institution, of an Institutional Ground Leasehold
Mortgagee) under this Ground Lease, and Tenant shall remain liable under this
Ground Lease, subject to the rights of assignment set forth in this Ground
Lease.
11. Insurance; Indemnity.
Tenant may, but shall not have any obligation to, maintain so-called
property insurance against fire or other casualty affecting the Improvements
from time to time constituting part of the Premises, it being understood,
however, that Tenant and any subtenants holding under Tenant shall have the
entire insurable interest in such Improvements and that the proceeds of any such
insurance shall be applied as set forth in any Ground Leasehold Mortgages or
paid to Tenant or its subtenants. Tenant may, but shall not have any obligation
to, repair, restore, replace or reconstruct any Improvements damaged by casualty
or apply any insurance proceeds to such repair, restoration, replacement or
reconstruction; however, if Tenant opts not to repair, replace, or reconstruct
any improvements damaged by casualty and Tenant is in default of this Lease,
Landlord has the right to attach said proceeds to the extent of the default,
subject always to the rights of any Ground Leasehold Mortgagee.
Tenant shall maintain comprehensive broad form general public
liability insurance against claims for bodily injury or death and damage to
personal property occurring in or about the Premises or any part thereof or the
adjoining sidewalks, curbs, vaults, and vault space, if any, streets or ways,
with contractual liability coverage and limits reasonably adequate to protect
Landlord and Tenant against judgments from time to time being
awarded in Pennsylvania for bodily injury, death and property damage. At the
date hereof, such limits shall be at least $10,000,000 combined single limit for
injury and death and at least $500,000 for property damage, which limits shall
be increased upon notice of request from Landlord but not more frequently than
every (3) years to such amounts as are from time to time customarily maintained
for similar commercial properties in the municipality in which the Premises are
located. Such insurance shall be effected with insurers of recognized
responsibility, qualified to do business or subject to service of process in the
state in which the Premises are located. Certificates signed by an authorized
representative of the insurer or duplicates of such insurance policies shall be
furnished to Landlord and other insured parties as evidence that such insurance
is maintained by Tenant and in force, where applicable. No such insurance shall
be subject to cancellation or reduction without at least thirty (30) days' prior
written notice given by the insurance carrier to Landlord and other insured
parties. All such policies shall be issued in favor of Ground Leasehold
Mortgagees, pursuant to standard mortgagee clauses or endorsements, Tenant and
Landlord as their interest may appear.
Landlord and Tenant release each other from any and all liability or
responsibility (to such party or anyone claiming through or under such party by
way of subrogation or otherwise) for any loss or damage to the extent covered by
the insurance policies maintained by, or for the benefit of, such party even if
such casualty shall have been caused by the fault or negligence of the other
party or its agents.
If Tenant shall fail to maintain any insurance required to be
maintained hereunder by Tenant for the benefit of Landlord, and either (i) such
failure shall continue for ten (10) days after receipt by Tenant of notice from
Landlord or insurer of such failure of (ii) Landlord shall in good faith
determine that immediate arrangements for such insurance
is necessary to prevent irreparable injury to an insurable interest of Landlord
under such insurance and shall simultaneously give notice to Tenant to such
effect, Landlord may cure such failure by making arrangements for such insurance
and reasonable cost thereof, with interest at the Involuntary Interest Rate,
shall be paid by Tenant to Landlord upon demand as additional rent hereunder.
Tenant shall indemnify and save Landlord harmless from and against all
liabilities, obligations, claims, damages, penalties, cause of action,
judgments, costs and expenses, including reasonable attorneys' fees, imposed
upon or incurred by Landlord by reason of any bodily injury or death to persons
or damage to personal property occurring in the Premises or any part thereof or
arising out of the condition thereof or any construction, repairs, alterations
or additions thereon, or arising in connection with Tenant's possession or
occupancy of the Premises or arising from any breach or default on the part of
Tenant in the performance of any covenant or agreement on the part of Tenant to
be performed pursuant to the terms of this Ground Lease and other agreements
relating to the Premises. Anything in this Ground Lease to the contrary
notwithstanding, Tenant shall have no obligation or liability in respect of
anything resulting from or arising out of any act or negligence of Landlord, its
agents, contractors, servants and employees.
12. Eminent Domain.
If, during the Term of this Ground Lease, the entire Premises are
taken by eminent domain or destroyed by the action of any public or quasi-public
authority or conveyed in lieu or in anticipation thereof (collectively, a
"Taking"), or if a material portion of the Premises are the subject of a Taking
and Tenant, at Tenant's sole option, gives notice to Landlord electing to
terminate the Ground Lease, then in either of such events this Ground Lease
shall terminate as of the date of possession shall be taken by the authority
and all rent shall be adjusted as of the date. Landlord hereby assigns to Tenant
the right to receive, and there shall be paid to Tenant or, to the extent
provided in any Ground Leasehold Mortgages, to Ground Leasehold Mortgagees, the
amount of any awards or other sums received, in proportion to the damages
sustained by Tenant, as compensation as a result of any Taking, (i) the full
value of any Improvements which are the subject of a Taking, whether or not the
value of the Improvements is subject of a separate award or otherwise separately
determined by the Taking authority; and (ii) the full value of the land which is
the subject of the Taking less an amount equal to the then discounted present
value of the rental income payable under this Ground Lease and the then
discounted present value of the residual value of the Land hereby demised, which
amount shall be paid to Landlord.
If less than the entire Premises are the subject of a Taking and
Tenant does not elect to terminate this Ground Lease, the rent payable hereunder
shall thereafter by permanently abated in the same proportion that the land
which is the subject of the Taking bears to the entire parcel of land
constituting part of the Premises immediately prior to the Taking.
In the event Landlord becomes aware of a Taking or involved in any
proceedings or negotiations in which there is reference to or threat of a
possible Taking of any interest in the Premises, Landlord shall promptly give
notice thereof and such a general description to Tenant and to any Ground
Leasehold Mortgagees, Landlord, Tenant and any Ground Leasehold Mortgagees may
appear in such proceedings or negotiations and be represented by their
respective counsel.
13. Surrender; Default by Tenant.
At the expiration or earlier termination of the Term of this Ground
Lease, Tenant shall surrender the Premises to Landlord.
If Tenant shall neglect or fail to pay or cause to be paid rent or
other sums to be paid by it within thirty (30) days after notice to Tenant and
to all Ground Leasehold Mortgagees from Landlord that the same is overdue, or
shall neglect or fail to perform or cause to be performed any of Tenant's other
covenants, agreements or obligations hereunder for sixty (60) days after notice
to Tenant and all Ground Leasehold Mortgagees from Landlord specifying the same
(provided that such period shall be extended if the matters complained of in
such notice cannot reasonably be performed within sixty (60) days and Tenant
begins promptly to perform such matters within sixty (60) days and thereafter
prosecutes the correction to completion with reasonable diligence), then, in any
of such cases, Landlord may, after giving an additional thirty (30) days notice
of its intention to do so to Tenant and all Ground Leasehold Mortgagees,
terminate the Term of this Ground Lease, in which event Tenant shall promptly
vacate the Premises. Payment or performance by any Ground Leasehold Mortgagee
shall be deemed to be payment or performance by Tenant.
14. Landlord's Mortgages.
Landlord covenants and agrees that it shall not grant mortgages upon
Landlord's fee interest in the Premises, at any time.
15. Right of First Refusal.
If Landlord wishes to sell the Premises at any time during the Term,
and if Tenant is not then in Terminable Default, Landlord shall first give
Tenant a notice offering to sell the Premises to Tenant, specifying the terms
and conditions on which Landlord is willing to sell the Premises. Tenant shall
have the right to accept such offer by giving written
notice to Landlord within thirty (30) days after Landlord's notice is given,
which notice of acceptance shall be accompanied by the deposit (not in excess of
10% of the price) called for in Landlord's notice. If Tenant so accepts
Landlord's offer, Landlord shall sell and Tenant shall purchase the Premises on
all of the terms and conditions of Landlord's offer. If Tenant does not so
accept Landlord's offer, Landlord shall be entitled at any time within six (6)
months thereafter to sell the Premises on terms and conditions not materially
more favorable to the buyer than those offered to Tenant. If Landlord does not
sell the Premises within such six (6) month period Landlord shall not thereafter
sell the Premises without giving Tenant such an offer. Any transfers by Landlord
to members of the ▇▇▇▇▇▇▇ family shall be exempt from the provisions of this
paragraph. Any and all members of the ▇▇▇▇▇▇▇ family who become owners of the
Premises shall be bound by the provisions of the paragraph for purposes of
transfers to purchasers not a member of the ▇▇▇▇▇▇▇ family.
16. Non-Merger of Fee and Ground Leasehold Estates.
If both Landlord's and Tenant's estates in the Premises or the
Improvements or both become vested in the same owner, this Ground Lease shall
nevertheless not be destroyed by agreement or by application of the doctrine or
principle of merger except with the express, recorded written election of said
owner and the express, recorded written consents of all Ground Leasehold
Mortgagees.
17. Limited Liability of Landlord, Tenant.
The term "Landlord," as used in this Ground Lease, means only the
owner from time to time of the land which constitutes part of the Premises, such
that in the event of any sale or sales of such land, or assignments, transfers,
or other conveyances of Landlord's rights under this Ground Lease, the selling
or transferring Landlord shall be
entirely freed and relieved of any covenants and obligations of Landlord
hereunder thereafter arising.
Landlord agrees that Landlord shall look solely to Tenant's Ground
Leasehold Estate, including without limitation thereof, the Premises, in the
event of any default or breach by Tenant with respect to any of the terms and
provisions of this Ground Lease on the part of the Tenant to be performed or
observed, it being understood and agreed that Tenant shall have no personal
liability and that no other assets of Tenant shall be subject to levy,
execution, or other judicial process or aware for the satisfaction of Landlord's
claim. For the purposes of this paragraph, the term "Tenant" includes its
general and limited partners, trustees, beneficiaries, directors, officers, and
stockholders (as applicable from time to time) and Tenant's agents, contractors
and employees.
18. Estoppel Certificates.
Tenant agrees at any time and from time to time upon not less than ten
(10) days' prior written notice by Landlord or any other party designated by
Landlord, to execute, acknowledge and deliver, without charge, to Landlord or to
any other party designated by Landlord, a statement in writing certifying that
this Ground Lease is in full force and effect and unmodified (or if there have
been modifications, identifying the same), that Tenant has not received any
notice of default under or termination of this Ground Lease (or if Tenant has
received such notice, that it has been revoked, if such be the case), the date
to which the rents to be paid hereunder by Tenant have been paid, and such other
matters relating to the Premises, Tenant and this Ground Lease as Landlord may
reasonably request.
Landlord agrees at any time and from time to time upon not less than
ten (10) days' prior written notice by Tenant, or a Ground Leasehold Mortgagee
or any other party
designated by Tenant, to execute, acknowledge and deliver, without charge, to
Tenant, any Ground Leasehold Mortgagee or any other party designated by Tenant a
statement in writing certifying that this Ground Lease is in full force and
effect and unmodified (or if there have been modifications, identifying the
same), that no notice of default or termination of this Ground Lease has been
served on Tenant (or if Landlord has served such notice, that it has been
revoked, if such be the case), that Landlord has no knowledge of any event or
condition which would immediately or with the giving of any notice or lapse of
time entitle it to serve notice of termination of this Ground Lease on Tenant
(or if it has such knowledge, identifying the event or condition which would or
may give rise to such right to terminate), the date to which the rents to be
paid hereunder have been paid, and such other matters relating to the Premises,
Landlord and this Ground Lease as Tenant may reasonably request.
19. Notices.
All notices and other communications required or permitted to be given
hereunder shall be in writing and mailed by certified or registered mail, return
receipt requested, and addressed as hereinafter provided. The time period in
which a response to any notice must be made, if any, shall commence to run from
the date of receipt, refusal, or attempted delivery on the return receipt of the
notice. Any party listed below may change its address under this Paragraph 20 by
notice to the other party hereto. Until further notice, notices hereunder shall
be addressed as follows:
If to Landlord: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
If to Tenant: Promus Hotels, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
and with a copy to each Ground Leasehold Mortgagee;
The address listed for Landlord above shall be the address at which
payments of rent and other sums payable hereunder shall be made. Landlord may
change the address for making payments hereunder by notice to Tenant, which
address may be different from Landlord's address for notices hereunder.
20. No Recording; Notices of Ground Lease.
This Ground Lease shall not be recorded; Landlord and Tenant hereby
agree, each at the request of the other or of any leasehold mortgagee, promptly
to execute, acknowledge, and deliver in recordable form such short forms or
memorandum of lease or notices of assignments of rents and profits or other
instruments containing such information as may from time to time be necessary or
appropriate under the law of the state in which the Premises are located. The
initial notice of lease or memorandum of lease shall be recorded at the expense
of Landlord and any other such instrument shall be recorded at the expense of
the party requesting such instrument.
21. Attorneys' Fees and Other Costs.
The parties to this Ground Lease shall bear their own attorneys fees in
relation to negotiating and drafting this Agreement. Should Landlord or Tenant
engage in litigation to enforce their respective rights pursuant hereto, the
prevailing party shall have the right to indemnify by the non-prevailing party
for an amount equal to the prevailing party's reasonable attorneys' fees, court
costs, and expenses arising therefrom.
22. General.
This Ground Lease shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania. If any provisions of this Ground
Lease shall to any extent and for any reason be invalid or illegal, the
remainder of this Ground Lease shall not be affected thereby. This Ground Lease
may be amended only by instruments in writing executed by Landlord and Tenant.
The failure of Landlord to insist in any one or more instances upon the strict
performance of any of the covenants of this Ground Lease, or to exercise any
remedy herein set forth, shall not constitute or be construed as a waiver or
relinquishment of such covenant or remedy in future such instances. The titles
of the Paragraphs contained herein are for identification and convenience only
and shall not be considered in construing this Ground Lease. Unless repugnant to
the context, the words "Landlord" and "Tenant" appearing in this Ground Lease
shall be construed to mean those named in Paragraph 1 and their respective
successors and assigns, and those claiming by, through, or under them,
respectively. Payment or performance by any Ground Leasehold Mortgagee of any
covenant or obligation of Tenant hereunder shall be deemed to be payment or
performance by Tenant.
23. Power of Attorney.
The undersigned, being all of the owners of the Premises, have made,
and by their execution of this Ground Lease, hereby appoint ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as
their true and lawful attorney-in-fact for each of them to enter into, make,
sign, modify, amend, compromise, settle, deliver and to perform each and every
act or thing necessary or desirable to be done in the exercise of any of the
rights or powers granted in this Ground Lease. The undersigned individuals do
hereby confirm and ratify any writing, or thing that, in the option of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, is necessary or proper to be entered into,
made, signed, executed, delivered or acknowledged in the performance of this
Ground Lease. The rights, powers, and authority of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as
attorney-in-fact, shall commence and be in full force on the date of this Ground
Lease. These rights, powers, and authorities shall continue in full force and
effect until termination of this Ground Lease. If ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is, for any
reason, unable to act as attorney-in-fact, Landlord agrees to promptly appoint a
successor attorney-in-fact having the same rights, powers and authority granted
to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ pursuant to this Section 23. The undersigned do hereby
ratify and confirm the Agreement To Lease pertaining to the Premises dated
September 18, 1995, between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and Promus Hotels, Inc.
IN WITNESS WHEREOF, the parties have caused this Ground Lease to be
executed under seal as of the day and year first above written.
Landlord:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tenant: PROMUS HOTELS, INC.
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
-------------------------------------------
Its: Vice President
-------------------------------------------
▇▇▇▇▇▇▇ VALLEY ENGINEERS, INC.
CIVIL ENGINEERS & LAND SURVEYORS
EST. 1935
#13811 - Homewood Suites
Line Easement Description
April 11, 1996
Dwg. 15554
Page 1
ALL THAT CERTAIN line SITUATE in East Whiteland
Township, ▇▇▇▇▇▇▇ County, Pennsylvania being shown as
[ILLEGIBLE] Line Easement Description on Land Development Plan for
Homewood Suites dated November 2, 1995, and being last
revised March 26, 1996 by ▇▇▇▇▇▇▇ Valley Engineers,
Inc., Paoli, Pennsylvania, and being more fully
described along the centerline of a proposed storm
sewer pipe as follows:
BEGINNING at a point on line of land now or late of
Penn State University, said beginning point being
measured the two (2) following courses and distances
from an iron pin on the southeasterly right of way line
of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.-▇▇▇▇. 94' wide, said iron pin
being a common corner with said land of Penn State
University: (1) South 28 degrees 04 minutes 35 seconds
East 566 35 feet to an iron pin; (2) South 59 degrees
09 minutes 34 seconds West 17.06 feet to a point of
intersection with a storm sewer pipe, the point of
beginning; thence from the point of beginning,
following said storm sewer pipe through said land of
Penn State University had three (3) following courses
and distances: (1) South 17 degrees 15 minutes 44
seconds East 32.94 feet to MH #3; (2) South 78 degrees
10 minutes 39 seconds East 241.27 feet to MH #4; (3)
continuing along said storm sewer pipe easterly to an
existing Basin Easement, the point of terminus.
EXHIBIT "A"
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ o ▇.▇. ▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ o Fax (▇▇▇) ▇▇▇-▇▇▇▇
AMENDMENT TO GROUND LEASE
This Amendment to Ground Lease (Amendment) is entered into as of this the 1st
day of July, 1996, between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (hereafter Landlord) and Promus
Hotels, Inc. (hereafter Tenant).
RECITALS
A. Of even date herewith, Landlord and Tenant entered into a Ground Lease
regarding certain real property located in Malvern, East Whiteland
Township, Pennsylvania, as more particularly described on an Exhibit A
attached thereto.
B. Landlord and Tenant now desire to amend certain portions of the Ground
Lease as more particularly set forth herein.
C. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is executing this Amendment as attorney-in-fact for
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ pursuant to Section 23. Power of
Attorney of the Ground Lease.
AGREEMENT
Now, Therefore, in consideration of the mutual terms and conditions contained
herein, Landlord and Tenant agree that the Ground Lease is hereby amended as
follows:
1. Section 4. Rent is amended by deleting the second paragraph in its entirety
and substituting the following language therefore:
The Annual Rent with respect to the first five (5) Ground Lease Years of
the Original Term shall be $100,000, commencing on May 1, 1997 or upon the
date that the Improvements on the Premises are opened to the public for
business, whichever date occurs first.
2. Except as amended hereby, the Ground Lease shall remain unchanged.
In Witness Whereof, Landlord and Tenant have executed this Amendment effective
on the day and date first written above.
LANDLORD: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
TENANT: PROMUS HOTELS, INC.
BY: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇▇
-----------------------
ITS: Vice President
----------------------
▇▇▇▇▇▇▇ VALLEY ENGINEERS, INC.
CIVIL ENGINEERS & LAND SURVEYORS
EST. 1935
#13811 - Homewood Suites
Line Easement Description
April 11, 1996
Dwg. 15554
Page 1
ALL THAT CERTAIN line SITUATE in East Whiteland
Township, ▇▇▇▇▇▇▇ County, Pennsylvania being shown as
[ILLEGIBLE] Line Easement Description on Land Development Plan for
Homewood Suites dated November 2, 1995, and being last
revised March 26, 1996 by ▇▇▇▇▇▇▇ Valley Engineers,
Inc., Paoli, Pennsylvania, and being more fully
described along the centerline of a proposed storm
sewer pipe as follows:
BEGINNING at a point on line of land now or late of
Penn State University, said beginning point being
measured the two (2) following courses and distances
from an iron pin on the southeasterly right of way line
of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.-▇▇▇▇. 94' wide, said iron pin
being a common corner with said land of Penn State
University: (1) South 28 degrees 04 minutes 35 seconds
East 566 35 feet to an iron pin; (2) South 59 degrees
09 minutes 34 seconds West 17.06 feet to a point of
intersection with a storm sewer pipe, the point of
beginning; thence from the point of beginning,
following said storm sewer pipe through said land of
Penn State University the three (3) following courses
and distances: (1) South 17 degrees 15 minutes 44
seconds East 32.94 feet to MH #3; (2) South 78 degrees
10 minutes 39 seconds East 241.27 feet to MH #4; (3)
continuing along said storm sewer pipe easterly to an
existing Basin Easement, the point of terminus.
EXHIBIT "A"
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ o ▇.▇. ▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ o Fax (▇▇▇) ▇▇▇-▇▇▇▇
SECOND AMENDMENT TO GROUND LEASE
AND
AMENDMENT TO SHORT FORM LEASE
THIS SECOND AMENDMENT TO GROUND LEASE AND AMENDMENT TO SHORT FORM LEASE
(collectively, this "Amendment") is entered into as of this the 6th day of
March, 2000, between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AND ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(colletively, "Landlord") and PROMUS HOTELS, INC. (hereafter, "Tenant").
RECITALS
A. On July 1, 1996 Landlord and Tenant entered into a Ground Lease
regarding certain real property located in Malvern, East Whiteland Township,
Pennsylvania, as amended by Amendment To Ground Lease between Landlord and
Tenant also dated July 1, 1996 (collectively, the "Ground Lease").
B. Landlord and Tenant also entered into a Short Form Lease which was
recorded in the Office of the Recorder of ▇▇▇▇▇, ▇▇▇▇▇▇▇ County, Pennsylvania on
November 15, 1996 as Instrument No. 68773 in Book 4107, Page 2237 and
re-recorded as Instrument No. 24154 in Book 4171, Page 2029 (the "Short Form
Lease").
C. Due to an error Exhibit A attached to the Ground Lease and the Short
Form Lease does not describe the premises intended to be demised pursuant to the
Ground Lease.
D. Landlord and Tenant desire to correct said error by amending Exhibit
A attached to the Ground Lease and the Short Form Lease.
E. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is executing this Amendment as attorney-in-fact
for ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ pursuant to Section 23. Power of
Attorney of the Ground Lease.
AGREEMENT
NOW, THEREFORE, in consideration of ten dollars ($10.00) and other good
and valuable consideration, Landlord and Tenant agree that the Ground Lease and
the Short Form Lease is each amended as follows:
1. Exhibit A attached to each of the Ground Lease and the Short Form
Lease is hereby deleted in its entirety and replaced with Exhibit A attached to
this Amendment.
2. Except as amended hereby, the Ground Lease and the Short Form Lease
shall remain unchanged.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment
effective on the day and year first above written.
LANDLORD:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
as attorney-in-fact
TENANT:
PROMUS HOTELS, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: ▇.▇.
▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ )
) ss.:
COUNTY OF ▇▇▇▇▇▇▇ )
On this 6th day of March, 2000, before me, the undersigned officer,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument and acknowledged
that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Notary Public
My commission expires:
-----------------------------------
Notarial Seal
▇▇▇▇▇ ▇▇▇▇▇▇▇, Notary Public
Malvern Boro. ▇▇▇▇▇▇▇ County
My Commission Expires June 17, 2002
-----------------------------------
Member, Pennsylvania Association of Notaries
STATE OF TENNESSEE )
) ss.:
COUNTY OF SHELBY )
On this 13th day of March, 2000, before me, the undersigned officer,
personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇, Vice President of PROMUS HOTELS, INC., who
acknowledged himself to be the Vice President of said corporation and that he,
as such officer, being authorized to do so on behalf of the corporation,
executed the foregoing instrument, for the purposes therein contained, by
signing the name of the corporation, as Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ ▇▇▇▇▇▇ ▇. ????
-----------------------
Notary Public
My commission expires:
12-16-2000
----------------------
[NOTARY PUBLIC GRAPHIC]
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
ALL THAT CERTAIN of land SITUATE in East Whiteland Township, ▇▇▇▇▇▇▇ County,
Pennsylvania, being bounded and described according to a Survey and Plan thereof
entitled ALTA/ACSM Land Title Survey for Promus Hotel Corporation, dated August
12, 1996 by ▇▇▇▇▇▇▇ Valley Engineers, Inc., Paoli, Pennsylvania, and being more
fully described as follows:
BEGINNING at a point on the southerly Legal Right of May Line of Swedesford Road
- S.R. 1002, 94 feet wide, a corner in common of these and lands now or late of
the Pennsylvania State University: THENCE from the point of beginning, leaving
said right of way line, along said lands, South 28 degrees 04 minutes 35 seconds
East 566.35 feet to a point on line of other lands now or late of the
Pennsylvania State University: THENCE along said lands, along the northerly
Legal Right of Way Line for Limited Access of U.S. ▇▇▇▇▇ 202 - S.R. 0202,
variable width, South 59 degrees 09 minutes 34 seconds West 168.05 feet: THENCE
continuing along said right ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ degrees 24 minutes 32 seconds
West 186.61 feet to a corner of lands now or late of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, et al:
THENCE leaving said right of way line, along said lands, North 28 degrees 04
minutes 35 second West 457.22 feet to a point on the southerly Legal Right of
Way Line of Swedesford Road - S.R. 1002, aforesaid: THENCE along said right of
way line, along a curve to the right having a radius of 13.468.61 feet. an arc
length of 330.94 feet, and a chord bearing North 57 degrees 36 minutes 55
seconds East 330.94 feet to the point of beginning.
