CONTRIBUTION AND LEASEBACK AGREEMENT
dated as of September 18, 1997
by and between
EAGLE WATCH GOLF CLUB LIMITED PARTNERSHIP,
an Illinois limited partnership,
as Transferor,
and
GOLF TRUST OF AMERICA, L.P., a Delaware Limited Partnership,
as Transferee
Eagle Watch Golf Club
Woodstock, Georgia
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION . . . . . . . . . . . . . . . 2
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Rules of Construction. . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE II PURCHASE AND CONTRIBUTION; PAYMENT OF PURCHASE PRICE . . . . . . 8
2.1 Purchase and Contribution. . . . . . . . . . . . . . . . . . . . 8
2.2 Due Diligence Period . . . . . . . . . . . . . . . . . . . . . . 8
2.3 Payment of Base Purchase Price . . . . . . . . . . . . . . . . . 10
ARTICLE III TRANSFEROR'S REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . 11
3.1 Organization and Power . . . . . . . . . . . . . . . . . . . . . 11
3.2 Authorization and Execution. . . . . . . . . . . . . . . . . . . 11
3.3 Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . 11
3.4 No Special Taxes . . . . . . . . . . . . . . . . . . . . . . . . 12
3.5 Compliance with Existing Laws. . . . . . . . . . . . . . . . . . 12
3.6 Real Property. . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.7 Personal Property. . . . . . . . . . . . . . . . . . . . . . . . 13
3.8 Operating Agreements . . . . . . . . . . . . . . . . . . . . . . 13
3.9 Warranties and Guaranties. . . . . . . . . . . . . . . . . . . . 13
3.10 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.11 Condemnation Proceedings; Roadways . . . . . . . . . . . . . . . 13
3.12 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.13 Labor Disputes and Agreements. . . . . . . . . . . . . . . . . . 14
3.14 Financial Information. . . . . . . . . . . . . . . . . . . . . . 14
3.15 Organizational Documents . . . . . . . . . . . . . . . . . . . . 14
3.16 Operation of Property. . . . . . . . . . . . . . . . . . . . . . 14
3.17 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.18 Land Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.19 Public Offering; Preparation of S-11 . . . . . . . . . . . . . . 15
3.20 Hazardous Substances . . . . . . . . . . . . . . . . . . . . . . 16
3.21 Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.22 Curb Cuts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.23 Leased Property. . . . . . . . . . . . . . . . . . . . . . . . . 16
3.24 Sufficiency of Certain Items . . . . . . . . . . . . . . . . . . 16
3.25 Accredited Investor. . . . . . . . . . . . . . . . . . . . . . . 17
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ARTICLE IV TRANSFEREE'S REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . 17
4.1 Organization and Power . . . . . . . . . . . . . . . . . . . . . 17
4.2 Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . 17
4.3 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.4 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.5 Authorization and Execution. . . . . . . . . . . . . . . . . . . 18
4.6 Trade Name . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE V CONDITIONS AND ADDITIONAL COVENANTS. . . . . . . . . . . . . . . 18
5.1 As to Transferee's Obligations . . . . . . . . . . . . . . . . . 18
5.2 As to Transferor's Obligations . . . . . . . . . . . . . . . . . 20
ARTICLE VI CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.1 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.2 Transferor's Deliveries. . . . . . . . . . . . . . . . . . . . . 21
6.3 Transferee's Deliveries. . . . . . . . . . . . . . . . . . . . . 23
6.4 Mutual Deliveries. . . . . . . . . . . . . . . . . . . . . . . . 23
6.5 Closing Costs. . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.6 Income and Expense Allocations . . . . . . . . . . . . . . . . . 24
6.7 Sales Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.8 Post-Closing Adjustments . . . . . . . . . . . . . . . . . . . . 25
ARTICLE VII GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . 25
7.1 Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.2 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.3 Real Estate Broker . . . . . . . . . . . . . . . . . . . . . . . 25
7.4 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 26
7.5 Liquor Licenses. . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE VIII LIABILITY OF TRANSFEREE; INDEMNIFICATION BY TRANSFEROR;
TERMINATION RIGHTS. . . . . . . . . . . . . . . . . . . . . . . 27
8.1 Liability of Transferee. . . . . . . . . . . . . . . . . . . . . 27
8.2 Indemnification by Transferor. . . . . . . . . . . . . . . . . . 27
8.3 Termination by Transferee. . . . . . . . . . . . . . . . . . . . 27
8.4 Termination by Transferor. . . . . . . . . . . . . . . . . . . . 28
8.5 Costs and Attorneys' Fees. . . . . . . . . . . . . . . . . . . . 28
ARTICLE IX MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . 28
9.1 Completeness; Modification . . . . . . . . . . . . . . . . . . . 28
9.2 Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.3 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 28
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9.4 Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.8 Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.9 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.10 Incorporation by Reference . . . . . . . . . . . . . . . . . . . 29
9.11 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.12 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . 30
9.13 No Partnership . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.14 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 30
EXHIBITS
Exhibit A-Legal Description of the Land
Exhibit B-Description of Improvements
Exhibit C-Tangible Personal Property
Exhibit D-Intangible Personal Property
Exhibit E-Golf Course Lease
Exhibit F-Xxxx of Sale - Personal Property
Exhibit G-Deed
Exhibit H-FIRPTA Affidavit of Transferor
Exhibit I-Contracts and Operating Agreements
Exhibit J-Partnership Agreement
Exhibit K-Calculation of Purchase Price
Exhibit L-Due Diligence List
Exhibit M-Schedule of Mortgages
Exhibit N-Accredited Investor Questionnaire
Exhibit O-Transferor's Certificate
Exhibit P-Warranty Disclosure Schedule
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CONTRIBUTION AND LEASEBACK AGREEMENT
SUMMARY SHEET
Transferee: GOLF TRUST OF AMERICA, L.P., a Delaware limited partnership
Transferor: EAGLE WATCH GOLF CLUB LIMITED PARTNERSHIP,
an Illinois limited partnership
Date of
Agreement: September 18, 1997
Golf Course: Eagle Watch Golf Club
(address): Woodstock, Georgia
Trade Name: Eagle Watch Golf Club
Notice Address
of Transferor: E. Xxxx Xxxxxxx
The Crescent Company
0000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
with a copy to: Xxxxx Xxxxxxxxx, Esquire
Sachoff and Xxxxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Notice Address
of Transferee: W. Xxxxxxx Xxxxx, XX
Golf Trust of America, Inc.
00 X. Xxxxx'x Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
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with a copy to: Xxxxx X. Xxxxx, Esq.
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
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CONTRIBUTION AND LEASEBACK AGREEMENT
THIS CONTRIBUTION AND LEASEBACK AGREEMENT (this "Agreement") is
entered into by and between Transferee and Transferor.
RECITALS:
A. Transferor is the owner of that certain Golf Course and related
improvements located on the real property more particularly described in EXHIBIT
A attached hereto (the "Land").
B. Subject to the terms of this Agreement, Transferor hereby agrees
to contribute, assign and convey to Transferee, and Transferee hereby agrees to
acquire from Transferor, all of Transferor's right, title and interest in and to
the following:
1. The Land, together with the golf course, driving range, putting
greens, clubhouse facilities, snack bar, restaurant, pro shop, buildings,
structures, parking lots, improvements, fixtures and other items of real
estate located on the Land (the "Improvements"), as more particularly
described in EXHIBIT B attached hereto.
2. All rights, privileges, easements and appurtenances to the Land
and the Improvements, if any, including, without limitation, all of
Transferor's right, title and interest, if any, in and to all mineral and
water rights and all easements, rights-of-way and other appurtenances used
or connected with the beneficial use or enjoyment of the Land and the
Improvements, including, without limitation, concession agreements for spas
and the like (the Land, the Improvements and all such easements and
appurtenances are sometimes collectively hereinafter referred to as the
"Real Property").
3. All items of tangible personal property and fixtures (if any)
owned or leased by Transferor and located on or used in connection with
the Real Property, including, but not limited to, machinery, equipment,
furniture, furnishings, movable walls or partitions, phone systems and
other control systems, restaurant equipment, computers or trade fixtures,
golf course operation and maintenance equipment, including mowers,
tractors, aerators, sprinklers, sprinkler and irrigation facilities and
equipment, valves or rotors, driving range equipment, athletic training
equipment, office equipment or machines, other decorations, and equipment
or machinery of every kind or nature located on or used in connection with
the operation of the Real Property whether on or off-site, including all
warranties and guaranties associated therewith (the "Tangible Personal
Property"), excluding all golf carts, whether owned or leased, which shall
be retained by Transferor. A schedule of the Tangible Personal Property is
attached to this Agreement as EXHIBIT C, indicating whether such Tangible
Personal Property is owned or leased. The schedule of Tangible Personal
Property shall also indicate
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those items of personal property, such as art and antiques, which is
excluded from the personal property being conveyed hereby.
4. All intangible personal property owned or possessed by Transferor
and used in connection with the ownership, operation, leasing or
maintenance of the Real Property or the Tangible Personal Property, all
goodwill attributed to the Property, and any and all trademarks and
copyrights, guarantees, Authorizations (as hereinafter defined), general
intangibles, business records, plans and specifications, surveys and title
insurance policies pertaining to the Property, all licenses, permits and
approvals with respect to the construction, ownership, operation or
maintenance of the Property, any unpaid award for taking by condemnation or
any damage to the Real Property by reason of a change of grade or location
of or access to any street or highway, excluding (a) any of the aforesaid
rights that Transferee elects not to acquire and (b) the Current Assets, as
hereinafter defined (collectively, the "Intangible Personal Property"). A
schedule of the Intangible Personal Property is attached to this Agreement
as EXHIBIT D. The Intangible Personal Property shall not include the right
to use the Trade Name, which shall be retained by Transferor and
transferred to the lessee of the Golf Course (and further provided in no
event shall Transferee have the right to use such trade name in connection
with any other property owned by Transferee or any affiliate of
Transferee). (The Real Property, Tangible Personal Property and Intangible
Personal Property are sometimes collectively referred to as the
"Property".)
C. Upon the acquisition by the Transferee of the Property, the
Transferee will lease the Property to an affiliate of Transferor pursuant to a
lease (the "Golf Course Lease"), substantially in the form attached hereto as
EXHIBIT E.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
undertakings of the parties hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, it is agreed:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
1.1 DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meanings set forth on the Summary Sheet. The following terms shall
have the indicated meanings:
"ACT OF BANKRUPTCY" shall mean if a party hereto or any general
partner thereof shall (a) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its Property, (b) admit in writing its
inability to pay its debts as they become due, (c) make
2
a general assignment for the benefit of its creditors, (d) file a voluntary
petition or commence a voluntary case or proceeding under the Federal
Bankruptcy Code (as now or hereafter in effect) or any new bankruptcy
statute, (e) be adjudicated bankrupt or insolvent, (f) file a petition
seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up or composition or adjustment of debts,
(g) fail to controvert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary case or
proceeding under the Federal Bankruptcy Code (as now or hereafter in effect)
or any new bankruptcy statute, or (h) take any corporate or partnership
action for the purpose of effecting any of the foregoing; or if a proceeding
or case shall be commenced, without the application or consent of a party
hereto or any general partner thereof, in any court of competent jurisdiction
seeking (1) the liquidation, reorganization, dissolution or winding-up, or
the composition or readjustment of debts, of such party or general partner,
(2) the appointment of a receiver, custodian, trustee or liquidator or such
party or general partner or all or any substantial part of its assets, or (3)
other similar relief under any law relating to bankruptcy, insolvency,
reorganization, winding-up or composition or adjustment of debts, and such
proceeding or case shall continue undismissed; or an order (including an
order for relief entered in an involuntary case under the Federal Bankruptcy
Code, as now or hereafter in effect) judgment or decree approving or ordering
any of the foregoing shall be entered and continue unstayed and in effect,
for a period of sixty (60) consecutive days.
"AUTHORIZATIONS" shall mean all licenses, permits and approvals
required by any governmental or quasi-governmental agency, body or officer for
the ownership, operation and use of the Property or any part thereof as a golf
course with the existing uses and operations, including clubhouse, bar and
related facilities, as applicable.
"BASE PURCHASE PRICE" shall mean Six Million Four Hundred Thousand
Dollars ($6,400,000).
"XXXX OF SALE - PERSONAL PROPERTY" shall mean a xxxx of sale
conveying title to the Tangible Personal Property and Intangible Personal
Property from Transferor to Transferee, substantially in the form of EXHIBIT F
attached hereto.
"CLOSING" shall mean the time the Deed and each of the deliveries
to be made by Transferor (as provided in Section 6.2) and Transferee (as
provided in Section 6.3) are made and each of the Closing conditions of
Transferee and Transferor in Sections 5.1 and 5.2, respectively, have been
satisfied or waived.
"CLOSING DATE" shall mean the date on which the Closing occurs.
"CLOSING STATEMENTS" shall have the meaning set forth in Section
6.4(a).
"CONTINGENT PURCHASE PRICE" shall mean the amount as calculated by
the procedure set forth in Exhibit K attached hereto.
3
"CURRENT ASSETS" shall mean cash, accounts receivable, Inventory
and Restaurant Supplies (each as hereinafter defined) held by Transferor prior
to the Closing Date.
"DEED" shall mean a grant deed or special warranty deed,
substantially in the form of EXHIBIT G attached hereto (or lease assignment, if
the Property is owned by Transferor pursuant to a ground lease), in form and
substance satisfactory to Transferee, conveying the title of Transferor to the
Real Property, with such grant or warranty covenants of title from Transferor to
Transferee as are customary in the state in which the Property is located,
subject only to Permitted Title Exceptions. If there is any difference between
the description of the Land, as shown on EXHIBIT A attached hereto and the
description of the Land as shown on the Survey, the description of the Land to
be contained in the Deed and the description of the Land set forth in the
Owner's Title Policy, as defined herein, shall conform to the description shown
on the Survey.
"DISCLOSURE SCHEDULE" shall have the meaning set forth in Section
2.2(e).
"DUE DILIGENCE PERIOD" shall mean the period commencing at 9:00
a.m., Eastern time, on the date hereof, and continuing through 5:00 p.m.,
Eastern time, on the date that is thirty (30) days from the date hereof.
"EMPLOYMENT AGREEMENTS" shall mean all employment agreements,
written or oral, between Transferor or its managing agent and the persons
employed with respect to the Property in effect as of the date hereof.
"ENVIRONMENTAL CLAIM" shall mean any administrative, regulatory or
judicial action, suit, demand, letter, claim, lien, notice of non-compliance or
violation, investigation or proceeding relating in any way to any Environmental
Laws or any permit issued under any Environmental Law including, without
limitation, (i) by governmental or regulatory authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Laws, and (ii) by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from Hazardous Substances or arising from alleged injury or threat of
injury to health, safety or the environment.
"ENVIRONMENTAL LAWS" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.;
the Hazardous Materials Transportation Act, as amended, 49 U.S.C. Section 1801,
et seq.; the Superfund Amendments and reauthorization Act of 1986, Pub. L.
99-499 and 99-563; the Occupational Safety and Health Act of 1970, as
amended, 29 U.S.C. Section 651, et seq.; the Clean Air Act, as amended, 42
U.S.C. Section 7401, et seq.; the Safe Drinking Water Act, as amended, 42
U.S.C. Section 201, et seq.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Section 1251, et seq.; and all federal, state and local
environmental health and safety statutes, ordinance, codes,
4
rules, regulations, orders and decrees regulating, relating to or imposing
liability or standards concerning or in connection with Hazardous Substances.
"ESCROW AGENT" shall mean the Title Company.
"FIRPTA CERTIFICATE" shall mean the affidavit of Transferor under
Section 1445 of the Internal Revenue Code certifying that Transferor is not a
foreign corporation, foreign partnership, foreign trust, foreign estate or
foreign person (as those terms are defined in the Internal Revenue Code and the
Income Tax Regulations), substantially in the form of EXHIBIT H attached hereto.
"GOLF CLUB" shall mean any organization, club or group whereby
memberships are offered by Transferor for purchase in connection with golfing
privileges at the Property.
"GOLF COURSE LEASE" shall have the meaning set forth in Recital C.
"GOVERNMENTAL BODY" shall mean any federal state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
"HAZARDOUS SUBSTANCES" shall mean any substance, material, waste,
gas or particulate matter which is regulated by any local, state of federal
governmental authority, including but not limited to any material or substance
which is (i) defined as a "hazardous waste", "hazardous material", or
"restricted hazardous waste" or words of similar import under any provision of
any Environmental Law; (ii) petroleum or petroleum products; (iii) asbestos;
(iv) polychlorinated biphenyl; (v) radioactive material; (vi) radon gas; (vii)
designated as a "hazardous substance" pursuant to Section 311 of the Clean Water
Act, 33 U.S.C. Section 1251, et seq. (42 U.S.C. Section 1317); (viii) defined as
a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903); or (ix)
defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601,
et seq. (42 U.S.C. Section 9601).
"IMPROVEMENTS" shall have the meaning set forth in Recital B(1).
"INTANGIBLE PERSONAL PROPERTY" shall have the meaning set forth in
Recital B(4).
"INVENTORY" shall mean the merchandise located in any pro shop or
similar facility and held for sale in the ordinary course of Transferor's
business.
"LAND" shall have the meaning set forth in Recital A.
"MORTGAGE INDEBTEDNESS" shall have the meaning set forth in Section
2.2(d).
5
"OPERATING AGREEMENTS" shall mean any management agreements,
maintenance or repair contracts, service contracts, supply contracts and other
agreements, if any, in effect with respect to the construction, ownership,
operation, occupancy or maintenance of the Property in force and effect as of
the date hereof, as more particularly set forth on EXHIBIT I attached hereto.
"OWNER'S SHARES" shall mean limited partnership interests in the
Partnership.
"OWNER'S TITLE POLICY" shall mean a 1970 Form B American Land Title
Association extended coverage owner's policy of title insurance issued to
Transferee by the Title Company, pursuant to which the Title Company insures
Transferee's ownership of fee simple title (or ground lease interest, as
applicable) to the Real Property (including the marketability thereof) subject
only to Permitted Title Exceptions and shall include those title endorsements
required by Transferee. The Owner's Title Policy shall insure Transferee in the
amount designated by Transferee and shall be acceptable in form and substance to
Transferee.
"PARTNERSHIP AGREEMENT" shall mean that certain amended and
restated limited partnership agreement relating to Transferee, which shall be
substantially in the form attached hereto as EXHIBIT J.
"PERMITTED TITLE EXCEPTIONS" shall mean those exceptions to title
to the Real Property that are satisfactory to Transferee as determined under
this Agreement, and as evidenced by a pro forma title report.
"PRELIMINARY TITLE REPORT" shall have the meaning set forth in
Section 2.2(d).
"PROPERTY" shall have the meaning set forth in Recital B(4).
"PURCHASE PRICE" shall mean the sum of the Base Purchase Price and
the Contingent Purchase Price.
"REAL PROPERTY" shall have the meaning set forth in Recital B(2).
"RESTAURANT SUPPLIES" shall mean the consumable goods, supplies
(including beverages) and all silverware, glassware, napkins, tablecloths, paper
goods and related goods necessary to efficiently operate the restaurant, bar,
lounge or snack shop located upon or within the Improvements.
"SEC" shall mean the United States Securities and Exchange
Commission.
"SECURITIES" shall have the meaning set forth in Section 7.4.
6
"STATE" shall mean the state or commonwealth in which the
Property is located.
"SUMMARY SHEET" shall mean the summary page attached to this
Agreement and incorporated herein by reference.
"SURVEY" shall mean the survey prepared pursuant to Section
2.2(c).
"TANGIBLE PERSONAL PROPERTY" shall have the meaning set forth in
Recital B(3).
"TITLE COMPANY" shall mean a title insurance company selected by
Transferee and authorized to conduct a title insurance business in the State.
"TITLE OBJECTIONS" shall have the meaning set forth in Section
2.2(d).
"TRANSFEROR'S ORGANIZATIONAL DOCUMENTS" shall mean the current
organizational documents of Transferor.
"UTILITIES" shall mean public sanitary and storm sewers, natural
gas, telephone, public water facilities, electrical facilities and all other
utility facilities and services necessary for the operation and occupancy of
the Property.
"WARN ACT" shall mean the Worker Adjustment Retraining and
Notification Act, as amended.
1.2 RULES OF CONSTRUCTION. The following rules shall apply to the
construction and interpretation of this Agreement:
(a) Singular words shall connote the plural number as well as
the singular and vice versa, and the masculine shall include the feminine
and the neuter.
(b) All references herein to particular articles, sections,
subsections, clauses or exhibits are references to articles, sections,
subsections, clauses or exhibits of this Agreement.
(c) The table of contents and headings contained herein are
solely for convenience of reference and shall not constitute a part of this
Agreement nor shall they affect its meaning, construction or effect.
(d) Each party hereto and its counsel have reviewed and revised
(or requested revisions of) this Agreement and have participated in the
preparation of this Agreement, and therefore any usual rules of
construction requiring that ambiguities are to be resolved against a
particular party shall not be applicable in the construction and
interpretation of this Agreement or any exhibits hereto.
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ARTICLE II
PURCHASE AND CONTRIBUTION; PAYMENT OF PURCHASE PRICE
2.1 PURCHASE AND CONTRIBUTION. Transferor agrees to contribute and
Transferee agrees to acquire the Property for the Purchase Price.
2.2 DUE DILIGENCE PERIOD.
(a) Transferee shall have the right, during the Due Diligence
Period, and thereafter if Transferee notifies Transferor that Transferee
has elected to proceed to Closing in the manner described below, to enter
upon the Real Property and to perform, at Transferor's expense, such
surveying, engineering, and environmental studies and investigations as
Transferee may deem appropriate. If such tests, studies and investigations
warrant, in Transferee's sole, absolute and unreviewable discretion, the
purchase of the Property for the purposes contemplated by Transferee, then
Transferee may elect to proceed to Closing and shall so notify Transferor
and the Escrow Agent, in writing, prior to the expiration of the Due
Diligence Period. If for any reason Transferee does not so notify
Transferor and Escrow Agent of its determination to proceed to Closing
prior to the expiration of the Due Diligence Period, or if Transferee
notifies Transferor and Escrow Agent, in writing, prior to the expiration
of the Due Diligence Period that it has determined not to proceed to
Closing, this Agreement automatically shall terminate and Transferee and
Escrow Agent shall be released from any further liability or obligation
under this Agreement and, if requested by Transferor, Transferee will
deliver such reports and materials to Transferor.
(b) During the Due Diligence Period, Transferor shall make
available to Transferee, its agents, auditors, engineers, attorneys and
other designees, for inspection and/or copying, copies of all existing
architectural and engineering studies, surveys, title insurance policies,
zoning and site plan materials, correspondence, environmental audits and
reviews, books, records, tax returns, bank statements, financial
statements, fee schedules and any and all other material or information
relating to the Property which are in, or come into, Transferor's
possession or control, or which Transferor may attain. Such information is
more particularly described in EXHIBIT L attached hereto, as the same may
be amended or supplemented by Transferor from time to time.
(c) Within thirty (30) days from the date hereof, if requested
by Transferee, Transferor shall deliver to Transferee an ALTA/ACSM survey
or a boundary survey, as reasonably required by Transferee, of the Land and
the Improvements, prepared by a surveyor licensed to practice as such in
the State, bearing a date not earlier than sixty (60) days from the date of
its delivery and certified to both Transferee, Transferor and the Title
Company (and any lender or other party designated by Transferee), showing
the legal description of the Land, all dimensions thereof, and showing the
location of Improvements on the Land and the setbacks thereof from the
property line, as well as the setbacks
8
required by applicable zoning laws or regulations (the "Survey"). The
Survey shall locate all easements which serve and affect the Land. The
Survey shall reflect that no buildings or improvements located on any other
property encroach upon the Land and that the Improvements located upon the
Land do not encroach upon any other property. The surveyor preparing the
Survey shall certify that (i) the Survey is an accurate Survey of the Land
and the Improvements, (ii) that the Survey was made under the surveyor's
supervision, (iii) that the Survey meets (a) the requirements of the Title
Company for the issuance of the Owner's Title Policy free of any general
survey exception, and (b) the minimum technical standards for land boundary
surveys with improvements, set forth by applicable statutes or applicable
professional organizations, and (iv) all buildings and other structures and
their relation to the property lines are shown and that there are no
encroachments, overlaps, boundary line disputes, easements, or claims of
easements visible on the ground, other than those shown on the Survey. If
Transferee has any objection to Survey matters, the same shall be treated
for all purposes as Title Objections within the provisions of this
Agreement.
(d) Transferor agrees to provide to Transferee, within five (5)
business days following the date of this Agreement, a copy of any existing
title insurance policies which Transferor may have in its possession or
control covering the Real Property, together with legible copies of all
exception documents referred to therein. During the Due Diligence Period,
Transferee, at its expense, shall cause an examination of title to the
Property to be made and a preliminary title report to be issued (the
"Preliminary Title Report"), and, prior to the expiration of the Due
Diligence Period, shall notify Transferor of any defects in title shown by
such examination that Transferee is unwilling to accept by delivering a pro
forma copy of the Preliminary Title Report that reflects such unacceptable
defects in title, which shall be designated as the Title Objections.
Within ten (10) days after such notification, Transferor shall notify
Transferee whether Transferor is willing to cure such defects. If
Transferor is willing to cure such defects, Transferor shall act promptly
and diligently to cure such defects at its expense. If any of such defects
consist of mortgages, deeds of trust, construction or mechanics' liens, tax
liens or other liens or charges in a fixed sum or capable of computation as
a fixed sum, then, to that extent, and notwithstanding the foregoing,
Transferor shall be obligated to pay and discharge such defects at Closing,
except for the mortgages scheduled and set forth in EXHIBIT M attached
hereto (the "Mortgage Indebtedness") which Transferee shall take subject to
as provided in Section 2.3(a). For such purposes, Transferor may use all
or a portion of the cash to close. If Transferor is unable to cure such
defects by Closing, after having attempted to do so diligently and in good
faith, Transferee shall elect (1) to waive such defects and proceed to
Closing without any abatement in the Purchase Price, or (2) to terminate
this Agreement. Transferor shall not, after the date of this Agreement,
subject the Property to any liens, encumbrances, leases, covenants,
conditions, restrictions, easements or other title matters or seek any
zoning changes or take any other action which may affect or modify the
status of title without Transferee's prior written consent. All title
matters revealed by
9
Transferee's title examination and not objected to by Transferee as
provided above shall be deemed Permitted Title Exceptions. If Transferee
shall fail to examine title and notify Transferor of any such Title
Objections by the end of the Due Diligence Period, all such title
exceptions (other than those rendering title unmarketable and those that
are to be paid at Closing as provided above) shall be deemed Permitted
Title Exceptions. Notwithstanding the foregoing, Transferee shall not be
required to take title to the Property subject to any matters which may
arise subsequent to the effective date of its examination of title to the
Property made during the Due Diligence Period.
(e) Transferor shall deliver to Transferee within fourteen (14)
days after the date of the execution of this Agreement by Transferor and
Transferee a disclosure schedule that accurately and completely identifies
and describes (a) all Employment Agreements (including name of employee,
social security number, wage or salary, accrued vacation benefits, other
fringe benefits, etc.), and (b) an updated Golf Club membership list,
setting forth the names of the members of the Golf Club, the length of
their membership, the payment obligations of the members and a summary of
the terms of the memberships (the "Disclosure Schedule").
(f) Transferor shall deliver to Transferee within thirty (30)
days after the date of execution of this Agreement by Transferor and
Transferee current searches of all Uniform Commercial Code financing
statements filed with the Secretary of State of the State respecting
Transferor, together with searches for pending litigation, tax liens and
bankruptcy filings in all appropriate jurisdictions.
2.3 PAYMENT OF BASE PURCHASE PRICE. The Base Purchase Price shall be
paid to Transferor in the following manner:
(a) Transferee shall (i) take subject to the Mortgage
Indebtedness in an aggregate amount not in excess of the Base Purchase
Price and (ii) receive a credit against the Base Purchase Price in an
amount equal to a sum necessary to pay off in full the Mortgage
Indebtedness, including any prepayment premium, and to obtain a release of
such deeds of trust or mortgages evidencing the Mortgage Indebtedness as of
the Closing Date, as evidenced by a payoff letter from the beneficiary of
each such deed of trust or mortgage in form and substance satisfactory to
Transferee and the Title Company.
(b) Transferee shall pay in cash an amount necessary to pay for
certain tax liabilities of Transferor and the cost incurred by Transferor
in connection with the preparation of certain audited financial statements,
due diligence costs and closing costs and to permit the liquidation of
certain third party interests in Transferor, as set forth in a schedule to
be prepared by Transferor and delivered to Transferee prior to the
expiration of the Due Diligence Period, which schedule shall be subject to
Transferee's review and approval, which approval shall not be unreasonably
withheld.
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(c) Transferee shall pay the balance of the Base Purchase Price
to Transferor in Owner's Shares. The number of Owner's Shares required for
such payment shall be the quotient obtained by dividing the balance of the
Base Purchase Price by the lesser of (i) $27.00 or (ii) the closing price
of the common stock of Golf Trust of America, Inc. on the business day
immediately preceding the Closing Date.
ARTICLE III
TRANSFEROR'S REPRESENTATIONS, WARRANTIES AND COVENANTS
To induce Transferee to enter into this Agreement and to purchase
the Property, and to pay the Purchase Price therefor, Transferor hereby makes
the following representations, warranties and covenants with respect to the
Property, subject to the Warranty Disclosure Schedule attached hereto as
EXHIBIT P, upon each of which Transferor acknowledges and agrees that
Transferee is entitled to rely and has relied:
3.1 ORGANIZATION AND POWER. Transferor is duly formed or organized,
validly existing and in good standing under the laws of the state of its
formation and is qualified to transact business in the State and has all
requisite powers and all governmental licenses, authorizations, consents and
approvals to carry on its business as now conducted and to enter into and
perform its obligations hereunder and under any document or instrument
required to be executed and delivered by or on behalf of Transferor hereunder.
3.2 AUTHORIZATION AND EXECUTION. This Agreement has been, and each
of the agreements and certificates of Transferor to be delivered to
Transferee at Closing as provided in Section 5.1 will be, duly authorized by
all necessary action on the part of Transferor, has been duly executed and
delivered by Transferor, constitutes the valid and binding agreement of
Transferor and is enforceable against Transferor in accordance with its
terms. There is no other person or entity who has an ownership interest in
the Property or whose consent is required in connection with Transferor's
performance of its obligations hereunder. All action required pursuant to
this Agreement necessary to effectuate the transactions contemplated herein
has been, or will at Closing be, taken promptly and in good faith by
Transferor and its representatives and agents.
3.3 NONCONTRAVENTION. The execution and delivery of, and the
performance by Transferor of its obligations under, this Agreement do not and
will not contravene, or constitute a default under, any provision of
applicable law or regulation, Transferor's Organizational Documents or any
agreement, judgment, injunction, order, decree or other instrument binding
upon Transferor, or result in the creation of any lien or other encumbrance
on any asset of Transferor. There are no outstanding agreements (written or
oral) pursuant to which Transferor (or any predecessor to or representative
of Transferor) has agreed to contribute or has granted an option or right of
first refusal to purchase the Property or any part thereof. Other than the
rights of tenants, as tenants only, under the Leases, there are no purchase
contracts, options or other agreements of any kind, written or oral, recorded
or unrecorded, whereby any person or entity other
11
than Transferor will have acquired or will have any basis to assert any right,
title or interest in, or right to possession, use, enjoyment or proceeds of,
all or any portion of the Property. There are no rights, subscriptions,
warrants, options, conversion rights or agreements of any kind outstanding to
purchase or to otherwise acquire any interest or profit participation of any
kind in the Property or any part thereof.
3.4 NO SPECIAL TAXES. Transferor has no knowledge of, nor has it
received any notice of, any special taxes or assessments relating to the
Property or any part thereof, including taxes relating to the business of the
Property, or any planned public improvements that may result in a special tax
or assessment against the Property, that are not otherwise disclosed in the
Preliminary Title Report. To the best of Transferor's knowledge, there is
not any proposed increase in the assessed valuation of the Real Property for
tax purposes (except as may relate to the transfer contemplated by this
Agreement).
3.5 COMPLIANCE WITH EXISTING LAWS. Transferor possesses all
Authorizations, each of which is valid and in full force and effect, and no
provision, condition or limitation of any of the Authorizations has been
breached or violated. Transferor has not misrepresented or failed to
disclose any relevant fact in obtaining all Authorizations, and Transferor
has no knowledge of any change in the circumstances under which any of those
Authorizations were obtained that result in their termination, suspension,
modification or limitation. Transferor has not taken any action (or failed
to take any action), the omission of which would result in the revocation of
any of the Authorizations. Transferor has no knowledge, nor has it received
notice within the past three years, of any existing or threatened violation
of any provision of any applicable building, zoning, subdivision,
environmental or other governmental ordinance, resolution, statute, rule,
order or regulation, including but not limited to those of environmental
agencies or insurance boards of underwriters, with respect to the ownership,
operation, use, maintenance or condition of the Property or any part thereof,
or requiring any repairs or alterations other than those that have been made
prior to the date hereof.
3.6 REAL PROPERTY. To the best of Transferor's knowledge, (i) the
Improvements conform in all respects to all legal requirements, (ii) all
easements necessary or appropriate for the use or operation of the Property
have been obtained, (iii) all contractors and subcontractors retained by
Transferor who have performed work on or supplied materials to the Property
have been fully paid, and all materials used at or on the Property have been
fully paid for, (iv) the Improvements have been completed in all material
respects in a workmanlike manner of first-class quality, and (v) all
equipment necessary or appropriate for the use or operation of the Property
has been installed and is presently operative in good working order.
Transferor has not received any written notice which is still in effect that
there is, and, to the best of Transferor's knowledge, there does not exist,
any violation of a condition or agreement contained in any easement,
restrictive covenant or any similar instrument or agreement effecting the
Real Property, or any portion thereof.
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3.7 PERSONAL PROPERTY. All of the Tangible Personal Property and
Intangible Personal Property being conveyed by Transferor to Transferee is
free and clear of all liens and encumbrances and will be so on the Closing
Date and Transferor has good, merchantable title thereto and the right to
convey same in accordance with the terms of this Agreement.
3.8 OPERATING AGREEMENTS. Each of the Operating Agreements may be
terminated upon not more than thirty (30) days prior written notice and
without the payment of any penalty, fee, premium or other amount. Transferor
has performed all of its obligations under each of the Operating Agreements
and no fact or circumstance has occurred which, by itself or with the passage
of time or the giving of notice or both, would constitute a default under any
of the Operating Agreements. Transferor shall not enter into any new
Operating Agreements, supply contract, vending or service contract or other
agreements with respect to the Property, nor shall Transferor enter into any
agreements modifying the Operating Agreements, unless (a) any such agreement
or modification will not bind Transferee or the Property after the Closing
Date, or (b) Transferor has obtained Transferee's prior written consent to
such agreement or modification. Transferor acknowledges that Transferee will
not assume any of the Operating Agreements and none of the Operating
Agreements will be binding on Transferee or the Property after Closing.
3.9 WARRANTIES AND GUARANTIES. Transferor shall not before or after
Closing, release or modify any warranties or guarantees, if any, of
manufacturers, suppliers and installers relating to the Improvements and the
Personal Property or any part thereof, except with the prior written consent
of Transferee.
3.10 INSURANCE. All of Transferor's insurance policies are valid and
in full force and effect, all premiums for such policies were paid when due
and all future premiums for such policies (and any replacements thereof)
shall be paid by Transferor on or before the due date therefor. Transferor
shall pay all premiums on, and shall not cancel or voluntarily allow to
expire, any of Transferor's insurance policies unless such policy is
replaced, without any lapse of coverage, by another policy or policies
providing coverage at least as extensive as the policy or policies being
replaced. Transferor has not received any notice from any insurance company
of any defect or inadequacies in the Property to any part thereof which would
adversely affect the insurability of the Property, or which would increase
the cost of insurance beyond that which would ordinarily and customarily be
charged for similar properties in the vicinity of the Real Property. The
Property is fully insured in accordance with prudent and customary practice.
3.11 CONDEMNATION PROCEEDINGS; ROADWAYS. Transferor has received no
notice of any condemnation or eminent domain proceeding pending or threatened
against the Property or any part thereof. Transferor has no knowledge of any
change or proposed change in the route, grade or width of, or otherwise
affecting, any street or road adjacent to or serving the Real Property. To
the best of Transferor's knowledge, no fact or condition exists which would
result in the termination or material impairment of access to the Real
Property from adjoining public or private streets or ways or which
13
could result in discontinuation of presently available or otherwise necessary
sewer, water, electric, gas, telephone or other utilities or services.
3.12 LITIGATION. Except as disclosed in writing to Transferor, there
is no action, suit or proceeding pending or known to be threatened against or
affecting Transferor or any of its properties in any court, before any
arbitrator or before or by any Governmental Body which (a) in any manner
raises any question affecting the validity or enforceability of this
Agreement or any other agreement or instrument to which Transferor is a party
or by which it is bound and that is or is to be used in connection with, or
is contemplated by, this Agreement, (b) could materially and adversely affect
the business, financial position or results of operations of Transferor, (c)
could materially and adversely affect the ability of Transferor to perform
its obligations hereunder, or under any document to be delivered pursuant
hereto, (d) could create a lien on the Property, any part thereof or any
interest therein, (e) the subject matter of which concerns any past or
present employee of Transferor or its managing agent, or (f) could otherwise
adversely materially affect the Property, any part thereof or any interest
therein or the use, operation, condition or occupancy thereof.
3.13 LABOR DISPUTES AND AGREEMENTS. There are no labor disputes
pending or, to the best of Transferor's knowledge, threatened as to the
operation or maintenance of the Property or any part thereof. Transferor is
not a party to any union or other collective bargaining agreement with
employees employed in connection with the ownership, operation or maintenance
of the Property. Transferor is not a party to any employment contracts or
agreements, other than the Employment Agreements, and neither Transferor nor
its managing agent will, between the date hereof and the Closing Date, enter
into any new employment contracts or agreements, amend any existing
Employment Agreement, except with the prior written consent of Transferee.
Transferor acknowledges that Transferee will not assume any of the Employment
Agreements and Transferor has complied with and shall be responsible for
compliance with the WARN Act and any other applicable employment-related laws
or ordinances. Transferor has complied with the requirements of the federal
Immigration and Reform Control Act respecting the employment of undocumented
workers.
3.14 FINANCIAL INFORMATION. To the best of Transferor's knowledge,
all of Transferor's financial information, including, without limitation, all
books and records and financial statements, is correct and complete in all
material respects and presents accurately the results of the operations of
the Property for the periods indicated.
3.15 ORGANIZATIONAL DOCUMENTS. Transferor's Organizational Documents
are in full force and effect and have not been modified or supplemented, and
no fact or circumstance has occurred that, by itself or with the giving of
notice or the passage of time or both, would constitute a default thereunder.
3.16 OPERATION OF PROPERTY. Transferor covenants, that between the
date hereof and the Closing Date, it will (a) operate the Property in the
usual, regular and ordinary manner consistent with Transferor's prior
practice, (b) maintain its books of
14
account and records in the usual, regular and ordinary manner, in accordance
with sound accounting principles applied on a basis consistent with the basis
used in keeping its books in prior years and (c) use all reasonable efforts
to preserve intact its present business organization, keep available the
services of its present officers, partners and employees and preserve its
relationships with suppliers and others having business dealings with it.
Except as otherwise permitted hereby, from the date hereof until Closing,
Transferor shall not take any action or fail to take action the result of
which would have a material adverse effect on the Property or Transferee's
ability to continue the operation thereof after the Closing Date in
substantially the same manner as presently conducted, or which would cause
any of the representations and warranties contained in this Article III to be
untrue as of Closing.
From and after the execution and delivery of this Agreement, Transferor
shall not, other than in the ordinary course of business, (a) make any
agreements which shall be binding upon Transferee with respect to the
Property, or (b) reduce or cause to be reduced any green fees, membership
fees, tournament fees, driving range fees or any other charges over which
Transferor has operational control. Between the date hereof and the Closing
Date, if and to the extent requested by Transferee, Transferor shall deliver
to Transferee such periodic information with respect to the above information
as Transferor customarily keeps internally for its own use. Transferor
agrees that it will operate the Property in accordance with the provisions of
this Section 3.16 between the date hereof and the Closing Date.
3.17 BANKRUPTCY. No Act of Bankruptcy has occurred with respect to
Transferor.
3.18 LAND USE. The current use and occupancy of the Property for
golfing and all other related purposes (including, without limitation, the
sale of merchandise and food and beverages) are permitted as a matter of
right as a principal use under all laws and regulations applicable thereto
without the necessity of any special use permit, special exception or other
special permit, permission or consent and Transferor is not aware of any
proposal to change or restrict such use. Transferor has all necessary
certificates of occupancy or completion to operate the Property as presently
operated and there are no unfulfilled conditions respecting the development
of the Property.
3.19 PUBLIC OFFERING; PREPARATION OF S-11. Transferor shall cooperate
in the preparation by an affiliate of Transferee of a Form S-11 or, if
applicable, a Form S-3 under the Securities Act of 1933, as amended, to be
filed with the SEC in connection with any public offering (the "Registered
Offering"). The Registered Offering shall be for purposes of selling shares
of common stock in an affiliate of Transferee. Transferor shall provide
Transferee access to all financial and other information relating to the
Property which would be sufficient to enable them to prepare financial
statements in conformity with Regulation S-X of the SEC and to enable the
Transferee to prepare a registration statement, report or disclosure
statement for filing with the SEC. Transferor shall also provide to
Transferee's representatives a signed representation letter which
15
would be sufficient to enable an independent public accountant to render an
opinion on the financial statements related to the Property.
3.20 HAZARDOUS SUBSTANCES. Except as may be disclosed in the Phase I
environmental assessment report for the Property, to the best of Transferor's
knowledge, (i) no Hazardous Substances are or have been located on (except in
immaterial amounts used in the ordinary course for the operation or
maintenance of the Property by Transferor in accordance with all applicable
laws), in or under the Property or have been released into the environment,
or discharged, placed or disposed of at, on or under the Property; (ii) no
underground storage tanks are, or have been, located at the Property; (iii)
the Property has never been used to store, treat or dispose of Hazardous
Substances; and (iv) the Property and its prior uses comply with, and at all
times have complied with all applicable Environmental Laws or any other
governmental law, regulation or requirement relating to environmental and
occupational health and safety matters and Hazardous Substances. To the best
of Transferor's knowledge, there currently exist no facts or circumstances
that could reasonably be expected to give rise to a material non-compliance
with Environmental Laws, material environmental liability or material
Environmental Claim.
3.21 UTILITIES. All Utilities required for the operation of the
Property either enter the Property through adjoining streets, or they pass
through adjoining land and do so in accordance with valid public easements or
private easements, and all of said Utilities are installed and are in good
working order and repair and operating as necessary for the operation of the
Property and all installation and connection charges therefor have been paid
in full. The sewage, sanitation, plumbing, water retention and detention,
refuse disposal and utility facilities in and on and/or servicing the Real
Property are adequate to service the Real Property as it is currently being
used and the Real Property's utilization of such facilities is in compliance
with all applicable governmental and environmental protection authorities'
laws, rules, regulations and requirements.
3.22 CURB CUTS. All curb cut street opening permits or licenses
required for vehicular access to and from the Property from any adjoining
public street have been obtained and paid for and are in full force and
effect.
3.23 LEASED PROPERTY. The Personal Property identified on EXHIBIT C
is all of the leased property at the Property, and such exhibit reflects the
date of each such lease, the name of the lessor, the name of the lessee, the
term of each such lease, the lease payment terms and a description of the
property demised by each such lease. All leases of such property are in good
standing and free from default.
3.24 SUFFICIENCY OF CERTAIN ITEMS. The Property, together with the
Current Assets, contain an amount of equipment and supplies, which is
sufficient to efficiently operate and maintain the Property in the manner in
which it is normally operated and maintained.
16
3.25 ACCREDITED INVESTOR. Transferor and all equity owners of
Transferor are as of the date hereof, and as of the Closing Date shall be,
Accredited Investors. Concurrent herewith Transferor shall execute and
deliver to Transferee the Accredited Investor Questionnaire attached hereto
as EXHIBIT N.
Each of the representations, warranties and covenants contained in this
Article III are intended for the benefit of Transferee. Each of said
representations, warranties and covenants shall survive the Closing for a
period of one (1) year, at which time they shall expire unless prior to such
time Transferee has made a formal, written claim alleging a breach of one or
more of the representations, warranties or covenants. No investigation,
audit, inspection, review or the like conducted by or on behalf of Transferee
shall be deemed to terminate the effect of any such representations,
warranties and covenants, it being understood that Transferee has the right
to rely thereon and that each such representation, warranty and covenant
constitutes a material inducement to Transferee to execute this Agreement and
to close the transaction contemplated hereby and to pay the Purchase Price to
Transferor.
ARTICLE IV
TRANSFEREE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
To induce Transferor to enter into this Agreement and to contribute the
Property, Transferee hereby makes the following representations, warranties
and covenants, upon each of which Transferee acknowledges and agrees that
Transferor is entitled to rely and has relied:
4.1 ORGANIZATION AND POWER. Transferee is duly formed or organized,
validly existing and in good standing under the laws of the state of its
formation and has all governmental licenses, Authorizations, consents and
approvals required to carry on its business as now conducted and to enter
into and perform its obligations under this Agreement and any document or
instrument required to be executed and delivered on behalf of Transferee
hereunder.
4.2 NONCONTRAVENTION. The execution and delivery of this Agreement
and the performance by Transferee of its obligations hereunder do not and
will not contravene, or constitute a default under, any provisions of
applicable law or regulation, Partnership Agreement or any agreement,
judgment, injunction, order, decree or other instrument binding upon
Transferee or result in the creation of any lien or other encumbrance on any
asset of Transferee.
4.3 LITIGATION. There is no action, suit or proceeding, pending or
known to be threatened, against or affecting Transferee in any court or
before any arbitrator or before any administrative panel or otherwise that
(a) could materially and adversely affect the business, financial position or
results of operations of Transferee, or (b) could materially and adversely
affect the ability of Transferee to perform its obligations hereunder, or
under any document to be delivered pursuant hereto.
17
4.4 BANKRUPTCY. No Act of Bankruptcy has occurred with respect to
Transferee.
4.5 AUTHORIZATION AND EXECUTION. This Agreement has been, and each
of the agreements and certificates of Transferee to be delivered to
Transferor at Closing as provided in Section 5.2 will be, duly authorized by
all necessary action on the part of Transferee, has been duly executed and
delivered by Transferee, constitutes the valid and binding agreement of
Transferee and is enforceable against Transferee in accordance with its
terms. All action required pursuant to this Agreement necessary to
effectuate the transactions contemplated herein has been, or will at Closing
be, taken promptly and in good faith by Transferee and its representatives
and agents.
4.6 TRADE NAME. Transferee shall not use the trade name referenced
in Recital B(4) in connection with any other property owned by Transferee or
any affiliate of Transferee.
ARTICLE V
CONDITIONS AND ADDITIONAL COVENANTS
5.1 AS TO TRANSFEREE'S OBLIGATIONS. Transferee's obligations
hereunder are subject to the satisfaction of the following conditions
precedent and the compliance by Transferor with the following covenants:
(a) TRANSFEROR'S DELIVERIES. Transferor shall have delivered to
or for the benefit of Transferee, as the case may be, on or before the
Closing Date, all of the documents and other information required of
Transferor pursuant to this Agreement.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS. All of
Transferor's representations and warranties made in this Agreement shall be
true and correct as of the date hereof and as of the Closing Date as if
then made, there shall have occurred no material adverse change in the
condition or financial results of the operation of the Property since the
date hereof. Transferor shall have performed all of its covenants and
other obligations under this Agreement and Transferor shall have executed
and delivered to Transferee on the Closing Date a certificate dated as of
the Closing Date to the foregoing effect in the form of EXHIBIT O attached
hereto.
(c) TITLE INSURANCE. The Title Company shall have delivered the
Owner's Title Policy, subject only to the Permitted Title Exceptions.
(d) TITLE TO PROPERTY. Transferee shall have determined that
Transferor is the sole owner of good and marketable fee simple title (or
ground lease interest, as applicable) to the Real Property and to the
Tangible Personal Property, free and clear of all liens, encumbrances,
restrictions, conditions and agreements except for Permitted Title
Exceptions. Transferor shall not have taken
18
any action or permitted or suffered any action to be taken by others from
the date hereof and through and including the Closing Date that would
adversely affect the status of title to the Real Property or to the
Tangible Personal Property.
(e) CONDITION OF PROPERTY. The Real Property and the Tangible
Personal Property (including but not limited to the golf course, driving
range, putting greens, mechanical systems, plumbing, electrical wiring,
appliances, fixtures, heating, air conditioning and ventilating equipment,
elevators, boilers, equipment, roofs, structural members and furnaces)
shall be in the same condition at Closing as they are as of the date
hereof, reasonable wear and tear excepted. Prior to Closing, Transferor
shall not have diminished the quality or quantity of maintenance and upkeep
services heretofore provided to the Real Property and the Tangible Personal
Property. Transferor shall not have removed or caused or permitted to be
removed any part or portion of the Real Property or the Tangible Personal
Property unless the same is replaced, prior to Closing, with similar items
of at least equal quality and acceptable to Transferee.
(f) UTILITIES. All of the Utilities shall be installed in and
operating at the Property, and service shall be available for the removal
of garbage and other waste from the Property. Between the date hereof and
the Closing Date, Transferor shall have received no notice of any material
increase or proposed material increase in the rates charged for the
Utilities from the rates in effect as of the date hereof.
(g) LIQUOR LICENSE. Transferee, or Transferee's nominee, shall
have obtained all liquor licenses, alcoholic beverage licenses and other
permits and Authorizations necessary to operate the restaurant, bars, snack
shops and lounges presently located at the Property. To that end,
Transferor and Transferee, or Transferee's nominee, shall have cooperated
with each other, and each shall have executed such transfer forms, license
applications and other documents as may be necessary to effect the
obtaining of the liquor licenses, alcoholic beverage licenses and other
Authorizations required hereby.
(h) PARTNERSHIP AGREEMENT. Transferor shall have delivered to
Transferee a countersigned copy of the Partnership Agreement in a form
prepared by Transferee, which shall be in substantially the form attached
hereto as EXHIBIT J.
(i) GOLF COURSE LEASE. An Affiliate of Transferor shall have
delivered to Transferee a countersigned copy of the Golf Course Lease in a
form prepared by Transferee, which shall be in substantially the form
attached hereto as EXHIBIT E.
(j) APPROVAL BY BOARD OF DIRECTORS. Within twenty-five (25)
days from the date of this Agreement, the Board of Directors of the Company
must approve the transaction contemplated by this Agreement by an
affirmative vote.
19
Each of the conditions and additional covenants contained in this Section are
intended for the benefit of Transferee and may be waived in whole or in part by
Transferee, but only by an instrument in writing signed by Transferee.
5.2 AS TO TRANSFEROR'S OBLIGATIONS. Transferor's obligations
hereunder are subject to the satisfaction of the following conditions precedent
and the compliance by Transferee with the following covenants:
(a) TRANSFEREE'S DELIVERIES. Transferee shall have delivered to
or for the benefit of Transferor, on or before the Closing Date, all of the
documents and payments required of Transferee pursuant to this Agreement.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS. All of
Transferee's representations and warranties made in this Agreement shall be
true and correct as of the date hereof and as of the Closing Date as if
then made and Transferee shall have performed all of its covenants and
other obligations under this Agreement.
(c) COUNTERSIGNED COPIES OF PARTNERSHIP AGREEMENT AND GOLF
COURSE LEASE. Transferee shall have delivered to Transferor countersigned
copies of the Partnership Agreement and Golf Course Lease.
(d) APPROVAL BY LIMITED PARTNERS. Within twenty-five (25) days
from the date of this Agreement, the limited partners of Transferor must
approve the transaction contemplated by this Agreement by an affirmative
vote.
Each of the conditions and additional covenants contained in this Section are
intended for the benefit of Transferor and may be waived in whole or in part, by
Transferor, but only by an instrument in writing signed by Transferor.
ARTICLE VI
CLOSING
6.1 CLOSING. Closing shall be held at 9:00 a.m., Eastern time, at the
offices of the Company (or counsel to the Company) on the date that is ten (10)
days after the expiration of the Due Diligence Period; provided, however, that
such ten (10) day period may be extended for an additional twenty (20) days by
Transferee, at its sole discretion, by providing written notice to Transferor
prior to the expiration of such ten (10) day period. If the Closing Date falls
on a Saturday, Sunday or other legal holiday, the Closing shall take place on
the first following business day thereafter. Possession of the Property shall be
delivered to Transferee at Closing, subject only to Permitted Title Exceptions.
20
6.2 TRANSFEROR'S DELIVERIES. At Closing, Transferor shall deliver to
Transferee all of the following instruments, each of which shall have been duly
executed and, where applicable, acknowledged and/or sworn on behalf of
Transferor and shall be dated as of the Closing Date:
(a) The certificate required by Section 5.1(b).
(b) The Deed.
(c) The Xxxx of Sale - Personal Property.
(d) The Partnership Agreement.
(e) The Golf Course Lease.
(f) Evidence of title acceptable to Transferee for any vehicle
owned by Transferor and used in connection with the Property.
(g) Such agreements, affidavits or other documents as may be
required by the Title Company to issue the Owner's Title Policy including
those endorsements requested by Transferee, and to eliminate the standard
exceptions as exceptions thereto, so that the Owner's Title Policy will be
subject only to the Permitted Title Exceptions, including, without
limitation, an appropriate mechanics' and construction lien, possession and
gap affidavit.
(h) The FIRPTA Certificate.
(i) To the extent available, true, correct and complete copies
of all warranties, if any, of manufacturers, suppliers and installers
possessed by Transferor and relating to the Property, or any part thereof.
(j) Certified copies of Transferor's Organizational Documents.
(k) Appropriate resolutions of the board of directors or
partners, as the case may be, of Transferor, certified by the secretary or
an assistant secretary of Transferor or a general partner, as the case may
be, together with all other necessary approvals and consents of Transferor,
authorizing (i) the execution on behalf of Transferor of this Agreement and
the documents to be executed and delivered by Transferor prior to, at or
otherwise in connection with Closing, and (ii) the performance by
Transferor of its obligations hereunder and under such documents, or
appropriate resolutions of the partners of Transferor, as the case may be.
(l) A valid, final and unconditional certificate of occupancy
for the Real Property and Improvements, issued by the appropriate
Governmental Body
21
allowing for the use of the Real Property as a golf course and permitting
the continued operation of the improvements as presently operated.
(m) Such proof as Transferee may reasonably require with respect
to Transferor's compliance (or indemnity with respect to compliance) with
the bulk sales laws or similar statutes.
(n) Copy of each and every existing insurance policy covering
the Property and certificates evidencing such coverage.
(o) To the extent available, a set or copies of the plans and
specifications for the Improvements.
(p) A written instrument executed by Transferor, conveying and
transferring to Transferee all of Transferor's right, title and interest in
any telephone numbers, fax numbers or internet or electronic mail addresses
(if applicable) relating solely to the Property, and, if Transferor
maintains a post office box solely with respect to the Property, conveying
to Transferee all of its interest in and to such post office box and the
number associated therewith, so as to assure a continuity in operation and
communication.
(q) All current real estate and personal property tax bills in
Transferor's possession or under its control.
(r) All surveys and plot plans of the Real Property in
possession of or in the control of Transferor.
(s) A complete list of all scheduled tournaments, functions and
the like, in reasonable detail.
(t) A list of Transferor's outstanding accounts receivable as of
midnight on the date prior to the Closing, specifying the name of each
account and the amount due Transferor.
(u) A pay off statement prepared by any holder of Mortgage
Indebtedness setting forth the amount, including accrued interest and
prepayment penalties, to pay off the Mortgage Indebtedness.
(v) Written notice executed by Transferor notifying all
interested parties, including all tenants under any leases of the Property,
that the Property has been conveyed to Transferee and directing that all
payments, inquiries and the like be forwarded to Transferee at the address
to be provided by Transferee.
(w) Any other document or instrument reasonably requested by
Transferee with respect to the Property.
22
6.3 TRANSFEREE'S DELIVERIES. At Closing, Transferee shall pay or
deliver to Transferor the following:
(a) The cash portion of the Purchase Price by federal funds wire
to an account designated by Transferor.
(b) The non-cash portion of the Purchase Price payable in
Owner's Shares issued to such holders and in such denominations to such
holders as specified by Transferor.
(c) Any other document or instrument reasonably requested by
Transferor relating to the transaction contemplated hereby.
6.4 MUTUAL DELIVERIES. At Closing, Transferee and Transferor shall
mutually execute and deliver each to the other:
(a) A closing statement for Transferor and a closing statement
for Transferee (collectively, the "Closing Statements") reflecting the
Purchase Price and the adjustments and prorations required hereunder and
the allocation of income and expenses required hereby.
(b) Such other documents, instruments and undertakings as may be
required by the liquor authorities of the State or of any county or
municipality or Governmental Body having jurisdiction with respect to the
transfer or issue of any liquor licenses or alcoholic beverage licenses or
permits for the Property, to the extent not theretofore executed and
delivered.
(c) The Golf Course Lease.
(d) The Partnership Agreement.
(e) Such other and further documents, papers and instruments as
may be reasonably required by the parties hereto or their respective
counsel.
6.5 CLOSING COSTS. Except as is otherwise provided in this Agreement,
each party hereto shall pay its own legal fees and expenses, and Transferor
shall pay for the cost of any audit required by Transferee with respect to the
Property. All filing fees for the Deed and the real estate transfer, recording
or other similar taxes due with respect to the transfer of title and all charges
for title insurance premiums shall be paid by Transferor. Transferor shall pay
for preparation of the documents to be delivered by Transferor hereunder, and
for the releases of any deeds of trust, mortgages and other financing
encumbering the Property and for any costs associated with any corrective
instruments, and for the cost of any due diligence reports and surveys prepared
by or for Transferee with respect to the Property. Transferor shall receive a
cash payment at closing to pay for such closing costs as provided in Section
2.3(c).
23
6.6 INCOME AND EXPENSE ALLOCATIONS. All income and expenses with
respect to the Property, and applicable to the period of time before and after
Closing, determined in accordance with generally accepted accounting principles
consistently applied, shall be allocated between Transferor and Transferee (or,
at Transferee's election, between Transferor and the lessee under the Golf
Course Lease to the extent such income or expenses will be payable by or
attributable to such lessee). Transferor shall be entitled to all income and
shall be responsible for all expenses for the period of time up to but not
including the Closing Date, and Transferee shall be entitled to all income and
shall be responsible for all expenses for the period of time from, after and
including the Closing Date. Such adjustments shall be shown on the Closing
Statements (with such supporting documentation as the parties hereto may require
being attached as exhibits to the Closing Statements) and shall increase or
decrease (as the case may be) the Purchase Price payable by Transferee. Without
limiting the generality of the foregoing, the following items of income and
expense shall be prorated at Closing:
(a) Current and prepaid rents or fees, including, without
limitation, prepaid Golf Club membership fees, function receipts and other
reservation receipts.
(b) Real estate and personal property taxes.
(c) Utility charges (including but not limited to charges for
water, sewer and electricity).
(d) Value of fuel stored on the Property at the price paid for
such fuel by Transferor, including any taxes.
(e) Municipal improvement liens where the work has physically
commenced (certified liens) shall be paid by Transferor at Closing.
Municipal improvement liens which have been authorized, but where the work
has not commenced (pending liens) shall be assumed by Transferee.
(f) License and permit fees, where transferable.
(g) All other income and expenses of the Property, including,
but not being limited to such things as restaurant and snack bar income and
expenses and the like.
(h) Such other items as are usually and customarily prorated
between Transferees and Transferors of golf course properties in the area
in which the Property is located shall be prorated as of the Closing Date.
6.7 SALES TAXES. Transferor shall be required to pay all sales taxes
and like impositions arising from the ownership and operation of the Property
currently through the Closing Date.
24
6.8 POST-CLOSING ADJUSTMENTS.
(a) Transferee shall not be obligated to collect any accounts
receivable or revenues accrued prior to the Closing Date for Transferor,
but if Transferee collects same, such amounts will be promptly remitted to
Transferor in the form received. Transferee shall receive a credit at
Closing for the amount of any security deposits held by Transferor under
any lease of any portion of the Property that is being assigned to
Transferee in accordance herewith.
(b) If accurate allocations and prorations cannot be made at
Closing because current bills are not obtainable (as, for example, in the
case of utility bills and/or real estate or personal property taxes), the
parties shall allocate such income or expenses at Closing on the best
available information, subject to adjustment outside of escrow upon receipt
of the final xxxx or other evidence of the applicable income or expense.
Any income received or expense incurred by Transferor or Transferee with
respect to the Property after the Closing Date shall be promptly allocated
in the manner described herein and the parties shall promptly pay or
reimburse any amount due. Transferor shall pay at Closing all accrued
special assessments and taxes applicable to the Property.
ARTICLE VII
GENERAL PROVISIONS
7.1 CONDEMNATION. In the event of any actual or threatened taking,
pursuant to the power of eminent domain, of all or any portion of the Real
Property, or any proposed sale in lieu thereof, Transferor shall give written
notice thereof to Transferee promptly after Transferor learns or receives notice
thereof. If all or any part of the Real Property is, or is to be, so condemned
or sold, Transferee shall have the right to terminate this Agreement pursuant to
Section 8.3. If Transferee elects not to terminate this Agreement, all
proceeds, awards and other payments arising out of such condemnation or sale
(actual or threatened) shall be paid or assigned, as applicable, to Transferee
at Closing. Transferor will not settle or compromise any such proceeding
without Transferee's prior written consent.
7.2 RISK OF LOSS. The risk of any loss or damage to the Property prior
to the Closing Date shall remain upon Transferor. If any such loss or damage
occurs prior to Closing, Transferee shall have the right to terminate this
Agreement pursuant to Section 8.3. If Transferee elects not to terminate this
Agreement, all insurance proceeds and rights to proceeds arising out of such
loss or damage shall be paid or assigned, as applicable, to Transferee at
Closing.
7.3 REAL ESTATE BROKER. Except for a broker or finder who may have
been engaged by Transferor and for whom Transferor accepts sole financial
responsibility, and except for any broker or finder who may have been engaged by
Transferee and for whom Transferee accepts sole financial responsibility, there
is no real estate broker involved in this transaction. Transferee warrants and
represents to
25
Transferor that Transferee has not dealt with any other real estate broker in
connection with this transaction, nor has Transferee been introduced to the
Property or to Transferor by any other real estate broker, and Transferee
shall indemnify Transferor and save and hold Transferor harmless from and
against any claims, suits, demands or liabilities of any kind or nature
whatsoever arising on account of the claim of any person, firm or corporation
to a real estate brokerage commission or a finder's fee as a result of having
dealt with Transferee, or as a result of having introduced Transferee to
Transferor or to the Property. In like manner, Transferor warrants and
represents to Transferee that Transferor has not dealt with any real estate
broker in connection with this transaction, nor has Transferor been introduced
to Transferee by any real estate broker, and Transferor shall indemnify
Transferee and save and hold Transferee harmless from and against any claims,
suits, demands or liabilities of any kind or nature whatsoever arising on
account of the claim of any person, firm or corporation to a real estate
brokerage commission or a finder's fee as a result of having dealt with
Transferor in connection with this transaction. Transferee acknowledges that
Xxxxx X. Xxxx, an officer of the Transferee, is a licensed California real
estate broker but is not acting as a broker in relation to this Agreement.
7.4 CONFIDENTIALITY. Except as hereinafter provided, from and after
the execution of this Agreement, Transferee and Transferor shall keep the terms,
conditions and provisions of this Agreement confidential and neither shall make
any public announcements hereof unless the other first approves of same in
writing, nor shall either disclose the terms, conditions and provisions hereof,
except to their respective attorneys, accountants, engineers, surveyors,
financiers and bankers. Notwithstanding the foregoing, it is acknowledged that
the Company is a public company and will make a public announcement concerning
this transaction and that the Company anticipates that it will seek to sell
shares of its common stock and other securities (collectively, the "Securities")
to the general public pursuant to a public offering and that in connection
therewith, Transferee will have the absolute right to market the Securities and
prepare and file all necessary or required registration statements and other
papers, documents and instruments necessary or required in Transferee's judgment
and that of its attorneys and underwriters to file a registration statement with
respect to the Securities with the SEC and/or similar state authorities and to
cause same to become effective and to disclose therein and thus to its
underwriters, to the SEC and/or to similar state authorities and to the public
all of the terms, conditions and provisions of this Agreement. The obligations
of this Section 7.4 shall survive any termination of this Agreement.
7.5 LIQUOR LICENSES. Transferor shall transfer or cause to be
transferred to Transferee or, at Transferee's discretion, Transferee's nominee
(which may include the lessee under the Golf Course Lease), all liquor licenses
and alcoholic beverage licenses, if any, necessary to operate the restaurant,
bars, snack bars and lounges presently located within the Property, if any. To
that end, Transferor and Transferee, or Transferee's nominee, shall cooperate
each with the other, and each shall execute such transfer forms, license
applications and other documents as may be necessary to effect such transfer.
If permitted under the laws of the jurisdiction in which the Property is
located, the parties shall execute and file all necessary transfer forms,
applications and
26
papers with the appropriate liquor and alcoholic beverage authorities prior to
Closing, to the end that the transfer shall take effect, if possible, on the
Closing Date, simultaneously with Closing. If not so permitted, then the
parties agree each with the other that they will promptly execute all transfer
forms, applications and other documents required by the liquor authorities in
order to effect such transfer at the earliest date in time possible consistent
with the laws of the State in order that all liquor licenses may be
transferred from Transferor to Transferee, or Transferee's nominee, at the
earliest possible time. If under the laws of the State such licenses cannot
be transferred until after the Closing of the transaction contemplated hereby,
then Transferor covenants and agrees that Transferor will cooperate with
Transferee, or Transferee's nominee, in keeping open the bars and liquor
facilities of the Property between the Closing Date and the time when such
liquor license transfers actually become effective, by exercising management
and supervision of such facilities until such time under Transferor's
licenses, provided, however, that Transferee shall indemnify and hold
Transferor harmless from any liability, damages or claims encountered in
connection with such operations during said period of time, except for
Transferor's gross negligence or willful misconduct.
ARTICLE VIII
LIABILITY OF TRANSFEREE; INDEMNIFICATION BY TRANSFEROR;
TERMINATION RIGHTS
8.1 LIABILITY OF TRANSFEREE. Except for any obligation expressly
assumed or agreed to be assumed by Transferee hereunder, Transferee does not
assume any obligation of Transferor or any liability for claims arising out of
any occurrence prior to Closing.
8.2 INDEMNIFICATION BY TRANSFEROR. Transferor hereby indemnifies and
holds Transferee harmless from and against any and all claims, costs, penalties,
damages, losses, liabilities and expenses (including reasonable attorneys' fees)
that may at any time be incurred by Transferee, whether before or after Closing,
as a result of any breach by Transferor of any of its representations,
warranties, covenants or obligations set forth herein or in any other document
delivered by Transferor pursuant hereto, for a period of one (1) year following
the Closing. The provisions of this section shall survive termination of this
Agreement by Transferee or Transferor.
8.3 TERMINATION BY TRANSFEREE. If any condition set forth herein for
the benefit of Transferee cannot or will not be satisfied prior to Closing, or
upon the occurrence of any other event that would entitle Transferee to
terminate this Agreement and its obligations hereunder, and Transferor fails to
cure any such matter within ten (10) business days after notice thereof from
Transferee, Transferee, at its option, may elect either (a) to terminate this
Agreement and all other rights and obligations of Transferor and Transferee
hereunder shall terminate immediately, or (b) to waive its right to terminate
(but without waiving any breach or default on the part of Transferor) and,
instead, to proceed to Closing. If Transferee terminates this Agreement as a
consequence of a misrepresentation or breach of a warranty or covenant by
Transferor,
27
or a failure by Transferor to perform its obligations hereunder, then
Transferee shall retain all remedies accruing as a result thereof, including,
without limitation, specific performance.
8.4 TERMINATION BY TRANSFEROR. If any condition set forth herein for
the benefit of Transferor (other than a default by Transferee) cannot or will
not be satisfied prior to Closing, and Transferee fails to cure any such matter
within ten (10) business days after notice thereof from Transferor, Transferor
may, at its option, elect either (a) to terminate this Agreement, in which event
the rights and obligations of Transferor and Transferee hereunder shall
terminate immediately, or (b) to waive its right to terminate, and instead, to
proceed to Closing. If, prior to Closing, Transferee defaults in performing any
of its obligations under this Agreement (including its obligation to purchase
the Property), and Transferee fails to cure any such default within ten (10)
business days after notice thereof from Transferor, then Transferor's sole
remedy for such default shall be to terminate this Agreement and Transferor
waives any claims for damages, actual, consequential or otherwise, that it may
possess against Transferee.
8.5 COSTS AND ATTORNEYS' FEES. In the event of any litigation or
dispute between the parties arising out of or in any way connected with this
Agreement, resulting in any litigation, arbitration or other form of dispute
resolution, then the prevailing party in such litigation shall be entitled to
recover its costs of prosecuting and/or defending same, including, without
limitation, reasonable attorneys' fees at trial and all appellate levels.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 COMPLETENESS; MODIFICATION. This Agreement constitutes the entire
agreement between the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior discussions, understandings,
agreements and negotiations between the parties hereto. This Agreement may be
modified only by a written instrument duly executed by the parties hereto.
9.2 ASSIGNMENTS. Transferee may assign its rights hereunder to an
affiliate of Transferee without the consent of Transferor. Transferee may not
otherwise assign its interest herein without the prior written consent of
Transferor. Transferor may not assign any of its rights pursuant to this
Agreement without the prior written consent of Transferee, which may be withheld
in Transferee's sole and absolute discretion.
9.3 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns.
9.4 DAYS. If any action is required to be performed, or if any notice,
consent or other communication is given, on a day that is a Saturday or Sunday
or a legal holiday in the jurisdiction in which the action is required to be
performed or in which is located the intended recipient of such notice, consent
or other communication,
28
such performance shall be deemed to be required, and such notice, consent or
other communication shall be deemed to be given, on the first business day
following such Saturday, Sunday or legal holiday. Unless otherwise specified
herein, all references herein to a "day" or "days" shall refer to calendar
days and not business days.
9.5 GOVERNING LAW. This Agreement and all documents referred to herein
shall be governed by and construed and interpreted in accordance with the laws
of the State.
9.6 COUNTERPARTS. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required. It shall not be necessary
that the signature on behalf of both parties hereto appear on each counterpart
hereof. All counterparts hereof shall collectively constitute a single
agreement.
9.7 SEVERABILITY. If any term, covenant or condition of this
Agreement, or the application thereof to any person or circumstance, shall to
any extent be invalid or unenforceable, the remainder of this Agreement, or the
application of such term, covenant or condition to other persons or
circumstances, shall not be affected thereby, and each term, covenant or
condition of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
9.8 COSTS. Regardless of whether Closing occurs hereunder, and except
as otherwise expressly provided herein, each party hereto shall be responsible
for its own costs in connection with this Agreement and the transactions
contemplated hereby, including without limitation, fees of attorneys, engineers
and accountants.
9.9 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered by hand, transmitted by
facsimile transmission, sent prepaid by Federal Express (or a comparable
overnight delivery service) or sent by the United States mail, certified,
postage prepaid, return receipt requested, at the addresses and with such copies
as on the Summary Sheet or to such other address as the intended recipient may
have specified in a notice to the other party. Any party hereto may change its
address or designate different or other persons or entities to receive copies by
notifying the other party and Escrow Agent in a manner described in this
Section. Any notice, request, demand or other communication delivered or sent
in the manner aforesaid shall be deemed given or made (as the case may be) when
actually delivered to the intended recipient.
9.10 INCORPORATION BY REFERENCE. All of the exhibits attached hereto
are by this reference incorporated herein and made a part hereof.
9.11 SURVIVAL. Except as expressly provided in Section 3, all of the
representations, warranties, covenants and agreements of Transferor and
Transferee made in, or pursuant to, this Agreement shall survive Closing and
shall not merge into the Deed or any other document or instrument executed and
delivered in connection herewith.
29
9.12 FURTHER ASSURANCES. Transferor and Transferee each covenant and
agree to sign, execute and deliver, or cause to be signed, executed and
delivered, and to do or make, or cause to be done or made, upon the written
request of the other party, any and all agreements, instruments, papers, deeds,
acts or things, supplemental, confirmatory or otherwise, as may be reasonably
required by either party hereto for the purpose of or in connection with
consummating the transactions described herein.
9.13 NO PARTNERSHIP. This Agreement does not and shall not be construed
to create a partnership, joint venture or any other relationship between the
parties hereto except the relationship of Transferor and Transferee specifically
established hereby.
9.14 CONFIDENTIALITY. Any confidential information delivered by
Transferor to Transferee hereunder shall be used solely for the purpose of
acquiring the Property and Transferee will keep such information confidential;
provided Transferee shall have the right to provide such information to its
consultants and advisors and to disclose such information as Transferee
determines is necessary or appropriate in connection with filing any public
offering of Securities. If Transferee does not acquire the Property, it shall
deliver to Transferor copies of all proprietary information delivered to
Transferee by Transferor. Transferor agrees to keep confidential the terms and
conditions of this Agreement; provided, Transferor shall have the right to
provide such information to its consultants and advisors.
30
IN WITNESS WHEREOF, Transferor and Transferee have hereunder affixed their
signatures to this Contribution and Leaseback Agreement, all as of the 18th day
of September 1997.
"TRANSFEREE"
GOLF TRUST OF AMERICA, L.P.,
A DELAWARE LIMITED PARTNERSHIP
By: GTA GP, Inc. a Maryland corporation
Its: General Partner
By: /s/ W. Xxxxxxx Xxxxx, XX
----------------------------------
W. Xxxxxxx Xxxxx, XX
Its: CEO AND PRESIDENT
---------------------------------
"TRANSFEROR"
EAGLE WATCH GOLF CLUB LIMITED PARTNERSHIP, AN
ILLINOIS LIMITED PARTNERSHIP
By: The Crescent Company,
its General Partner
By: /s/ E. Xxxx Xxxxxxx
----------------------------------
E. Xxxx Xxxxxxx
PRESIDENT
----------------------------------
31
-------------------------------------------------------------------------------
EAGLE WATCH GOLF CLUB
Woodstock
Cherokee County
Georgia
L E A S E
GOLF TRUST OF AMERICA, L.P.
LANDLORD
AND
E.W.G.C., LLC
TENANT
DATED AS OF SEPTEMBER 26, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE 1 LEASED PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 DEFINITIONS, RULES OF CONSTRUCTION . . . . . . . . . . . . . . . 2
2.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Rules of Construction. . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 3 TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.1 Initial Term . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.2 Extension Options. . . . . . . . . . . . . . . . . . . . . . . . 13
3.3 Right of First Offer to Lease. . . . . . . . . . . . . . . . . . 14
ARTICLE 4 RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.1 Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.2 Increase in Initial Base Rent. . . . . . . . . . . . . . . . . . 15
4.3 Percentage Rent. . . . . . . . . . . . . . . . . . . . . . . . . 15
4.4 Annual Reconciliation of Percentage Rent . . . . . . . . . . . . 16
4.5 Increase in Base Rent Following Conversion Date. . . . . . . . . 16
4.6 Record-keeping . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.7 Additional Charges . . . . . . . . . . . . . . . . . . . . . . . 16
4.8 Late Payment of Rent . . . . . . . . . . . . . . . . . . . . . . 17
4.9 Net Lease. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.10 Allocation of Revenues . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 5 SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . 18
5.1 Pledge of Owner's Shares . . . . . . . . . . . . . . . . . . . . 18
5.2 Obligation to Withhold Distributions . . . . . . . . . . . . . . 18
5.3 Cross-Collateral . . . . . . . . . . . . . . . . . . . . . . . . 18
5.4 Landlord's Lien. . . . . . . . . . . . . . . . . . . . . . . . . 18
5.5 Termination Payment. . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 6 IMPOSITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.1 Payment of Impositions . . . . . . . . . . . . . . . . . . . . . 19
6.2 Information and Reporting. . . . . . . . . . . . . . . . . . . . 19
6.3 Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.4 Refunds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.5 Utility Charges. . . . . . . . . . . . . . . . . . . . . . . . . 20
6.6 Assessment Districts . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 7 TENANT WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.1 No Termination, Abatement, Etc.. . . . . . . . . . . . . . . . . 20
7.2 Condition of the Property. . . . . . . . . . . . . . . . . . . . 21
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ARTICLE 8 OWNERSHIP OF TANGIBLE PERSONAL PROPERTY. . . . . . . . . . . . . 22
8.1 Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.2 Tenant's Personal Property . . . . . . . . . . . . . . . . . . . 22
8.3 Tenant's Obligations . . . . . . . . . . . . . . . . . . . . . . 23
8.4 Landlord's Waivers . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 9 USE OF PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . 23
9.1 Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.2 Specific Prohibited Uses . . . . . . . . . . . . . . . . . . . . 24
9.3 Membership Sales . . . . . . . . . . . . . . . . . . . . . . . . 24
9.4 Landlord to Grant Easements, Etc.. . . . . . . . . . . . . . . . 24
9.5 Tenant's Additional Covenants. . . . . . . . . . . . . . . . . . 25
9.6 Valuation of Remainder Interest in Lease . . . . . . . . . . . . 25
ARTICLE 10 HAZARDOUS MATERIALS. . . . . . . . . . . . . . . . . . . . . . . 25
10.1 Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.2 Remediation. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.3 Violations; Orders . . . . . . . . . . . . . . . . . . . . . . . 26
10.4 Permits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.5 Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.6 Remediation. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.7 Tenant's Indemnification of Landlord . . . . . . . . . . . . . . 26
10.8 Survival of Indemnification Obligations. . . . . . . . . . . . . 27
10.9 Environmental Violations at Expiration or Termination of
Lease. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 11 MAINTENANCE AND REPAIR . . . . . . . . . . . . . . . . . . . . . 28
11.1 Tenant's Obligations . . . . . . . . . . . . . . . . . . . . . . 28
11.2 Waiver of Statutory Obligations. . . . . . . . . . . . . . . . . 28
11.3 Mechanic's Liens . . . . . . . . . . . . . . . . . . . . . . . . 29
11.4 Surrender of Property. . . . . . . . . . . . . . . . . . . . . . 29
11.5 Bunker Repairs . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 12 TENANT IMPROVEMENTS; SUBMITTAL OF BUDGETS; FINANCIAL
STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.1 Tenant's Right to Construct. . . . . . . . . . . . . . . . . . . 29
12.2 Scope of Right . . . . . . . . . . . . . . . . . . . . . . . . . 30
12.3 Cooperation of Landlord. . . . . . . . . . . . . . . . . . . . . 30
12.4 Capital Replacement Fund . . . . . . . . . . . . . . . . . . . . 31
12.5 Rights in Tenant Improvements. . . . . . . . . . . . . . . . . . 31
12.6 Landlord's Right to Audit Calculation of Gross Golf Revenue. . . 32
12.7 Annual Budget. . . . . . . . . . . . . . . . . . . . . . . . . . 32
12.8 Financial Statements . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 13 LIENS, ENCROACHMENTS AND OTHER TITLE MATTERS . . . . . . . . . . 35
13.1 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
13.2 Encroachments and Other Title Matters. . . . . . . . . . . . . . 35
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ARTICLE 14 PERMITTED CONTESTS . . . . . . . . . . . . . . . . . . . . . . . 36
14.1 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . 36
14.2 Indemnification of Landlord. . . . . . . . . . . . . . . . . . . 37
ARTICLE 15 INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
15.1 General Insurance Requirements . . . . . . . . . . . . . . . . . 38
15.2 Other Insurance. . . . . . . . . . . . . . . . . . . . . . . . . 39
15.3 Replacement Cost . . . . . . . . . . . . . . . . . . . . . . . . 39
15.4 Waiver of Subrogation. . . . . . . . . . . . . . . . . . . . . . 39
15.5 Form Satisfactory, Etc.. . . . . . . . . . . . . . . . . . . . . 39
15.6 Change in Limits . . . . . . . . . . . . . . . . . . . . . . . . 40
15.7 Blanket Policy . . . . . . . . . . . . . . . . . . . . . . . . . 40
15.8 Insurance Proceeds . . . . . . . . . . . . . . . . . . . . . . . 41
15.9 Disbursement of Proceeds . . . . . . . . . . . . . . . . . . . . 41
15.10 Excess Proceeds, Deficiency of Proceeds. . . . . . . . . . . . . 42
15.11 Reconstruction Covered by Insurance. . . . . . . . . . . . . . . 42
15.12 Reconstruction Not Covered by Insurance. . . . . . . . . . . . . 43
15.13 No Abatement of Rent . . . . . . . . . . . . . . . . . . . . . . 43
15.14 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
15.15 Damage Near End of Term. . . . . . . . . . . . . . . . . . . . . 43
ARTICLE 16 CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . 44
16.1 Total Taking . . . . . . . . . . . . . . . . . . . . . . . . . . 44
16.2 Partial Taking . . . . . . . . . . . . . . . . . . . . . . . . . 44
16.3 Restoration. . . . . . . . . . . . . . . . . . . . . . . . . . . 44
16.4 Award-Distribution . . . . . . . . . . . . . . . . . . . . . . . 44
16.5 Temporary Taking . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE 17 EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . 45
17.1 Events of Default. . . . . . . . . . . . . . . . . . . . . . . . 45
17.2 Payment of Costs . . . . . . . . . . . . . . . . . . . . . . . . 47
17.3 Certain Remedies . . . . . . . . . . . . . . . . . . . . . . . . 47
17.4 Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
17.5 Additional Remedies. . . . . . . . . . . . . . . . . . . . . . . 48
17.6 Appointment of Receiver. . . . . . . . . . . . . . . . . . . . . 48
17.7 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
17.8 Application of Funds . . . . . . . . . . . . . . . . . . . . . . 48
17.9 Impounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE 18 LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. . . . . . . . . . . . 49
ARTICLE 19 LEGAL REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 20 HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . 50
iii
ARTICLE 21 RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 22 INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . 51
22.1 Tenant's Indemnification of Landlord . . . . . . . . . . . . . . 51
22.2 Landlord's Indemnification of Tenant . . . . . . . . . . . . . . 51
22.3 Mechanics of Indemnification . . . . . . . . . . . . . . . . . . 52
22.4 Survival of Indemnification Obligations; Available Insurance
Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 23 SUBLETTING AND ASSIGNMENT. . . . . . . . . . . . . . . . . . . . 53
23.1 Prohibition Against Assignment . . . . . . . . . . . . . . . . . 53
23.2 Subleases. . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
23.3 Transfers. . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
23.4 REIT Limitations . . . . . . . . . . . . . . . . . . . . . . . . 55
23.5 Right of First Offer of Landlord to Acquire Leasehold. . . . . . 55
23.6 Bankruptcy Limitations . . . . . . . . . . . . . . . . . . . . . 56
23.7 Management Agreement . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 24 OFFICER'S CERTIFICATES AND OTHER STATEMENTS. . . . . . . . . . . 57
24.1 Officer's Certificates . . . . . . . . . . . . . . . . . . . . . 57
24.2 Environmental Statements . . . . . . . . . . . . . . . . . . . . 58
ARTICLE 25 LANDLORD MORTGAGES . . . . . . . . . . . . . . . . . . . . . . . 58
25.1 Landlord May Grant Liens . . . . . . . . . . . . . . . . . . . . 58
25.2 Tenant's Non-Disturbance Rights. . . . . . . . . . . . . . . . . 59
25.3 Facility Mortgage Protection . . . . . . . . . . . . . . . . . . 59
ARTICLE 26 SALE OF FEE INTEREST . . . . . . . . . . . . . . . . . . . . . . 59
26.1 Right of First Offer to Purchase . . . . . . . . . . . . . . . . 59
26.2 Conveyance by Landlord . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE 27 ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 60
27.1 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . 60
27.2 Arbitration Procedures . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE 28 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . 61
28.1 Landlord's Right to Inspect. . . . . . . . . . . . . . . . . . . 61
28.2 Breach by Landlord . . . . . . . . . . . . . . . . . . . . . . . 61
28.3 Competition Between Landlord and Tenant. . . . . . . . . . . . . 61
28.4 No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
28.5 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . 62
28.6 Acceptance of Surrender. . . . . . . . . . . . . . . . . . . . . 62
28.7 No Merger of Title . . . . . . . . . . . . . . . . . . . . . . . 62
28.8 Quiet Enjoyment. . . . . . . . . . . . . . . . . . . . . . . . . 62
28.9 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
28.10 Survival of Claims . . . . . . . . . . . . . . . . . . . . . . . 63
iv
28.11 Invalidity of Terms or Provisions. . . . . . . . . . . . . . . . 63
28.12 Prohibition Against Usury. . . . . . . . . . . . . . . . . . . . 63
28.13 Amendments to Lease. . . . . . . . . . . . . . . . . . . . . . . 63
28.14 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 63
28.15 Titles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
28.16 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . 63
28.17 Memorandum of Lease. . . . . . . . . . . . . . . . . . . . . . . 63
28.18 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . . . 64
28.19 Non-Recourse as to Landlord. . . . . . . . . . . . . . . . . . . 64
28.20 No Relationship. . . . . . . . . . . . . . . . . . . . . . . . . 64
28.21 Reletting. . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
EXHIBITS
Exhibit A - Legal Description of the Land
Exhibit B - Schedule of Improvements
Exhibit C - Other Leased Properties
Exhibit D - Pledge Agreement
Exhibit E - Adjustments to Calculation of Gross
Golf Revenue for Private Clubs
Exhibit F - Calculation of Gross Golf Revenue for the Base Year on a Quarter by
Quarter Basis
v
EAGLE WATCH GOLF CLUB
Woodstock
Cherokee County
Georgia
LEASE
THIS LEASE (this "Lease"), dated as of September 26, 1997, is
entered into by and between GOLF TRUST OF AMERICA, L.P., a Delaware limited
partnership ("Landlord"), and E.W.G.C., LLC, a Georgia limited liability
company ("Tenant").
THE PARTIES ENTER THIS LEASE on the basis of the following facts,
understandings and intentions:
A. Pursuant to that certain Contribution and Leaseback Agreement
(the "Agreement") dated as of September 18, 1997 by and between Landlord and
EAGLE WATCH GOLF CLUB LIMITED PARTNERSHIP, an Illinois limited partnership
("Transferor"), Transferor transferred to Landlord all of its right, title
and interest in and to the Property (as hereafter defined); and
B. Tenant, an Affiliate of Transferor, desires to lease the
Property from Landlord, and Landlord desires to lease the Property to Tenant,
on the terms set forth herein.
NOW THEREFORE, in consideration of the foregoing and the covenants
and agreements to be performed by Tenant and Landlord hereunder, and of other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ARTICLE 1
LEASED PROPERTY
Upon and subject to the terms and conditions set forth in this
Lease, Landlord leases to Tenant and Tenant leases from Landlord all of
Landlord's rights and interest (to the extent acquired from Transferor) in
and to the following real property, improvements, personal property and
related rights (collectively the "Property"):
(a) the Land;
(b) the Improvements;
(c) all rights, privileges, easements and appurtenances to the Land
and the Improvements, if any, including, without
1
limitation, all of Landlord's right, title and interest, if any, in and to
all mineral and water rights and all easements, rights-of-way and other
appurtenances used or connected with the beneficial use or enjoyment of
the Land and the Improvements;
(d) the Tangible Personal Property; and
(e) the Intangible Personal Property.
ARTICLE 2
DEFINITIONS, RULES OF CONSTRUCTION
2.1 DEFINITIONS. The following terms shall have the indicated
meanings:
"AAA" has the meaning provided in Section 27.1.
"ACTUAL PECUNIARY LOSS" has the meaning provided in Section 23.6.
"ADDITIONAL CHARGES" has the meaning provided in Section 4.7.
"ADJUSTED NET OPERATING INCOME" shall have the meaning set forth in
EXHIBIT K of the Agreement.
"ADVISORY ASSOCIATION" means that certain association of lessees
operating golf courses under a lease with Landlord or any Affiliate of
Landlord.
"AFFILIATE" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with, that Person.
"AGREEMENT" has the meaning provided in Recital A.
"ANNUAL BASE RENT" means the Initial Base Rent, as it may be
adjusted annually as provided in Section 4.2.
"ANNUAL BUDGET" has the meaning provided in Section 12.7.
"AUTHORIZATIONS" means all licenses, permits and approvals required
by any governmental or quasi-governmental agency, body or officer for the
ownership, operation and use of the Property or any part thereof.
"AWARD" means all compensation, sums or anything of value awarded,
paid or received on a total or partial Condemnation.
2
"BANKRUPTCY CODE" has the meaning provided in Section 23.6.
"BASE RENT" means one-twelfth of the Annual Base Rent.
"BASE RENT ESCALATOR" has the meaning provided in Section 4.2.
"BASE YEAR" means the twelve (12) month period beginning on October
1, 1996, and ending on September 30, 1997; provided, however, that the Base
Year shall refer to the calendar year immediately preceding the Conversion
Date if the Base Rent is increased as provided in Section 4.5. A
quarter-by-quarter calculation of Gross Golf Revenue in the Base Year is
attached hereto as EXHIBIT F.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which national banks in the City of New York,
New York, are authorized, or obligated, by law or executive order, to close.
"CAPITAL BUDGET" has the meaning provided in Section 12.7.
"CAPITAL EXPENDITURES" has the meaning provided in Section 12.4.
"CAPITAL REPLACEMENT FUND" means the cumulative amount of the
Capital Replacement Reserve accrued by Landlord, together with interest
thereon as provided in Section 12.4, less amounts withdrawn from the Capital
Replacement Fund as provided in Section 12.4.
"CAPITAL REPLACEMENT RESERVE" means the greater of (i) an amount
equal to 3.22% of each Fiscal Year's Gross Golf Revenue, to be accrued
quarterly by Landlord as part of the Capital Replacement Fund, as provided in
Section 12.4 hereof, based on the Officer's Certificate, or (ii) Fifty
Thousand Dollars ($50,000) per Fiscal Year.
"CHANGE OF CONTROL" means:
(a) the issuance and/or sale by Tenant or the sale by any
stockholder of Tenant of a Controlling interest in Tenant to a Person other
than to a Person that is an Affiliate of Tenant as of the date hereof;
(b) the sale, conveyance or other transfer of all or substantially
all of the assets of Tenant (whether by operation of law or otherwise);
(c) any other transaction, or series of transactions, which
results in the shareholders, partners or members who
3
control Tenant as of the date hereof no longer having Control of Tenant;
or
(d) any transaction pursuant to which Tenant is merged with or
consolidated into another entity (other than an entity owned and Controlled
by an Affiliate of Tenant as of the date hereof), and Tenant is not the
surviving entity.
Notwithstanding the foregoing, a Change of Control shall not be
deemed to have occurred for purposes of this Lease if the shareholders or
partners who Control Tenant as of the date hereof remain in Control of Tenant
through an agreement or equity interest.
"CODE" means the Internal Revenue Code of 1986, as the same may be
amended or supplemented, and the rules and regulations promulgated thereunder.
"COMMENCEMENT DATE" means the date hereof.
"COMPANY" means Golf Trust of America, Inc. and any subsidiaries
thereof, including, without limitation, GTA LP and GTA GP, and, for purposes
of Sections 10.7, 22.1, 22.3 and 22.4, each of their officers, employees,
directors, agents and representatives.
"CONDEMNATION" means (a) the exercise of any governmental power,
whether by legal proceedings or otherwise, by a Condemnor, and (b) a
voluntary sale or transfer by Landlord to any Condemnor, either under threat
of condemnation or while legal proceedings for condemnation are pending.
"CONDEMNOR" means any public or quasi-public authority, or private
corporation or individual, having the power of condemnation.
"CONTINGENT PURCHASE PRICE" shall have the meaning set forth in
EXHIBIT K of the Agreement.
"CONTROL" means (including, with correlative meanings, the terms
"controlling" and "controlled by"), as applied to any Person, the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of
voting securities, by contract or otherwise.
"CONVERSION DATE" means the earlier of (i) the date Transferor
elects to receive additional Owner's Shares in the Partnership as a
Contingent Purchase Price for the contribution of the Property, (ii) the date
on which Transferor elects in writing to waive its right to receive
additional Owner's Shares, or (iii) April 30, 2003.
4
"CPI" means the United States Consumer Price Index, All Urban
Consumers, U.S. City Average, All Items (1982-84 = 100).
"DATE OF TAKING" means the date the Condemnor has the right to
possession of the property being condemned.
"ENVIRONMENTAL LAWS" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et
seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et
seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the
Hazardous Materials Transportation Act, as amended, 49 U.S.C. Section 1801, et
seq.; the Superfund Amendments and Reauthorization Act of 1986, Pub. L. 99-499
and 99-563; the Occupational Safety and Health Act of 1970, as amended, 29
U.S.C. Section 651, et seq.; the Clean Air Act, as amended, 42 U.S.C. Section
7401, et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 201,
et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section
1251, et seq.; and all federal, state and local environmental health and safety
statutes, ordinance, codes, rules, regulations, orders and decrees regulating,
relating to or imposing liability or standards concerning or in connection with
Hazardous Materials.
"EVENT OF DEFAULT" has the meaning provided in Section 17.1.
"EXPIRATION DATE" means December 31, 2007, as such date may be
extended by the Extended Terms.
"EXTENDED TERM" has the meaning provided in Section 3.2.
"FACILITY MORTGAGE" means a mortgage, deed of trust or other security
agreement securing any indebtedness or any other Landlord's Encumbrance placed
on the Property in accordance with the provisions of Article 25.
"FACILITY MORTGAGEE" means the holder or beneficiary of a Facility
Mortgage, if any; provided Landlord has given Tenant notice of the identity and
address of the Person.
"FISCAL QUARTER" means the three-month periods (or applicable portions
thereof) in any Fiscal Year from January 1 through March 31, April 1 through
June 30, July 1 through September 30 and October 1 through December 31.
"FISCAL YEAR" means the twelve (12) month period from January 1 to
December 31 of each year; provided that for purposes of the Lease Term and the
Pledge Agreement, the first Fiscal Year shall be deemed to include the period
from the Commencement Date to December 31, 1997.
"FIXTURES" means all permanently affixed equipment, machinery,
fixtures, and other items of real and/or personal
5
property, including all components thereof, now or hereafter located in, on
or used in connection with and permanently affixed to or incorporated into
the Property, including all furnaces, boilers, heaters, electrical equipment,
heating, plumbing, lighting, ventilating, refrigerating, air and water
pollution control, waste disposal, air-cooling and air-conditioning systems
and apparatus, sprinkler systems and fire and theft protection equipment, all
of which, to the greatest extent permitted by law, are hereby deemed by the
parties hereto to constitute real estate, together with all replacements,
modifications, alterations and additions thereto, but specifically excluding
all items included within the category of Tenant's Personal Property and any
Tenant Improvements.
"FULL REPLACEMENT COST" means the actual replacement cost from time to
time of the improvement being insured, including the increased cost of a
construction endorsement, less exclusions provided in the fire insurance policy.
"GAAP" means generally accepted accounting principles, consistently
applied.
"GROSS GOLF REVENUE" means all revenues accrued (whether by Tenant or
any subtenants, assignees, concessionaires or licensees) from or by reason of
the operation of the golf operations at the Property calculated in accordance
with GAAP (but excluding reasonable reserves for refunds, allowances and bad
debts applicable to such operations), including, without limitation, (i)
revenues from membership initiation fees (to the extent described in EXHIBIT E
attached hereto), (ii) periodic membership dues, (iii) greens fees, (iv) fees to
reserve a tee time, (v) guest fees, (vi) golf cart rentals, (vii) parking lot
fees, (viii) locker rentals, (ix) fees for golf club storage, (x) fees for the
use of swim, tennis or other facilities, (xi) charges for range balls, range
fees or other fees for golf practice facilities, (xii) fees or other charges
paid for golf or tennis lessons (except where retained by or paid to a USTA or
PGA professional in accordance with historical practice at the Property), (xiii)
fees or other charges for fitness centers, (xiv) forfeited deposits with respect
to any membership application, (xv) transfer fees imposed on any member in
connection with the transfer of any membership interest, (xvi) fees or other
charges paid to Tenant by sponsors of golf tournaments at the Property (unless
the terms under which Tenant is paid by such sponsor do not comply with Section
23.4, in which event the gross revenues received from such sponsor for the
tournament shall be excluded from Gross Golf Revenue and further provided that
Tenant shall use commercially reasonable efforts to structure such payment to
comply with Section 23.4), (xvii) advertising or placement fees paid by vendors
in exchange for exclusive use or name rights at the Property, and (xviii) fees
received in connection with any golf package sponsored by any hotel group,
condominium group, golf association, travel agency,
6
tourist or travel association or similar payments; PROVIDED, HOWEVER, that
Gross Golf Revenue shall not include:
(a) Other Revenue;
(b) The amount of any city, county, state or federal sales,
admissions, usage, or excise tax on the item included in Gross Golf
Revenue, which is both added to or incorporated in the selling price and
paid to the taxing authority by Tenant; and
(c) Revenues or proceeds from sales or trade-ins of machinery,
vehicles, trade fixtures or personal property owned by Tenant used in
connection with Tenant's operation of the Property.
"GTA GP" means GTA GP, Inc. and any successor thereto.
"GTA LP" means GTA LP, Inc. and any successor thereto.
"HAZARDOUS MATERIAL" means any substance, material, waste, gas or
particulate matter which is regulated by any local, state or federal
governmental authority, including but not limited to any material or substance
which is (i) defined as a "hazardous waste", "hazardous material", or
"restricted hazardous waste" or words of similar import under any provision of
any Environmental Law; (ii) petroleum or petroleum products; (iii) asbestos;
(iv) polychlorinated biphenyl; (v) radioactive material; (vi) radon gas; (vii)
designated as a "hazardous substance" pursuant to Section 311 of the Clean Water
Act, 33 U.S.C. Section 1251, et seq. (42 U.S.C. Section 1317); (viii) defined as
a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903); or (ix)
defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601,
et seq. (42 U.S.C. Section 9601).
"IMPARTIAL APPRAISER" means the casualty insurance company which is
then carrying the largest amount of casualty insurance carried on the Property.
"IMPOSITIONS" means collectively:
(a) all taxes (including all real and personal property, ad
valorem, sales and use, single business, gross receipts, transaction
privilege, rent or similar taxes);
(b) assessments and levies (including all assessments for public
improvements or benefits, whether or not commenced or completed prior to
the date hereof and whether or not to be completed within the Term);
7
(c) excises;
(d) fees (including license, permit, inspection, authorization and
similar fees); and
(e) all other governmental charges;
in each case whether general or special, ordinary or extraordinary, or foreseen
or unforeseen, of every character in respect of the Property and/or the Rent or
Additional Charges (including all interest and penalties thereon due to any
failure in payment by Tenant), which at any time during or in respect of the
Term hereof may be assessed or imposed on or in respect of or be a lien upon (i)
Landlord or Landlord's interest in the Property; (ii) the Property or any part
thereof or any therefrom or any estate, right, title or interest therein; or
(iii) any operation, use or possession of, or sales from or activity conducted
on or in connection with the Property or the leasing or use of the Property or
any part thereof; PROVIDED, HOWEVER, that Impositions shall not include:
(aa) any taxes based on net income (whether denominated as an
income, franchise, capital stock or other tax) imposed on Landlord or any
other Person other than Tenant;
(bb) any transfer or net revenue tax of Landlord or any other
Person other than Tenant; or
(cc) any tax imposed with respect to any principal or interest on
any indebtedness on the Property.
"IMPOUND CHARGES" has the meaning provided in Section 17.9.
"IMPOUND PAYMENT" has the meaning provided in Section 17.9.
"IMPROVEMENTS" means the golf course, driving range, putting greens,
clubhouse facilities, snack bar, restaurant, pro shop, buildings, structures,
parking lots, improvements, Fixtures and other items of real estate located on
the Land as more particularly described in EXHIBIT B attached hereto.
"INITIAL BASE RENT" means $652,800 per year.
"INITIAL TERM" means the period of time from the Commencement Date
through December 31, 2007.
"INSURANCE REQUIREMENTS" mean all terms of any insurance policy
required by this Lease and all requirements of the issuer of any such policy.
8
"INTANGIBLE PERSONAL PROPERTY" means all intangible personal property
owned by Landlord and used solely in connection with the ownership, operation,
leasing or maintenance of the Real Property or the Tangible Personal Property,
and any and all trademarks and copyrights, guarantees, Authorizations, general
intangibles, business records, plans and specifications, surveys, all licenses,
permits and approvals solely with respect to the construction, ownership,
operation or maintenance of the Property.
"LAND" means the land described in EXHIBIT A attached hereto.
"LANDLORD" means Golf Trust of America, L.P., and any successor or
assignee permitted in accordance with the terms of the Lease.
"LANDLORD'S ENCUMBRANCE" means any lien, encumbrance or title
retention agreement upon the Property, or any portion thereof or interest
therein, whether to secure borrowing or other means of financing or refinancing.
"LEASE" means this Lease, as the same may be amended from time to
time.
"LEASE TERM" means the period from the Commencement Date through and
including the Expiration Date (or the termination date, if earlier terminated
pursuant to the provisions hereof).
"LEGAL REQUIREMENTS" means all federal, state, county, municipal and
other governmental statutes, laws (including the Americans with Disabilities Act
and any Environmental Laws), rules, orders, regulations, ordinances, judgments,
decrees and injunctions affecting either the Property or the construction, use
or alteration thereof, whether now or hereafter enacted and in force, including
any which may (i) require repairs, modifications, or alterations in or to the
Property; (ii) in any way adversely affect the use and enjoyment thereof, and
all permits, licenses and authorizations and regulations relating thereto, and
all covenants, agreements, restrictions and encumbrances contained in any
instruments, either of record or known to Tenant (other than encumbrances
created by Landlord without the consent of Tenant), at any time in force
affecting the Property; or (iii) require the cleanup or other treatment of any
Hazardous Material.
"NET OPERATING INCOME" shall have the meaning set forth in EXHIBIT K
of the Agreement.
"NON-COMPLYING PARTY" has the meaning provided in Section 27.2.
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"OFFICER'S CERTIFICATE" means a certificate of Tenant signed by an
officer authorized to so sign by the board of directors or by-laws, or if Tenant
is a partnership, by an officer authorized to so sign by the general partners.
"OPERATING BUDGET" has the meaning provided in Section 12.7.
"OTHER LEASED PROPERTIES" means the property or properties leased or
hereafter leased to Tenant or an Affiliate of Tenant by Landlord or an Affiliate
of Landlord, other than pursuant to this Lease, which as of the date hereof are
the properties listed on EXHIBIT C attached hereto.
"OTHER REVENUE" means all revenue received (whether by Tenant or any
subtenants, assignees, concessionaires or licensees) from or by reason of the
Property relating to (i) the operation of snack bars, restaurants, bars,
catering functions, and banquet operations, (ii) sale of merchandise and
inventory on the Property, and (iii) photography services.
"OVERDUE RATE" means, on any date, a rate equal to the Prime Rate plus
an additional five percent (5%) per annum, but in no event greater than the
maximum rate then permitted under applicable law.
"OWNER'S SHARES" means limited partnership interests in the
Partnership.
"PARTNERSHIP" means Golf Trust of America, L.P., a Delaware limited
partnership.
"PERCENTAGE RENT" means, for any Fiscal Year during the Lease Term,
thirty-three and one-third percent (33 1/3%) of the positive difference, if any,
between the current year's Gross Golf Revenue and the Gross Golf Revenue for the
Base Year, pro rated for any partial periods.
"PERMITTED ASSIGNEE" means a Person or an Affiliate of a Person
meeting one or more of the following standards:
(a) an existing lessee under a lease with Landlord or any
Affiliate of Landlord who is not then in default under its lease;
(b) any entity affiliated with an entity acquiring from an
Affiliate of Tenant its resort and related operations located at or
adjacent to the Property, and provided Landlord has approved such assignee
in its reasonable discretion, based on, among other things, the proposed
assignee's reputation and experience in owning, operating and managing golf
courses similar in type to the
10
Property and the proposed assignee's net worth and financial resources; and
(c) a list of pre-approved assignees prepared by Landlord from
time to time in consultation with the Advisory Association.
"PERSON" means and includes natural persons, corporations, limited
partnerships, limited liability companies, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts, banks, trusts
companies, land trusts, business trusts, Indian tribes or other organizations,
whether or not legal entities, and governments and agencies and political
subdivisions thereof.
"PLEDGE AGREEMENT" means that certain pledge agreement dated as of the
date of this Lease, by and between Transferor and Landlord, in the form attached
hereto as EXHIBIT D.
"PLEDGED OWNER'S SHARES" means the Owner's Shares pledged pursuant to
the Pledge Agreement.
"PRIMARY INTENDED USE" means the operation of a golf course and other
activities incidental to the operation of a golf course.
"PRIME RATE" means on any date, a rate equal to the annual rate on
such date announced by NationsBank, N.A. or its successor entity, to be its
prime rate or, if the prime rate is discontinued, the base rate for 90-day
unsecured loans to its corporate borrowers of the highest credit standing.
"PROPERTY" means the Real Property, the Tangible Personal Property and
the Intangible Personal Property.
"REAL PROPERTY" means the Land and the Improvements, and all easements
and appurtenances attached thereto.
"RENT" means, collectively, the Base Rent and Percentage Rent.
"STATE" means the State or Commonwealth in which the Property is
located.
"TANGIBLE PERSONAL PROPERTY" means all items of tangible personal
property and fixtures (if any) owned by Landlord and located on or used solely
in connection with the Real Property, including, but not limited to, machinery,
equipment, furniture, furnishings, movable walls or partitions, phone systems,
restaurant equipment, computers or trade fixtures, golf course operation and
maintenance equipment, including mowers, tractors, aerators, sprinklers,
sprinkler and irrigation facilities and equipment, valves or rotors, driving
range equipment, athletic
11
training equipment, office equipment or machines, antiques or other
decorations, furniture, computers or other control systems, and equipment or
machinery of every kind or nature, including all warranties and guaranties
associated therewith, with the exception of golf carts.
"TENANT" means E.W.G.C., LLC, a Georgia limited liability company, and
any successor thereto, or assignee thereof, as permitted by the terms of this
Lease.
"TENANT IMPROVEMENTS" has the meaning provided in Section 12.1.
"TENANT'S PERSONAL PROPERTY" has the meaning provided in Section 8.2.
"TENANT'S RIGHT OF FIRST OFFER TO LEASE" has the meaning provided in
Section 3.3.
"TENANT'S RIGHT OF FIRST OFFER TO PURCHASE" has the meaning provided
in Section 26.1.
"TERM" means, collectively, the Initial Term and any Extended Terms,
as the context may require, unless earlier terminated pursuant to the provisions
hereof.
"TERMINATION PAYMENT" means an amount calculated on the Expiration
Date equal to the positive difference, if any, between one hundred thirteen and
one half percent (113.5%) of the Rent and the Net Operating Income for the prior
Fiscal Year, divided by ten and two tenths percent (10.2%).
"TRANSFEROR" has the meaning provided in Recital A.
"TRUSTEE" has the meaning provided in Section 23.6.
"UNAVOIDABLE DELAYS" means delays due to strikes, lockouts, power
failure, acts of God, governmental restrictions, enemy action, civil commotion,
fire, unavoidable casualty or other causes beyond the control of the party
responsible for performing an obligation hereunder, PROVIDED THAT lack of funds
shall not be deemed a cause beyond the control of either party hereto unless
such lack of funds is caused by the failure of the other party hereto to perform
any obligations of such party under this Lease.
"UNSUITABLE FOR ITS PRIMARY INTENDED USE" means a state of condition
of the Property such that in the good faith judgment of Landlord, reasonably
exercised, the Property cannot be operated on a commercially practicable basis
for its Primary Intended Use.
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2.2 RULES OF CONSTRUCTION. The following rules shall apply to the
construction and interpretation of this Lease:
(a) Singular words shall connote the plural number as well as the
singular and vice versa, and the masculine shall include the feminine and
the neuter.
(b) All references herein to particular articles, sections,
subsections, clauses or exhibits are references to articles, sections,
subsections, clauses or exhibits of this Lease.
(c) The table of contents and headings contained herein are solely
for convenience of reference and shall not constitute a part of this Lease
nor shall they affect its meaning, construction or effect.
(d) "Including" and variants thereof shall be deemed to mean
"including without limitation."
(e) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles then in effect.
(f) Each party hereto and its counsel have reviewed and revised
(or requested revisions of) this Lease and have participated in the
preparation of this Lease, and therefore any usual rules of construction
requiring that ambiguities are to be resolved against a particular party
shall not be applicable in the construction and interpretation of this
Lease or any exhibits hereto.
ARTICLE 3
TERM
3.1 INITIAL TERM. The Initial Term shall commence on the
Commencement Date and shall terminate on December 31, 2007.
3.2 EXTENSION OPTIONS. Landlord grants Tenant the right to extend
the Initial Term of this Lease five (5) consecutive times for a period of five
(5) years each (each such extension, an "Extended Term"). Tenant may exercise
its option for an Extended Term solely by giving written notice at least one
hundred eighty (180) days prior to the termination of the then-current term.
Tenant shall be entitled to exercise these options only if at the time of the
giving of such notice, Tenant is then the lessee of the Property pursuant to
this Lease, and at the time of the commencement of the applicable Term or
Extended Term no Event of Default shall then exist. During the Extended Term,
all of the terms and conditions of this Lease shall continue in full force and
effect, as the same may be amended, supplemented or modified.
13
3.3 RIGHT OF FIRST OFFER TO LEASE. Upon the expiration of the
Lease Term and provided that Tenant has exercised each Extended Term and no
Event of Default then exists beyond any applicable notice and cure period,
Tenant shall have a right of first offer ("Tenant's Right of First Offer to
Lease") to lease the Property upon the same terms and conditions as Landlord, at
its election, intends to offer to lease the Property to a third party. Tenant
shall be entitled to exercise Tenant's Right of First Offer to Lease only if at
the time of the giving of such notice and at the time of the commencement of the
applicable term no Event of Default shall then exist and only if Landlord elects
to lease the Property at the expiration of the Lease Term. Not more than nine
(9) months and not less than three (3) months prior to the expiration of the
Lease Term, Landlord shall, if applicable, give Tenant written notice of its
intent to lease the Property and shall indicate the terms and conditions upon
which Landlord intends to lease the Property. Tenant shall thereafter have a
period of thirty (30) days to elect by unequivocal written notice to Landlord to
lease the Property on the same terms and conditions as Landlord intends to offer
to a third party; provided prior to Tenant's acceptance Landlord shall retain
the right to elect not to lease the Property by giving Tenant written notice
thereof. If Tenant elects not to lease the Property, then Landlord shall be
free to lease the Property to a third party. However, if the Base Rent for such
proposed lease is reduced by five percent (5%) or more as compared to the Base
Rent included in the lease that Tenant rejected, then Landlord shall again offer
Tenant the right to acquire the Property upon the same terms and conditions,
provided that Tenant shall have only fifteen (15) days to accept such offer.
ARTICLE 4
RENT
4.1 RENT. Tenant will pay to Landlord, in lawful money of the
United States of America, Rent during the Initial Term or any Extended Term.
Payments of Base Rent shall be paid monthly, on the first day of each month in
arrears, at Landlord's address set forth in Section 28.9 or at such other place
or to such other Person as Landlord from time to time may designate in writing.
The first monthly installment shall be prorated as to any partial month. If any
payment owing hereunder shall otherwise be due on a day that is not a Business
Day, such payment shall be due on the next succeeding Business Day. No payment
in addition to the payment of Rent shall be required in order to require
Landlord to accrue the Capital Replacement Fund as provided in Section 12.4.
Tenant shall receive a credit against Rent (or be paid directly, at Landlord's
option) for any operating expense credits or operating revenues credited to
Landlord pursuant to the Agreement which are applicable to any period in the
Lease Term (E.G., credit for real property taxes, membership dues, sublease
rents, etc.) and conversely Tenant
14
shall reimburse Landlord for any operating expenses paid for by Landlord
pursuant to the Agreement which are the responsibility of Tenant hereunder.
4.2 INCREASE IN INITIAL BASE RENT. Beginning on January 1, 1999
and on each January 1 thereafter through and including January 1, 2003, the
Annual Base Rent will increase by the lesser of (i) three percent (3%) of the
Annual Base Rent payable for the immediately preceding year, or (ii) two hundred
percent (200%) of the change in CPI from the immediately preceding fiscal year
(the "Base Rent Escalator"). If Landlord provides Tenant with the Bunker Repair
Funds as provided in Section 11.5, Annual Base Rent shall increase by an amount
that is 10.5% of the Bunker Repair Funds. In addition, if the Annual Base Rent
is increased as provided in Section 4.5, then the Base Rent Escalator shall
continue to apply to each of the five (5) years following such increase, with
the increase effective on the anniversary of the increase in Base Rent as
provided in Section 4.5 in lieu of increases on January of each year.
4.3 PERCENTAGE RENT. In addition to Base Rent, Tenant shall pay
Percentage Rent as provided herein. Beginning in the first year of the Initial
Term and continuing for the Initial Term and any Extended Term, Tenant shall
calculate the Gross Golf Revenue for each Fiscal Quarter (or shorter period, if
applicable) within twenty (20) days of the end of such Fiscal Quarter (or
shorter period, if applicable) and submit such calculation in writing to
Landlord by way of an Officer's Certificate. If the Gross Golf Revenue for that
Fiscal Quarter (or shorter period, if applicable) is greater than the Gross Golf
Revenue for the same Fiscal Quarter (or shorter period, if applicable) in the
Base Year (and, following the Fiscal Quarter ending March 31, on a year-to-date
basis), then Tenant shall pay to Landlord the Percentage Rent upon submittal of
the Officer's Certificate. The Percentage Rent payable in any period in any
Fiscal Year shall be adjusted to reflect the Percentage Rent paid on a year-to-
date cumulative basis for the Fiscal Year (pro rated for any partial periods)
and the limits set forth in the next two sentences on a pro rated basis. The
increase in Rent resulting from the payment of Percentage Rent (together with
any increase in Base Rent pursuant to Section 4.2) payable, if any, during each
of the first five (5) full calendar years of the Initial Term shall be limited
to five percent (5%) of the Rent payable for the prior calendar year. Tenant
shall receive a credit against the payment of Percentage Rent in an amount equal
to the increase in the Base Rent over the Initial Base Rent.
4.4 ANNUAL RECONCILIATION OF PERCENTAGE RENT. Within sixty (60)
days after the end of each Fiscal Year, or after the expiration or termination
of this Lease, Tenant shall deliver to Landlord an Officer's Certificate setting
forth (i) the Gross Golf Revenue for the Fiscal Year just ended, and (ii) a
15
comparison of the amount of the Percentage Rent actually paid during such Fiscal
Year versus the amount of Percentage Rent actually owing on the basis of the
annual calculation of the Gross Golf Revenue. If the Percentage Rent for such
Fiscal Year exceeds the sum of the quarterly payments of Percentage Rent
previously paid by Tenant, Tenant shall pay such deficiency to Landlord along
with such Officer's Certificate. If the Percentage Rent for such Fiscal Year is
less than the amount of Percentage Rent previously paid by Tenant, Landlord
shall, at Landlord's option, either (i) remit to Tenant its check in an amount
equal to such difference, or (ii) grant Tenant a credit against the payment of
Rent next coming due. Landlord shall have the right to audit all of Tenant's
business operations at the Property so as to determine the calculation of
Percentage Rent as provided in Section 12.6.
4.5 INCREASE IN BASE RENT FOLLOWING CONVERSION DATE. For the
Fiscal Year in which the Conversion Date occurs, the Annual Base Rent shall be
increased, effective as of the date the additional Owner's Shares are issued to
the Transferor, to an amount equal to the Adjusted Net Operating Income.
4.6 RECORD-KEEPING. Tenant shall utilize an accounting system for
the Property in accordance with its usual and customary practices and in
accordance with GAAP, approved by Landlord, which will accurately record all
Gross Golf Revenue. Tenant shall retain all accounting records for each Fiscal
Year conforming to such accounting system until at least five (5) years after
the expiration of such Fiscal Year.
4.7 ADDITIONAL CHARGES. In addition to the Base Rent and
Percentage Rent, (a) Tenant shall also pay and discharge when due and payable
all other amounts, liabilities, obligations and Impositions which Tenant assumes
or agrees to pay under this Lease, and (b) in the event of any failure on the
part of Tenant to pay any of those items referred to in clause (a) above, Tenant
shall also pay and discharge every fine, penalty, interest and cost which may be
added for non-payment or late payment of such items (the items referred to in
clauses (a) and (b) above being referred to herein collectively as the
"Additional Charges"). Except as otherwise provided in this Lease, all
Additional Charges shall become due and payable at the earlier of (i) thirty
(30) days after either Landlord or the applicable third party delivery of an
invoice to Tenant, or (ii) the date of delinquency with respect to Impositions.
4.8 LATE PAYMENT OF RENT. Tenant hereby acknowledges that late
payment by Tenant to Landlord of Base Rent, Percentage Rent or Additional
Charges will cause Landlord to incur costs not contemplated under the terms of
this Lease, the exact amount of which is presently anticipated to be extremely
difficult to ascertain. Such costs may include processing and accounting
charges and late charges which may be imposed on Landlord by the
16
terms of any mortgage or deed of trust covering the Property and other
expenses of a similar or dissimilar nature. Accordingly, if any installment
of Base Rent, Percentage Rent or Additional Charges (but only as to those
Additional Charges which are payable directly to Landlord) shall not be paid
within ten (10) Business Days after the date such payment is due, Tenant will
pay Landlord on demand, as Additional Charges, a late charge equal to five
percent (5%) of such installment. The parties agree that this late charge
represents a fair and reasonable estimate of the costs that Landlord will
incur by reason of late payment by Tenant and is not a penalty. In addition,
if any installment of Base Rent, Percentage Rent or Additional Charges (but
only as to those Additional Charges which are payable directly to Landlord)
shall not be paid within five (5) Business Days after the due date with
respect to Base Rent or Percentage Rent or delivery of an invoice to Tenant
with respect to the Additional Charge, the amount unpaid shall bear interest,
from such due date to the date of payment thereof, computed at the Overdue
Rate on the amount of such installment, and Tenant will pay such interest to
Landlord as Additional Charges. The acceptance of any late charge or
interest shall not constitute a waiver of, nor excuse or cure, any default
under this Lease, nor prevent Landlord from exercising any other rights and
remedies available to Landlord.
4.9 NET LEASE. This Lease shall be a triple net lease and Rent
shall be payable to Landlord without notice or demand and without set-off,
counterclaim, recoupment, abatement, suspension, determent, deduction or
defense, except as expressly provided herein, so that this Lease shall yield
to Landlord the full amount of the installments of Base Rent, Percentage Rent
and Additional Charges throughout the Term. Without limiting the foregoing,
Tenant shall pay to Landlord on a monthly basis along with Base Rent, as
additional rent, an amount equal to one-twelfth (1/12) of the Capital
Replacement Reserve. Such amount shall be subject to reconciliation at the
end of each Fiscal Quarter.
4.10 ALLOCATION OF REVENUES. In the event that individuals or
groups purchase for a single price items which are both included and excluded
from Gross Golf Revenue (e.g., green fees and dinner), then Tenant agrees
that revenues shall be allocated to Gross Golf Revenue in a reasonable manner
consistent with the historical allocation of such revenues.
ARTICLE 5
SECURITY DEPOSIT
5.1 PLEDGE OF OWNER'S SHARES. On or prior to the Commencement
Date, Tenant shall cause the Pledge Agreement to be executed for the benefit
of Landlord.
5.2 OBLIGATION TO WITHHOLD DISTRIBUTIONS. Notwithstanding the
above provisions, if the Net Operating Income
17
for the Property falls below the coverage ratio set forth in Section 2(a) of
EXHIBIT D-1 to the Pledge Agreement, at any time following the release of any
Pledged Owner's Shares (or security deposit held by Landlord in lieu
thereof), then Tenant shall thereafter retain, and not make cash
distributions (except as may be necessary to pay any applicable taxes) to its
shareholders, partners or members, as applicable, until such time as Tenant
has accumulated six (6) months of Base Rent at the then current level. Cash
distributions may be made at such time as Tenant shall have again satisfied
such coverage ratios for two (2) consecutive Fiscal Years. Tenant shall
provide Landlord with such documentation, including Officer's Certificates
and financial statements, within forty-five (45) days after the end of each
Fiscal Quarter as are necessary to establish Tenant's compliance with the
foregoing requirements.
5.3 CROSS-COLLATERAL. The Pledged Owner's Shares shall also
secure Tenant's or Tenant's Affiliates obligations under each of the leases
for the Other Leased Properties. Notwithstanding the foregoing, the Pledged
Owner's Shares shall not secure any obligations of O.A.G.C., LLC, a Georgia
limited liability company ("Olde Atlanta"), under that certain Lease (the
"Olde Atlanta Lease") dated as of February 11, 1997, by and between Landlord
and Olde Atlanta, nor shall any security for Olde Atlanta's performance under
the Olde Atlanta Lease secure the performance of Tenant under this Lease.
5.4 LANDLORD'S LIEN. To the fullest extent permitted by
applicable law, Landlord is granted a lien and security interest on all of
Tenant's personal property now or hereafter located on the Property, and such
lien and security interest shall remain attached to Tenant's personal
property until payment in full of all Rent and satisfaction of all of
Tenant's obligations hereunder; provided, however, Landlord shall subordinate
its lien and security interest only to that of any third party lender or
seller which finances Tenant's personal property, the terms and conditions of
such subordination to be satisfactory to Landlord in its reasonable
discretion. Tenant shall, upon the request of Landlord, execute such
financing statements or other documents or instruments reasonably requested
by Landlord to perfect the lien and security interests herein granted.
5.5 TERMINATION PAYMENT. On the day following the Expiration
Date (unless the Expiration Date is December 31, 2032), Tenant shall pay to
Landlord the Termination Payment, if any, provided the maximum Termination
Payment shall equal the amounts in the Security Fund (as defined in the
Pledge Agreement) then held by Landlord and shall be payable solely from the
proceeds thereof. For purposes of calculating the Termination Payment, the
shares of Common Stock of GTA shall have a value deemed to equal the closing
share price of common stock of GTA on the Expiration Date.
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ARTICLE 6
IMPOSITIONS
6.1 PAYMENT OF IMPOSITIONS. Subject to Section 6.3 and Section
17.9, Tenant will pay, or cause to be paid, all Impositions before any fine,
penalty, interest or cost may be added for non-payment, such payments to be
made directly to the taxing authorities where feasible. All payments of
Impositions shall be subject to Tenant's right of contest pursuant to the
provisions of Section 6.3 or Article 14. Upon request, Tenant shall promptly
furnish to Landlord copies of official receipts, if available, or other
satisfactory proof evidencing such payments, such as cancelled checks.
6.2 INFORMATION AND REPORTING. Landlord shall give prompt
notice to Tenant of all Impositions payable by Tenant hereunder of which
Landlord at any time has actual knowledge, but Landlord's failure to give any
such notice shall in no way diminish Tenant's obligations hereunder to pay
such Impositions. Landlord and Tenant shall, upon reasonable request of the
other, provide such data as is maintained by the party to whom the request is
made with respect to the Property as may be necessary to prepare any required
returns and reports. In the event any applicable governmental authorities
classify any property covered by this Lease as personal property, Tenant
shall file all personal property tax returns in such jurisdictions where it
must legally so file. Each party, to the extent it possesses the same, will
provide the other party, upon reasonable request, with cost and depreciation
records necessary for filing returns for any property so classified as
personal property.
6.3 PRORATIONS. Impositions imposed in respect of the
tax-fiscal period during which the Lease commences or terminates shall be
adjusted and prorated between Landlord and Tenant, whether or not such
Imposition is imposed before or after such commencement or termination, and
Tenant's obligation to pay its prorated share thereof shall survive such
termination. If any Imposition may, at the option of the taxpayer, lawfully
be paid in installments (whether or not interest shall accrue on the unpaid
balance of such Imposition), Tenant may elect to pay in installments, in
which event Tenant shall pay all installments (and any accrued interest on
the unpaid balance of the Imposition) that are due during the Term hereof
before any fine, penalty, premium, further interest or cost may be added
thereto.
6.4 REFUNDS. If any refund shall be due from any taxing
authority in respect of any Imposition paid by Tenant, the same shall be paid
over to or retained by Tenant if no Event of Default shall have occurred
hereunder and be continuing. Any such funds retained by Landlord due to an
Event of Default shall be applied as provided in Article 17.
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6.5 UTILITY CHARGES. Tenant shall pay or cause to be paid prior
to delinquency charges for all utilities and services, including, without
limitation, electricity, telephone, trash disposal, gas, oil, water, sewer,
communication and all other utilities used in the Property during the Term.
6.6 ASSESSMENT DISTRICTS. Landlord shall not voluntarily
consent to or agree in writing to (i) any special assessment or (ii) the
inclusion of any material portion of the Leased Property into a special
assessment district or other taxing jurisdiction unless Tenant shall have
consented thereto, which consent shall not be unreasonably withheld or unless
Landlord agrees to pay the cost thereof.
ARTICLE 7
TENANT WAIVERS
7.1 NO TERMINATION, ABATEMENT, ETC. Subject to Article 21 and
except as otherwise specifically provided in this Lease, and except for those
causes resulting from the willful misconduct or gross negligence of Landlord
or any person whose claim arose under Landlord, (i) Tenant, to the extent
permitted by law, shall remain bound by this Lease in accordance with its
terms and shall neither take any action without the consent of Landlord to
modify, surrender or terminate the same, nor be entitled to any abatement,
deduction, deferment or reduction of Rent, or set-off against the Rent by
reason of, and (ii) the respective obligations of Landlord and Tenant shall
not be otherwise affected by reason of:
(a) any damage to, or destruction of, any Property or any portion
thereof from whatever cause or any taking of the Property or any portion
thereof;
(b) the lawful or unlawful prohibition of, or restriction upon,
Tenant's use of the Property, or any portion thereof, the interference with
such use by any Person, or by reason of eviction by paramount title;
(c) any claim which Tenant has or might have against Landlord or
by reason of any default or breach of any warranty by Landlord under this
Lease or any other agreement between Landlord and Tenant, or to which
Landlord and Tenant are parties;
(d) any bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding up or other proceedings
affecting Landlord or any assignee or transferee of Landlord; or
(e) for any other cause whether similar or dissimilar to any of
the foregoing other than a discharge of Tenant from any such obligations as
a matter of law.
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Tenant hereby specifically waives all rights, arising from any
occurrence whatsoever, which may now or hereafter be conferred upon it by law
(i) to modify, surrender or terminate this Lease or quit or surrender the
Property or any portion thereof, or (ii) to entitle Tenant to any abatement,
reduction, suspension or deferment of the Rent or other sums payable by
Tenant hereunder, except as otherwise specifically provided in this Lease.
The obligations of Landlord and Tenant hereunder shall be separate and
independent covenants and agreements and the Rent and all other sums payable
by Tenant hereunder shall continue to be payable in all events unless the
obligations to pay the same shall be terminated pursuant to the express
provisions of this Lease or by termination of this Lease other than by reason
of an Event of Default.
7.2 CONDITION OF THE PROPERTY. Tenant acknowledges receipt and
delivery of possession of the Property and that Tenant has examined and
otherwise has knowledge of the condition of the Property prior to the
execution and delivery of this Lease and has found the same to be in good
order and repair and satisfactory for its purposes hereunder. Regardless,
however of any inspection made by Tenant of the Property and whether or not
any patent or latent defect or condition was revealed or discovered thereby,
Tenant is leasing the Property "as is" in its present condition. Tenant
waives and releases any claim or cause of action against Landlord with
respect to the condition of the Property including any defects or adverse
conditions latent or patent, matured or unmatured, known or unknown by Tenant
or Landlord as of the date hereof. TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER
ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT MADE AND WILL
NOT MAKE, NOR SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING
ANY WARRANTY OR REPRESENTATION AS TO (i) ITS FITNESS, DESIGN OR CONDITION FOR
ANY PARTICULAR USE OR PURPOSE, (ii) THE QUALITY OF THE MATERIAL OR
WORKMANSHIP THEREIN, (iii) THE EXISTENCE OF ANY DEFECT, LATENT OR PATENT,
(iv) LANDLORD'S TITLE THERETO, (v) VALUE, (vi) COMPLIANCE WITH
SPECIFICATIONS, (vii) LOCATION, (viii) USE, (ix) CONDITION, (x)
MERCHANTABILITY, (xi) QUALITY, (xii) DESCRIPTION, (xiii) DURABILITY, (xiv)
OPERATION, (xv) THE EXISTENCE OF ANY HAZARDOUS MATERIAL OR (xvi) COMPLIANCE
OF THE PROPERTY WITH ANY LAW (INCLUDING ENVIRONMENTAL LAWS) OR LEGAL
REQUIREMENTS. TENANT ACKNOWLEDGES THAT THE PROPERTY IS OF ITS SELECTION AND
TO ITS SPECIFICATIONS AND THAT THE PROPERTY HAS BEEN INSPECTED BY TENANT AND
IS SATISFACTORY TO IT. IN THE EVENT OF ANY DEFECT OR DEFICIENCY IN THE
PROPERTY OF ANY NATURE, WHETHER LATENT OR PATENT, AS BETWEEN LANDLORD AND
TENANT, LANDLORD SHALL NOT HAVE ANY RESPONSIBILITY OR LIABILITY WITH RESPECT
THERETO OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING STRICT
LIABILITY IN TORT). THE PROVISIONS OF THIS SECTION 7.2 HAVE BEEN NEGOTIATED
AND REVIEWED BY TENANT'S LEGAL COUNSEL, AND ARE INTENDED TO BE A COMPLETE
EXCLUSION AND NEGATION OF ANY WARRANTIES BY LANDLORD, EXPRESS OR IMPLIED,
WITH RESPECT TO THE
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PROPERTY, ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY OTHER LAW
NOW OR HEREAFTER IN EFFECT OR ARISING OTHERWISE.
Tenant represents to Landlord that Tenant has examined the title to
the Property prior to the execution and delivery of this Lease and has found
the same to be satisfactory for the purposes contemplated hereby. Tenant
acknowledges that (A) Tenant or an Affiliate of Tenant has previously
operated the Property and has knowledge of its condition which is superior to
that of Landlord, (B) fee simple title, except where the Property is held
under a ground lease, (both legal and equitable) is in Landlord and that
Tenant has only the leasehold right of possession and use of the Property as
provided herein, (C) to Tenant's knowledge the Improvements conform to all
material Legal Requirements and all material Insurance Requirements, (D) all
easements necessary or appropriate for the use or operation of the Property
have been obtained, (E) all contractors and subcontractors retained by Tenant
who have performed work on or supplied materials to the Property have been
fully paid, and all materials to the Property have been fully paid for, (F)
the Improvements constructed by Tenant or any Affiliate of Tenant have been
completed in all material respects in a workmanlike manner of first class
quality, and (G) all equipment necessary or appropriate for the use or
operation of the Property has been installed and is presently operative in
all material respects.
ARTICLE 8
OWNERSHIP OF TANGIBLE PERSONAL PROPERTY
8.1 PROPERTY. Tenant acknowledges that (i) the Property has
been transferred to Landlord and leased to Tenant, (ii) the Property is the
property of Landlord and (iii) that Tenant has only the right to the use of
such Property during the Term of and upon the terms and conditions of this
Lease.
8.2 TENANT'S PERSONAL PROPERTY. Tenant shall maintain all of
the Property, whether initially included in the Lease or thereafter acquired
by Landlord or Tenant, in good condition and repair, normal wear and tear
excepted. Upon the loss, destruction or obsolescence of any Tangible Personal
Property, Tenant shall replace such property with replacements of the same
type and quality as initially in place, which such property will be owned by
Tenant except to the extent acquired with funds from the Capital Replacement
Fund ("Tenant's Personal Property"). Upon the expiration or sooner
termination of this Lease, the Tenant's Personal Property shall transfer to
Landlord without requirement of any xxxx of sale or assignment; provided
Landlord, at its election, may require Tenant to execute such documentation
as Landlord may require to evidence such transfer. Tenant shall not remove
any Tangible Personal Property from the Property upon termination of the
Lease. If any of such Tangible Personal Property is stored away from the
Property, Tenant will provide Landlord with proper access to the storage
facility.
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8.3 TENANT'S OBLIGATIONS. Tenant shall provide and maintain, or
cause to be provided and maintained, during the entire term of the Lease, all
Tangible Personal Property, as well as merchandise for sale to the public,
and food and beverage, as shall be necessary in order to operate the Property
in compliance with (a) all applicable Legal Requirements, (b) customary
practices in the golf industry, (c) past practices of the Transferor, and (d)
such other reasonable requirements imposed by Landlord from time to time.
8.4 LANDLORD'S WAIVERS. Any lessor of Tenant's Personal
Property may, upon notice to Landlord and during reasonable hours, enter the
Property and take possession of any of Tenant's Personal Property without
liability for trespass or conversion upon a default by Tenant, provided that
such lessor provide Landlord with the opportunity to cure the defaults of
Tenant on terms and conditions satisfactory to such lessor and Landlord.
ARTICLE 9
USE OF PROPERTY
9.1 USE. After the Commencement Date and during the Term,
Tenant shall use or cause to be used the Property and the improvements
thereon for its Primary Intended Use. Tenant shall not use the Property or
any portion thereof for any other use without the prior written consent of
Landlord, in Landlord's absolute discretion. No use shall be made or
permitted to be made of the Property, and no acts shall be done, which will
cause the cancellation of any insurance policy covering the Property or any
part thereof, nor shall Tenant sell or otherwise provide to patrons, or
permit to be kept, used or sold in or about the Property any article which
may be prohibited by law or by the standard form of fire insurance policies,
or any other insurance policies required to be carried hereunder, or fire
underwriters regulations. Tenant shall, at its sole cost, comply with all of
the requirements pertaining to the Property or other improvements of any
insurance board, association, organization or company necessary for the
maintenance of insurance, as herein provided, covering the Property and
Tenant's Personal Property.
9.2 SPECIFIC PROHIBITED USES. Tenant shall not use or occupy or
permit the Property to be used or occupied, nor do or permit anything to be
done in or on the Property, in a manner which would (i) violate or fail to
comply with any law, rule or regulation or Legal Requirement, (ii) subject to
Article 12, cause structural injury to any of the Improvements or (iii)
constitute a public or private nuisance or waste. Tenant shall not allow any
Hazardous Material to be located in, on or under the Property, or any
adjacent property, or incorporated in the Property or any improvements
thereon except in compliance with applicable law (including any Environmental
Laws). Tenant shall not allow the Property to be used as a landfill or a
waste
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disposal site, or a manufacturing, distribution or disposal facility for any
Hazardous Materials. Tenant shall neither suffer nor permit the Property or
any portion thereof, including Tenant's Personal Property, to be used in such
a manner as (i) might reasonably tend to impair Landlord's title thereto or
to any portion thereof, or (ii) may reasonably make possible a claim or
claims of adverse usage or adverse possession by the public, as such, or of
implied dedication of the Property or any portion thereof, or (iii) is in
material violation of any applicable Environmental Law.
9.3 MEMBERSHIP SALES. Tenant shall not sell and/or classify or
reclassify memberships, or set initiation fees, dues and other charges or
materially increase or decrease the number of memberships available at the
Property, except as follows:
(a) in accordance with Transferor's past practice, as reasonably
approved by Landlord, or
(b) membership plans and fees proposed by Tenant and approved by
Landlord, in Landlord's reasonable discretion.
9.4 LANDLORD TO GRANT EASEMENTS, ETC. Landlord shall, from time
to time so long as no Event of Default has occurred and is continuing, at the
request of Tenant and at Tenant's cost and expense (but subject to the
approval of Landlord, which approval shall not be unreasonably withheld or
delayed): (i) grant easements and other rights in the nature of easements;
(ii) release existing easements or other rights in the nature of easements
which are for the benefit of the Property; (iii) dedicate or transfer
unimproved portions of the Property for road, highway or other public
purposes; (iv) execute petitions to have the Property annexed to any
municipal corporation or utility district; (v) execute amendments to any
covenants and restrictions affecting the Property; and (vi) execute and
deliver to any person any instrument appropriate to confirm or effect such
grants, releases, dedications and transfers (to the extent of its interest in
the Property), but only upon delivery to Landlord of an Officer's Certificate
(which Officer's Certificate, if contested by Landlord, shall not be binding
on Landlord) stating that such grant, release, dedication, transfer, petition
or amendment is not detrimental to the proper conduct of the business of
Tenant on the Property and does not reduce its value or usefulness for the
Primary Intended Use. Landlord shall not grant, release, dedicate or execute
any of the foregoing items in this Section 9.4 without obtaining Tenant's
approval, which approval shall not be unreasonably withheld or delayed.
9.5 TENANT'S ADDITIONAL COVENANTS. Tenant shall (a) join the
Advisory Association and cooperate in the activities of such association; (b)
at its election, engage in reasonable cross-marketing endeavors with the
members of the Advisory Association; and (c) at its election, provide signage
on the
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Property which references that the Property is owned by Landlord, which
signage may include an appropriate logo selected by Landlord. In addition,
it is the intent of the parties that Tenant be a single-purpose entity with
no business operations except for those related solely to the operation of
the Property for its Primary Intended Use and other property of Landlord
which may be leased to Tenant. Tenant shall, therefore, not engage in or
undertake any activities other than those respecting the operation of the
Property for its Primary Intended Use, including leasing, managing, and
operating golf courses in accordance with this Lease.
9.6 VALUATION OF REMAINDER INTEREST IN LEASE. Tenant hereby
represents that, at the end of the Term, including all Extended Terms, it
expects that the Land and each of the Improvements will have a fair market
value (determined without regard to any increase or decrease for inflation or
deflation during the Term) equal to at least twenty percent (20%) of the fair
market value of the Land and each of the Improvements at the Commencement
Date. Tenant further represents that, at the end of the Term, including all
Extended Terms, it expects that the Land and each of the Improvements will
have a remaining useful life equal to at least twenty percent (20%) of its
expected useful life at the Commencement Date.
ARTICLE 10
HAZARDOUS MATERIALS
Except as set forth in the environmental report dated September,
1997, prepared by Law Engineering, Tenant hereby represents, warrants, and
covenants to Landlord as follows:
10.1 OPERATIONS. Except as set forth in the Agreement, the
Property is presently operated in compliance in all material respects with
all Environmental Laws.
10.2 REMEDIATION. Except as set forth in the Agreement, and to
the best knowledge of Tenant, there are no Environmental Laws requiring any
material remediation, cleanup, repairs or construction (other than normal
maintenance) with respect to the Property.
10.3 VIOLATIONS; ORDERS. Except as set forth in the Agreement,
and to the best knowledge of Tenant, (a) no notices of any violation or
alleged violation of any Environmental Laws relating to the Property or its
uses have been received by either Tenant, or, to the best knowledge of
Tenant, by any prior owner, operator or occupant of the Property, and (b)
there are no writs, injunctions, decrees, orders or judgments outstanding, or
any actions, suits, claims, proceedings or investigations pending or
threatened, relating to the ownership, use, maintenance or operation of the
Property.
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10.4 PERMITS. Except as set forth in the Agreement, all material
permits and licenses required under any Environmental Laws in respect of the
operations of the Property have been obtained or are in the process of being
obtained, and Tenant shall be in compliance, in all material respects, with
the terms and conditions of such permits and licenses.
10.5 REPORTS. All material reports of environmental surveys,
audits, investigations and assessments relating to the Property in the
possession or control of Tenant, Transferor or their Affiliates are set forth
or described in the Agreement.
10.6 REMEDIATION. If Tenant becomes aware of the presence of any
Hazardous Material in a quantity sufficient to require remediation or
reporting under any Environmental Law in, on or under the Property or if
Tenant, Landlord, or the Property becomes subject to any order of any
federal, state or local agency to investigate, remove, remediate, repair,
close, detoxify, decontaminate or otherwise clean up the Property, Tenant
shall, at its sole expense, but subject to the last sentence of Section 10.7,
carry out and complete any required investigation, removal, remediation,
repair, closure, detoxification, decontamination or other cleanup of the
Property. If Tenant fails to implement and diligently pursue any such
repair, closure, detoxification, decontamination or other cleanup of the
Property in a timely manner, Landlord shall have the right, but not the
obligation, to carry out such action and to recover its costs and expenses
therefor from Tenant as Additional Charges.
10.7 TENANT'S INDEMNIFICATION OF LANDLORD. Tenant shall pay,
protect, indemnify, save, hold harmless and defend Landlord, the Company,
Affiliates of the Company and Landlord (including, without limitation, their
respective officers, directors and controlling persons), and any Facility
Mortgagee from and against all liabilities, obligations, claims, damages
(including punitive or consequential damages), penalties, causes of action,
demands, judgments, costs and expenses (including reasonable attorneys' fees
and expenses), to the extent permitted by law, imposed upon or incurred by or
asserted against Landlord or the Property by reason of any Environmental Law
(irrespective of whether there has occurred any violation of any
Environmental Law) in respect of the Property howsoever arising, without
regard to fault on the part of Tenant, including (a) liability for response
costs and for costs of removal and remedial action incurred by the United
States Government, any state or local governmental unit to any other Person,
or damages from injury to or destruction or loss of natural resources,
including the reasonable costs of assessing such injury, destruction or loss,
incurred pursuant to any Environmental Law, (b) liability for costs and
expenses of abatement, investigation, removal, remediation, correction or
clean-up, fines, damages, response costs or penalties which arise from the
provisions of any
26
Environmental Law, (c) liability for personal injury or property damage
arising under any statutory or common-law tort theory, including damages
assessed for the maintenance of a public or private nuisance or for carrying
on of a dangerous activity, or (d) by reason of a breach of a representation
or warranty in Sections 10.1 through 10.5 of this Lease. Notwithstanding the
foregoing or any other provision of this Lease (including, without
limitation, Section 7.2, Section 10.9 and Article 23), Tenant shall not be
liable, or otherwise be required to indemnify Landlord or the Company or any
Affiliates of the Company for (i) any matters or events that arise after the
Commencement Date that are not caused by any act or omission on the part of
Tenant, or (ii) any matters or events that arise after the Commencement Date
that are directly caused by a breach by Landlord of the terms of this Lease.
10.8 SURVIVAL OF INDEMNIFICATION OBLIGATIONS. Tenant's
obligations and/or liability under this Article 10 arising during the Term
hereof shall survive any termination of this Lease.
10.9 ENVIRONMENTAL VIOLATIONS AT EXPIRATION OR TERMINATION OF
LEASE. Notwithstanding any other provision of this Lease (except the last
sentence of Section 10.7), if, at a time when the Term would otherwise
terminate or expire, a violation of any Environmental Law has been asserted
by Landlord and has not been resolved in a manner reasonably satisfactory to
Landlord, or has been acknowledged by Tenant to exist or has been found to
exist at the Property or has been asserted by any governmental authority and
Tenant's failure to have completed all action required to correct, xxxxx or
remediate such a violation of any Environmental Law materially impairs the
leasability of the Property upon the expiration of the Term, then, at the
option of Landlord, the Term shall be automatically extended with respect to
the Property beyond the date of termination or expiration and this Lease
shall remain in full force and effect under the same terms and conditions
beyond such date with respect to the Property until the earlier to occur of
(i) the completion of all remedial action in accordance with applicable
Environmental Laws or (ii) 12 months beyond such expiration or termination
date; PROVIDED, that Tenant may, upon any such extension of the Term,
terminate the Term by paying to Landlord such amount as is necessary in the
reasonable judgment of Landlord to complete or perform such remedial action.
ARTICLE 11
MAINTENANCE AND REPAIR
11.1 TENANT'S OBLIGATIONS. Tenant, at its expense, will operate
and maintain the Property in good order, repair and appearance (whether or
not the need for such repairs occurs as a result of Tenant's use, any prior
use, the elements or the age of the Property or any portion thereof) and in
accordance with any applicable Legal Requirements, and, except as otherwise
provided
27
in Article 15, with reasonable promptness, make all necessary and appropriate
repairs thereto of every kind and nature, whether interior or exterior,
structural or non-structural, ordinary or extraordinary, foreseen or
unforeseen or arising by reason of a condition existing prior to the
Commencement Date (concealed or otherwise). Tenant shall operate and
maintain the Property in accordance with the operation and maintenance
practices of the Property at the Commencement Date and otherwise in a manner
comparable to other comparable golf course facilities in the vicinity of the
Property. Landlord may consult with the Advisory Association from time to
time with respect to Tenant's compliance with its maintenance and operation
obligations under this Section 11.1, and Landlord and representatives of
Advisory Association shall have the right from time to time to enter the
Property for the purpose of inspecting the Property. If Landlord, in
consultation with the Advisory Association, determines that Tenant has failed
to comply with its maintenance and operation obligations under this Section
11.1, Landlord shall provide written notice to Tenant setting forth a list of
remedial work and/or steps to be performed by Tenant. Tenant shall promptly
and diligently perform such remedial work and/or steps as recommended by
Landlord, provided if Tenant objects to one or more of the remedial
obligations proposed by Landlord, then the matter shall be submitted to the
dispute resolution procedure set forth in Section 12.7. Tenant will not take
or omit to take any action the taking or omission of which could reasonably
be expected to impair the value or the usefulness of the Property or any part
thereof for its Primary Intended Use.
11.2 WAIVER OF STATUTORY OBLIGATIONS. Landlord shall not under
any circumstances be required to build or rebuild any improvements on the
Property, or to make any repairs, replacements, alterations, restorations or
renewals of any nature or description to the Property, whether ordinary or
extraordinary, structural or non-structural, foreseen or unforeseen, or to
make any expenditure whatsoever with respect thereto, in connection with this
Lease, or to maintain the Property in any way. Tenant hereby waives, to the
extent permitted by law, the right to make repairs at the expense of Landlord
pursuant to any law in effect at the time of the execution of this Lease or
hereafter enacted.
11.3 MECHANIC'S LIENS. Nothing contained in this Lease and no
action or inaction by Landlord shall be construed as (i) constituting the
consent or request of Landlord expressed or implied, to any contractor,
subcontractor, laborer, materialman or vendor to or for the performance of
any labor or services or the furnishing of any materials or other property
for the construction, alteration, addition, repair or demolition of or to the
Property or any part thereof; or (ii) giving Tenant any right, power or
permission to contract for or permit the performance of any labor or services
or the furnishing of any materials or other property, in either case, in such
fashion as
28
would permit the making of any claim against Landlord in respect thereof or
to make any agreement that may create, or in any way be the basis for, any
right, title, interest, lien, claim or other encumbrance upon the estate of
Landlord in the Property, or any portion thereof.
11.4 SURRENDER OF PROPERTY. Unless the Lease shall have been
terminated pursuant to the provisions of Article 15, Tenant shall, upon the
expiration or prior termination of the Term, vacate and surrender the Property
to Landlord in the condition in which the Property was originally received from
Landlord, except as repaired, rebuilt, restored, altered or added to as
permitted or required by the provisions of this Lease and except for ordinary
wear and tear (subject to the obligation of Tenant to maintain the Property in
good order and repair during the entire Term of the Lease).
11.5 BUNKER REPAIRS. During the Initial Term, Tenant shall have
the right to cause repairs to be made to bunkers on the Property (the "Bunker
Repairs"), which Bunker Repairs shall be completed to the satisfaction of
Landlord. So long as the Net Operating Income for the immediately preceding
fiscal year was equal to or greater than 113.5% of Base Rent (as increased for
the payment of the Bunker Repair Funds) and the Percentage Rent, then Landlord
shall provide Tenant with funds (the "Bunker Repair Funds") necessary to
complete the Bunker Repairs, in an amount not to exceed One Hundred Thousand
Dollars ($100,000). Payment of the Bunker Repair Funds shall be made within
thirty (30) days of Landlord's receipt and approval of paid invoices for the
same.
ARTICLE 12
TENANT IMPROVEMENTS; SUBMITTAL OF BUDGETS; FINANCIAL STATEMENTS
12.1 TENANT'S RIGHT TO CONSTRUCT. Subject to the prior written
approval of Landlord in its reasonable discretion, during the Lease Term Tenant
may make alterations, additions, changes and/or improvements to the Property
(individually, a "Tenant Improvement," and collectively, "Tenant Improvements").
Any such Tenant Improvement shall be made at Tenant's sole expense and shall
become the property of Landlord upon termination of this Lease. Unless made on
an emergency basis to prevent injury to Person or property, Tenant will submit
plans and specifications for any Tenant Improvements, in the form necessary for
any required building permits, to Landlord for Landlord's prior written
approval, such approval not to be unreasonably withheld or delayed.
Upon approval by Landlord:
(a) Tenant shall diligently seek all governmental approvals and
any other necessary private approvals (E.G., ground lessor, mortgagee,
etc.) relating to the construction of any Tenant Improvement; and
29
(b) once Tenant begins the construction of any Tenant Improvement,
Tenant shall diligently prosecute any such Tenant Improvement to completion
in accordance with applicable insurance requirements and the laws, rules
and regulations of all governmental bodies or agencies having jurisdiction
over the Property; and
(c) Tenant shall not suffer or permit any mechanics' liens or any
other claims or demands arising from the work of construction of any Tenant
Improvement to be enforced against the Property or any part thereof, and
Tenant agrees to hold Landlord and the Property free and harmless from all
liability from any such liens, claims or demands, together with all costs
and expenses in connection therewith; and
(d) all work shall be performed in a good and workmanlike manner.
12.2 SCOPE OF RIGHT. Subject to Section 12.1, at Tenant's cost and
expense, Tenant shall have the right to:
(a) seek any governmental approvals, including building permits,
licenses, conditional use permits and any certificates of need that Tenant
requires to construct any Tenant Improvement;
(b) erect upon the Property such Tenant Improvements as Tenant
deems desirable; and
(c) engage in any other lawful activities that Tenant determines
are necessary or desirable for the development of the Property in
accordance with its Primary Intended Use.
12.3 COOPERATION OF LANDLORD. Landlord shall cooperate with Tenant
and take such actions, including the execution and delivery to Tenant of any
applications or other documents, reasonably requested by Tenant in order to
obtain any governmental approvals sought by Tenant to construct any Tenant
Improvement approved by Landlord in accordance with Section 12.1 of this Lease
within ten (10) Business Days following the later of (a) the date Landlord
receives Tenant's request, or (b) the date of delivery of any such application
or document to Landlord, so long as the taking of such action, including the
execution of said applications or documents, shall be without cost to Landlord
(or if there is a cost to Landlord, such cost shall be reimbursed by Tenant),
and will not cause Landlord to be in violation of any law, ordinance or
regulation.
Landlord shall have the right at any time and from time to time to
post and maintain upon the Property such notices as may be necessary to protect
Landlord's interest from mechanics' liens, materialmen's liens or liens of a
similar nature.
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12.4 CAPITAL REPLACEMENT FUND. Solely from the payment of
additional rent received pursuant to Section 4.9 of this Lease, Landlord shall
be obligated to accrue the Capital Replacement Reserve. The Capital Replacement
Reserve shall accrue quarterly based on the Officer's Certificate and shall be
placed in the Capital Replacement Fund. Amounts in the Capital Replacement Fund
from time to time shall be deemed to accrue interest at a money market rate as
reasonably determined by Landlord and such interest shall be credited to the
Capital Replacement Fund. Upon the written request by Tenant to Landlord
stating the specific use to be made and subject to the reasonable approval of
Landlord, the Capital Replacement Fund shall be made available to Tenant for
Capital Expenditures; PROVIDED, HOWEVER, no portion of amounts credited to the
Capital Replacement Fund shall be used to purchase property to the extent that
doing so would cause Landlord to recognize income other than "rents from real
property" as defined in Section 856(d) of the Code. Tenant shall have no rights
with respect to any amounts in the Capital Replacement Fund except as provided
herein. Subject to Landlord's approval of the Capital Expenditures, Landlord
shall make available to Tenant amounts from the Capital Replacement Fund under
the following conditions:
(a) No Event of Default exists and is continuing;
(b) Tenant presents paid qualifying receipts for reimbursement, or
qualifying invoices for direct payment to the vendor;
(c) Such expenditures are included in the Capital Budget submitted
to and approved by Landlord in accordance with Section 12.7; and
(d) If from time to time Tenant shall expend monies beyond the
balance in the Capital Replacement Fund, then Tenant shall be afforded the
opportunity to present such paid invoices for reimbursement at later dates
when the Tenant's reserve balance shall be replenished to a level that can
support such expenditure.
12.5 RIGHTS IN TENANT IMPROVEMENTS. All Tenant Improvements shall
be the property of Landlord. However, Tenant shall be entitled to all federal
and state income tax benefits associated with any Tenant Improvement during the
Lease Term exclusive of any Capital Expenditures paid for from amounts credited
to the Capital Replacement Fund, as to which Landlord shall be entitled all
income tax benefits.
12.6 LANDLORD'S RIGHT TO AUDIT CALCULATION OF GROSS GOLF REVENUE.
Landlord, at its own expense except as provided hereinbelow, shall have the
right from time to time directly or though its accountants to audit the
information set forth in the Officer's Certificate referred to in Section 4.4
and in
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connection with such audits to examine Tenant's book and records with respect
thereto (including supporting data, sales tax returns and Tenant's work
papers). If any such audit discloses a deficiency in the payment of
Percentage Rent, Tenant shall forthwith pay to Landlord the amount of the
deficiency as finally agreed or determined, together with interest at the
Overdue Rate from the date when said payment should have been made to the
date of payment thereof; PROVIDED, HOWEVER, that as to any audit that is
commenced more than twelve (12) months after the date Gross Golf Revenue for
any Fiscal Year is reported by Tenant to Landlord in the Officer's
Certificate, the deficiency, if any, with respect to such Gross Golf Revenue
shall bear interest as permitted herein only from the date such determination
of deficiency is made unless such deficiency is the result of gross
negligence or willful misconduct on the part of Tenant. If any such audit
discloses that the Gross Golf Revenue actually received by Tenant for any
Fiscal Year exceeds the Gross Golf Revenue reported by Tenant in the
Officer's Certificate by more than two percent (2%), then Tenant shall pay
all reasonable costs of such audit and examination; provided Tenant shall
have the right to submit the audit determination to arbitration in accordance
with the procedures set forth in Article 28. Landlord shall also have the
right to review and audit from time to time Tenant's business operations
including all books, records and financial statements of Tenant. Tenant
shall promptly provide to Landlord copies of all such books, records,
financial statements or any other documentation of Tenant's business
operations reasonably requested by Landlord.
12.7 ANNUAL BUDGET. Not later than forty-five (45) days prior to
the commencement of each Fiscal Year, Tenant shall prepare and submit to
Landlord an operating budget (the "Operating Budget") and a capital budget (the
"Capital Budget") prepared in accordance with the requirements of this
Section 12.7. The Operating Budget and the Capital Budget (together, the
"Annual Budget") shall be prepared in a form approved by Landlord for use
throughout the Lease Term and show by quarter and for the year as a whole the
following:
(a) Tenant's reasonable estimate of Gross Golf Revenue (including
membership dues, daily use fees and other sources of Gross Golf Revenue) and
other revenue for the forthcoming Fiscal Year itemized on schedules on a
quarterly basis as approved by Landlord and Tenant, together with assumptions,
in narrative form, forming the basis of such schedules.
(b) An estimate of any amounts Landlord will be requested to
provide for Capital Expenditures during the next four Fiscal Years, subject to
the limitations set forth in Section 12.4.
(c) A cash flow projection.
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(d) A narrative description of any anticipated significant events,
including, if requested by Landlord, a narrative description of any category of
operating expenses that decrease or increase by five percent (5%) or more from
the prior year's expenses.
(e) Tenant's reasonable estimate for each Fiscal Quarter of the
Percentage Rent to be paid for such quarter.
Landlord shall have thirty (30) days after the date on which it
receives the Annual Budget to review, approve or disapprove the Annual Budget.
If the parties are not able to reach agreement on the Annual Budget for any
Fiscal Year during Landlord's thirty (30) day review period, the parties shall
attempt in good faith during the subsequent thirty (30) day period to resolve
any disputes, which attempts shall include, if requested by either party, at
least one (1) meeting of executive-level officers of Landlord and Tenant and one
(1) meeting with the directors of the Advisory Association. In the event the
parties are still not able to reach agreement on the Annual Budget for any
particular Fiscal Year after complying with the foregoing requirements of this
Section 12.7, the parties shall adopt such portions of the Operating Budget and
the Capital Budget as they may have agreed upon, and any matters not agreed upon
shall be referred to a dispute resolution committee composed of three (3)
members of the Advisory Association unaffiliated with Tenant and two (2) members
of the board of directors of the Company. Such committee shall be responsible
for resolving any such disagreement and the parties agree that the determination
of such dispute resolution committee shall be binding on the parties. Pending
the results of such resolution or the earlier agreement of the parties, (i) if
the Operating Budget has not been agreed upon, the Property will be operated in
a manner consistent with the prior year's Operating Budget until a new Operating
Budget is adopted, and (ii) if the Capital Budget has not been agreed upon, no
Capital Expenditures shall be made unless the same are set forth in a previously
approved Capital Budget or are specifically required by Landlord or are
otherwise required to comply with Legal Requirements or Insurance Requirements.
Tenant shall operate the Property in a manner reasonably consistent with the
Annual Budget.
12.8 FINANCIAL STATEMENTS.
(a) Tenant shall utilize, or cause to be utilized, an accounting
system for the Property in accordance with its usual and customary practice, and
in accordance with GAAP, that will accurately record all data necessary to
compute Percentage Rent, and Tenant shall retain for at least five (5) years
after the expiration of each Fiscal Year, reasonably adequate records conforming
to such accounting system showing all data necessary to compute Percentage Rent.
The books of account and all other records relating to or reflecting the
operation of the Property
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shall be kept either at the Property or at Tenant's offices in Libertyville,
Illinois. Such books and records shall be available to Landlord and its
representatives for examination, audit, inspection and transcription.
(b) Tenant shall furnish to Landlord within thirty (30) days of
the end of each Fiscal Quarter (i) unaudited financial statements for the Fiscal
Quarter and year to date, together with the same information for the comparable
prior Fiscal Quarter and year to date, including the following: results of
operations and a balance sheet. If Landlord requests, Tenant shall provide
reviewed financial statements for such Fiscal Quarter; provided, however, such
review (except as provided for in clause (ii)) shall be at Landlord's expense.
Each quarterly report shall also include a narrative explaining any deviation in
any major revenue or expense category or operating expenses (by category) of
more than ten percent (10%) from the amounts set forth on the Annual Budget,
together with, if appropriate a revised Annual Budget, which budget shall be
subject to Landlord's review and approval as provided in Section 12.7. Each
quarterly report shall also forecast any projected Percentage Rent payable for
the following Fiscal Quarter.
(c) For each Fiscal Year, Tenant shall deliver to Landlord within
sixty (60) days of the end of such Fiscal Year financial statements prepared in
accordance with GAAP and audited by an independent accounting firm approved by
Landlord, in its reasonable discretion. Notwithstanding the foregoing, Landlord
shall only require audited financial statements of Gross Golf Revenue if
Tenant's financial statements are not required to be separately stated by the
Securities and Exchange Commission.
(d) If requested by Landlord, Tenant will make available to
Landlord and the Company and their respective lenders, underwriters, counsel,
accountants and advisors such additional information and financial statements
with respect to Tenant and the Property as Landlord may reasonably request
without any additional cost to Tenant, and Tenant agrees to reasonably cooperate
with Landlord and the Company in effecting public or private debt or equity
financings by the Landlord or the Company, without any additional cost to
Tenant, modifications to this Lease or the requirement of additional collateral
from Tenant.
ARTICLE 13
LIENS, ENCROACHMENTS AND OTHER TITLE MATTERS
13.1 LIENS. Subject to the provisions of Article 14 relating to
permitted contests, Tenant will not directly or indirectly create or allow to
remain, and will promptly discharge at its expense any lien, encumbrance,
attachment, title retention agreement or claim upon the Property or any
attachment, levy,
34
claim or encumbrance emanating from Tenant's actions or negligence, not
including, however:
(a) this Lease;
(b) the matters, if any, that existed as of the Commencement Date,
as set forth on the title policy received by Landlord;
(c) restrictions, liens and other encumbrances which are consented
to in writing by Landlord, or any easements granted pursuant to the
provisions of Section 9.4 of this Lease;
(d) liens for those taxes of Landlord which Tenant is not required
to pay hereunder;
(e) subleases or licenses permitted by Article 23;
(f) liens for Impositions or for sums resulting from noncompliance
with Legal Requirements so long as (1) the same are not yet payable or are
payable without the addition of any fine or penalty or (2) such liens are
in the process of being contested as permitted by Article 14;
(g) liens of mechanics, laborers, materialmen, suppliers or
vendors for sums either disputed (PROVIDED THAT such liens are in the
process of being contested as permitted by Article 14) or not yet due; and
(h) any liens which are the responsibility of Landlord pursuant to
the provisions of Article 25.
13.2 ENCROACHMENTS AND OTHER TITLE MATTERS. Subject to Article 21
and excepting any matters granted or created by Landlord after the Commencement
Date, if any of the Improvements shall, at any time, encroach upon any property,
street or right-of-way adjacent to the Property, or shall violate the agreements
or conditions contained in any lawful restrictive covenant or other agreement
affecting the Property, or any part thereof, or shall impair the rights of
others under any easement or right-of-way to which the Property is subject, or
the use of the Property is impaired, limited or interfered with by reason of the
exercise of the right of surface entry or any other rights under a lease or
reservation of any oil, gas, water or other minerals, then promptly upon request
of Landlord or at the behest of any person affected by any such encroachment,
violation or impairment, Tenant, at its sole cost and expense (subject to its
right to contest the existence of any such encroachment, violation or
impairment), shall protect, indemnify, save harmless and defend Landlord, the
Company and Affiliates of the Company from and against all losses, liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses
(including
35
reasonable attorneys' fees and expenses) based on or arising by reason of any
such encroachment, violation or impairment and in such case, in the event of
an adverse final determination, either (i) obtain valid and effective waivers
or settlements of all claims, liabilities and damages resulting from each
such encroachment, violation or impairment, whether the same shall affect
Landlord or Tenant; or (ii) make such changes in the Improvements, and take
such other actions, as Tenant in the good faith exercise of its judgment
deems reasonably practicable, to remove such encroachment, and to end such
violation or impairment, including, if necessary, the alteration of any of
the Improvements, and in any event take all such actions as may be necessary
in order to be able to continue the operation of the Improvements for the
Primary Intended Use substantially in the manner and to the extent the
Improvements were operated prior to the assertion of such violation or
encroachment. Tenant's obligation under this Section 13.2 shall be in
addition to and shall in no way discharge or diminish any obligation of any
insurer under any policy of title or other insurance and Tenant shall be
entitled to a credit for any sums recovered by Landlord under any such policy
of title or other insurance.
ARTICLE 14
PERMITTED CONTESTS
14.1 AUTHORIZATION. Tenant, on its own or on Landlord's behalf (or
in Landlord's name) but at Tenant's expense, may contest, by appropriate legal
proceedings conducted in good faith and with due diligence, the amount, validity
or application, in whole or in part, of any Imposition or any Legal Requirement
or Insurance Requirement, or any lien, attachment, levy, encumbrance, charge or
claim not otherwise permitted by Section 13.1; provided, however, that nothing
in this Section 14.1 shall limit the right of Landlord to contest the amount,
validity or application, in whole or in part, of any Imposition, Legal
Requirement, Insurance Requirement, or any lien, attachment, levy, encumbrance,
charge or claim with respect to the Property (and Tenant shall reasonably
cooperate with Landlord with respect to such contest), and, FURTHER PROVIDED
THAT:
(a) in the case of an unpaid Imposition, lien, attachment, levy,
encumbrance, charge or claim, the commencement and continuation of such
proceedings shall suspend the collection thereof from Landlord and from the
Property, and neither the Property nor any Rent therefrom nor any part
thereof or interest therein would be in any danger of being sold,
forfeited, attached or lost pending the outcome of such proceedings;
(b) in the case of a Legal Requirement, Landlord would not be
subject to criminal or material civil liability for failure to comply
therewith pending the outcome of such proceedings. Nothing in this Section
14.1(b), however,
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shall permit Tenant to delay compliance with any requirement of an
Environmental Law to the extent such non-compliance poses an immediate
threat of injury to any Person or to the public health or safety or of
material damage to any real or personal property;
(c) in the case of a Legal Requirement and/or an Imposition, lien,
encumbrance or charge, Tenant shall give such reasonable security, if any,
as may be demanded by Landlord to insure ultimate payment of the same and
to prevent any sale or forfeiture of the affected Property or the Rent by
reason of such non-payment or noncompliance, PROVIDED, HOWEVER, the
provisions of this Article 14 shall not be construed to permit Tenant to
contest the payment of Rent (except as to contests concerning the method of
computation or the basis of levy of any Imposition or the basis for the
assertion of any other claim) or any other sums payable by Tenant to
Landlord hereunder;
(d) no such contest shall interfere in any material respect with
the use or occupancy of the Property;
(e) in the case of an Insurance Requirement, the coverage required
by Article 15 shall be maintained; and
(f) if such contest be finally resolved against Landlord or
Tenant, Tenant shall, as Additional Charges due hereunder, promptly pay the
amount required to be paid, together with all interest and penalties
accrued thereon, or comply with the applicable Legal Requirement or
Insurance Requirement.
14.2 INDEMNIFICATION OF LANDLORD. Landlord, at Tenant's expense,
shall execute and deliver to Tenant such authorizations and other documents as
may reasonably be required in any such contest, and, if reasonably requested by
Tenant or if Landlord so desires, Landlord shall join as a party therein.
Tenant shall indemnify and save Landlord harmless against any liability, cost or
expense of any kind that may be imposed upon Landlord in connection with any
such contest and any loss resulting therefrom.
ARTICLE 15
INSURANCE
15.1 GENERAL INSURANCE REQUIREMENTS. During the Lease Term, Tenant
shall at all times keep the Property, and all property located in or on the
Property, including all Tenant's Personal Property and any Tenant Improvements,
insured with the kinds and amounts of insurance described below. This insurance
shall be written by companies authorized to do insurance business in the State,
and shall otherwise meet the requirements set forth in Section 15.5 of this
Lease. The policies must name Landlord
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as an additional insured or loss payee, as applicable. Losses shall be
payable to Landlord and/or Tenant as provided in this Article 15. In
addition, the policies shall name as a loss payee any Facility Mortgagee by
way of a standard form of mortgagee's loss payable endorsement. Any loss
adjustment shall require the written consent of Landlord, Tenant, and each
Facility Mortgagee, if any. Evidence of insurance shall be deposited with
Landlord and, if requested, with any Facility Mortgagee(s). The policies on
the Property, including the Improvements, Fixtures, Tangible and Intangible
Personal Property and any Tenant Improvements, shall insure against the
following risks:
(a) ALL RISK. Loss or damage by all risks or perils including,
but not limited to, fire, vandalism, malicious mischief and extended
coverages, including sprinkler leakage, in an amount not less than 100% of
the then Full Replacement Cost thereof covering all structures built on the
Property and all Tangible Personal Property; and further provided the
Tangible Personal Property may be insured at its fair market value.
(b) LIABILITY. Claims for personal injury or property damage
under a policy of comprehensive general public liability insurance with
amounts not less than five million dollars ($5,000,000) per occurrence and
in the aggregate.
(c) FLOOD. Flood insurance (when the Property is located in whole
or in material part a designated flood plain area) in an amount similar to
the amount insured by comparable golf course properties in the area.
Notwithstanding the foregoing, Tenant shall not be required to participate
in the National Flood Insurance Program or otherwise obtain flood insurance
to the extent not available at commercially reasonable rates; provided
Tenant shall give Landlord written notice thereof prior to cancelling or
not obtaining any flood insurance. Tenant may opt to insure the structures
only, and not the Land, subject to the approval of Landlord, in Landlord's
reasonable discretion.
(d) WORKER'S COMPENSATION. Adequate worker's compensation
insurance coverage for all Persons employed by Tenant on the Property in
accordance with the requirements of applicable federal, state and local
laws. Tenant shall have the option to self-insure up to five thousand
dollars ($5,000) of the amount of insurance required in the event State law
permits such self-insurance, subject to the approval of Landlord, in
Landlord's sole and absolute discretion.
15.2 OTHER INSURANCE. Such other insurance on or in connection
with any of the Property as Landlord or any Facility Mortgagee may reasonably
require, which at the time is usual and commonly obtained in connection with
properties similar in type
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of building size and use to the Property and located in the geographic area
where the Property is located.
15.3 REPLACEMENT COST. In the event either party believes that the
Full Replacement Cost of the insured property has increased or decreased at any
time during the Lease Term, it shall have the right to have such Full
Replacement Cost redetermined by the Impartial Appraiser. The party desiring to
have the Full Replacement Cost so redetermined shall forthwith, on receipt of
such determination by such Impartial Appraiser, give written notice thereof to
the other party hereto. The determination of such Impartial Appraiser shall be
final and binding on the parties hereto, and Tenant shall forthwith increase, or
may decrease, the amount of the insurance carried pursuant to this Section 15.3,
as the case may be, to the amount so determined by the Impartial Appraiser.
Each party shall pay one-half of the fee, if any, of the Impartial Appraiser.
15.4 WAIVER OF SUBROGATION. All insurance policies carried by
either party covering the Property including contents, fire and casualty
insurance, shall expressly waive any right of subrogation on the part of the
insurer against the other party (including any Facility Mortgagee). The parties
hereto agree that their policies will include such waiver clause or endorsement
so long as the same are obtainable without extra cost, and in the event of such
an extra charge the other party, at its election, may pay the same, but shall
not be obligated to do so.
15.5 FORM SATISFACTORY, ETC. All of the policies of insurance
referred to in this Article 15 shall be written in a form reasonably
satisfactory to Landlord and by insurance companies rated not less than XV by
A.M. Best's Insurance Guide. Tenant shall pay all premiums for the policies of
insurance referred to in Sections 15.1 and 15.2 and shall deliver certificates
thereof to Landlord prior to their effective date (and with respect to any
renewal policy, at least ten (10) days prior to the expiration of the existing
policy). In the event Tenant fails to satisfy its obligations under this
Article 15, Landlord shall be entitled, but shall have no obligation, to effect
such insurance and pay the premiums therefore, which premiums shall be repayable
to Landlord upon written demand as Additional Charges. Each insurer issuing
policies pursuant to this Article 15 shall agree, by endorsement on the policy
or policies issued by it, or by independent instrument furnished to Landlord,
that it will give to Landlord thirty (30) days' written notice before the policy
or policies in question shall be altered, allowed to expire or cancelled. Each
such policy shall also provide that any loss otherwise payable thereunder shall
be payable notwithstanding (i) any act or omission of Landlord or Tenant which
might, absent such provision, result in a forfeiture of all or a part of such
insurance payment, (ii) the occupation or use of the Property for purposes more
hazardous than those
39
permitted by the provisions of such policy, (iii) any foreclosure or other
action or proceeding taken by any Facility Mortgagee pursuant to any
provision of a mortgage, note, assignment or other document evidencing or
securing a loan upon the happening of an event of default therein or (iv) any
change in title to or ownership of the Property.
15.6 CHANGE IN LIMITS. In the event that Landlord shall at any
time reasonably determine on the basis of prudent industry practice that the
liability insurance carried by Tenant pursuant to Sections 15.1 and 15.2 is
either excessive or insufficient, the parties shall endeavor to agree on the
proper and reasonable limits for such insurance to be carried; and such
insurance shall thereafter be carried with the limits thus agreed on until
further changed pursuant to the provisions of this Article 15; PROVIDED,
HOWEVER, that the deductibles for such insurance or the amount of such insurance
which is self-retained by Tenant shall be as reasonably determined by Tenant so
long as Tenant can reasonably demonstrate its ability to satisfy such deductible
or amount of such self-retained insurance.
15.7 BLANKET POLICY. Notwithstanding anything to the contrary
contained in this Article 15, Tenant's obligations to carry the insurance
provided for herein may be brought within the coverage of a so-called blanket
policy or policies of insurance carried and maintained by Tenant; PROVIDED,
HOWEVER, that the coverage afforded Landlord will not be reduced or diminished
or otherwise be different from that which would exist under a separate policy
meeting all other requirements of this Lease by reason of the use of such
blanket policy of insurance, and provided further that the requirements of this
Article 15 are otherwise satisfied. The amount of this total insurance
allocated to each of the Leased Properties, which amount shall be not less than
the amounts required pursuant to Sections 15.1 and 15.2, shall be specified
either (i) in each such "blanket" or umbrella policy or (ii) in a written
statement, which Tenant shall deliver to Landlord and Facility Mortgagee, from
the insurer thereunder. A certificate of each such "blanket" or umbrella policy
shall promptly be delivered to Landlord and Facility Mortgagee.
15.8 INSURANCE PROCEEDS. All proceeds of insurance payable by
reason of any loss or damage to the Property, or any portion thereof, and
insured under any policy of insurance required by this Article 15 shall (i) if
greater than $100,000, be paid to Landlord and held by Landlord and (ii) if less
than such amount, be paid to Tenant and held by Tenant. All such proceeds shall
be held in trust and shall be made available for reconstruction or repair, as
the case may be, of any damage to or destruction of the Property, or any portion
thereof.
15.9 DISBURSEMENT OF PROCEEDS. Any proceeds held by Landlord or
Tenant shall be paid out by Landlord or Tenant from
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time to time for the reasonable costs of such reconstruction or repair;
PROVIDED, HOWEVER, that Landlord shall disburse proceeds subject to the
following requirements:
(a) prior to commencement of restoration, (i) the architects,
contracts, contractors, plans and specifications for the restoration shall
have been approved by Landlord, which approval shall not be unreasonably
withheld or delayed and (ii) appropriate waivers of mechanics' and
materialmen's liens shall have been filed;
(b) Tenant shall have obtained and delivered to Landlord copies of
all necessary governmental and private approvals necessary to complete the
reconstruction or repair, including building permits, licenses, conditional
use permits and certificates of need;
(c) at the time of any disbursement, subject to Article 14, no
mechanics' or materialmen's liens shall have been filed against any of the
Property and remain undischarged, unless a satisfactory bond shall have
been posted in accordance with the laws of the State;
(d) disbursements shall be made from time to time in an amount not
exceeding the cost of the work completed since the last disbursement, upon
receipt of (i) satisfactory evidence of the stage of completion, the
estimated total cost of completion and performance of the work to date in a
good and workmanlike manner in accordance with the contracts, plans and
specifications, (ii) waivers of liens, (iii) a satisfactory bring down of
title insurance and (iv) other evidence of cost and payment so that
Landlord and Facility Mortgagee can verify that the amounts disbursed from
time to time are represented by work that is completed, in place and free
and clear of mechanics' and materialmen's lien claims;
(e) each request for disbursement shall be accompanied by a
certificate of Tenant, signed by a senior member or officer of Tenant,
describing the work for which payment is requested, stating the cost
incurred in connection therewith, stating that Tenant has not previously
received payment for such work and, upon completion of the work, also
stating that the work has been fully completed and complies with the
applicable requirements of this Lease;
(f) to the extent actually held by Landlord and not a Facility
Mortgagee, (1) the proceeds shall be held in a separate account and shall
not be commingled with Landlord's other funds, and (2) interest shall
accrue on funds so held at the money market rate of interest and such
interest shall constitute part of the proceeds; and
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(g) such other reasonable conditions as Landlord or Facility
Mortgagee may reasonably impose, including, without limitation, payment by
Tenant of reasonable costs of administration imposed by or on behalf of
Facility Mortgagee should the proceeds be held by Facility Mortgagee.
15.10 EXCESS PROCEEDS, DEFICIENCY OF PROCEEDS. Any excess proceeds
of insurance remaining after the completion of the restoration or reconstruction
of the Property (or in the event neither Landlord nor Tenant is required to or
elects to repair and restore) shall be paid to Landlord and deposited in the
Capital Replacement Fund except for any portion specifically applicable to
Tenant's merchandise and inventory. All salvage resulting from any risk covered
by insurance shall belong to Landlord.
If the costs of restoration or reconstruction exceeds the amount of
proceeds received by Landlord or Tenant from insurance, Tenant shall pay for
such excess cost of restoration or reconstruction, except that Tenant may
petition Landlord for withdrawal from the Capital Replacement Fund to cover some
or all of such excess, subject to the approval of Landlord in Landlord's sole
and absolute discretion.
15.11 RECONSTRUCTION COVERED BY INSURANCE.
(a) DESTRUCTION RENDERING PROPERTY UNSUITABLE FOR ITS PRIMARY USE.
If during the term the Property is totally or partially destroyed from a
risk covered by the insurance described in Article 15 and the Property
thereby is rendered Unsuitable For Its Primary Intended Use as reasonably
determined by Landlord, Tenant shall, at its election, either (i)
diligently restore the Property to substantially the same condition as
existed immediately before the damage or destruction, or (ii) terminate the
Lease as provided in Section 21.2 and assign all of its rights to any
insurance proceeds required under this Lease to Landlord.
(b) DESTRUCTION NOT RENDERING PROPERTY UNSUITABLE FOR ITS PRIMARY
USE. If during the term, the Property is totally or partially destroyed
from a risk covered by the insurance described in Article 15, but the Real
Property is not thereby rendered Unsuitable For Its Primary Intended Use,
Tenant shall diligently restore the Property to substantially the same
condition as existed immediately before the damage or destruction;
PROVIDED, HOWEVER, Tenant shall not be required to restore certain Tangible
Personal Property and/or any Tenant Improvements if failure to do so does
not adversely affect the amount of Rent payable hereunder or the Primary
Intended Use in substantially the same manner immediately prior to such
damage or destruction. Such damage or destruction shall not terminate this
Lease; PROVIDED FURTHER, HOWEVER, if Tenant cannot within eighteen
42
(18) months obtain all necessary governmental approvals, including building
permits, licenses, conditional use permits and any certificates of need,
after diligent efforts to do so in order to be able to perform all required
repair and restoration work and to operate the Property for its Primary
Intended Use in substantially the same manner immediately prior to such
damage or destruction, Tenant may terminate the Lease.
15.12 RECONSTRUCTION NOT COVERED BY INSURANCE. If during the Term,
the Property is totally or materially destroyed from a risk not covered by the
insurance described in Article 15, whether or not such damage or destruction
renders the Property Unsuitable For Its Primary Intended Use, Tenant shall
restore the Property to substantially the same condition as existed immediately
before the damage or destruction. Tenant shall have the right to use proceeds
from the Capital Replacement Fund to perform such work, subject to the
conditions set forth in Section 12.4 hereof.
15.13 NO ABATEMENT OF RENT. This Lease shall remain in full force
and effect and Tenant's obligation to make rental payments and to pay all other
charges required by this Lease shall remain unabated during the period required
for repair and restoration.
15.14 WAIVER. Tenant hereby waives any statutory rights of
termination which may arise by reason of any damage or destruction of the
Property which Landlord or Tenant is obligated to restore or may restore under
any of the provisions of this Lease.
15.15 DAMAGE NEAR END OF TERM. Notwithstanding any other provision
to the contrary in this Article 15, if damage to or destruction of the Property
occurs during the last twenty-four (24) months of the Lease Term, and if such
damage or destruction cannot reasonably be expected by Landlord to be fully
repaired or restored prior to the date that is twelve (12) months prior to the
end of the then-applicable Term, then either Landlord or Tenant shall have the
right to terminate the Lease on thirty (30) days' prior notice to the other by
giving notice thereof within sixty (60) days after the date of such damage or
destruction. Upon any such termination, Landlord shall be entitled to retain
all insurance proceeds, grossed up by Tenant to account for the deductible or
any self-insured retention. If Landlord shall give Tenant a notice under this
Section 15.15 that it seeks to terminate this Lease at a time when Tenant has a
remaining Extended Term, then such termination notice shall be of no effect if
Tenant shall exercise its rights to extend the Term not later than the earlier
of the time required by Section 3.2 or thirty (30) days after Landlord's notice
given under this Section 15.15.
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ARTICLE 16
CONDEMNATION
16.1 TOTAL TAKING. If at any time during the Term the Property is
totally and permanently taken by Condemnation, this Lease shall terminate on the
Date of Taking and Tenant shall promptly pay all outstanding rent and other
charges through the date of termination.
16.2 PARTIAL TAKING. If a portion of the Property is taken by
Condemnation, this Lease shall remain in effect if the Property is not thereby
rendered Unsuitable For Its Primary Intended Use, but if the Property is thereby
rendered Unsuitable For Its Primary Intended Use, this Lease shall terminate on
the Date of Taking.
16.3 RESTORATION. If there is a partial taking of the Property and
this Lease remains in full force and effect pursuant to Section 16.2, Landlord
at its cost shall accomplish all necessary restoration up to but not exceeding
the amount of the Award payable to Landlord, as provided herein. If Tenant
receives an Award under Section 16.4, Tenant shall repair or restore any Tenant
Improvements up to but not exceeding the amount of the Award payable to Tenant
therefor.
16.4 AWARD-DISTRIBUTION. The entire Award shall belong to and be
paid to Landlord, except that, subject to the rights of the Facility Mortgagee,
Tenant shall be entitled to receive from the Award, if and to the extent such
Award specifically includes such items, a sum attributable to the value, if any,
of: (i) the loss of Tenant's business during the remaining term, (ii) any Tenant
Improvements and (iii) the leasehold interest of Tenant under this Lease.
16.5 TEMPORARY TAKING. The taking of the Property, or any part
thereof, by military or other public authority shall constitute a taking by
Condemnation only when the use and occupancy by the taking authority has
continued for longer than six (6) months. During any such six (6) month period,
which shall be a temporary taking, all the provisions of this Lease shall remain
in full force and effect with no abatement of rent payable by Tenant hereunder.
In the event of any such temporary taking, the entire amount of any such Award
made for such temporary taking allocable to the Lease Term, whether paid by way
of damages, rent or otherwise, shall be paid to Tenant.
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ARTICLE 17
EVENTS OF DEFAULT
17.1 EVENTS OF DEFAULT. If any one or more of the following events
(individually, an "Event of Default") shall occur:
(a) if Tenant shall fail to make payment of the Rent payable by
Tenant under this Lease when the same becomes due and payable and such
failure is not cured by Tenant within a period of ten (10) days after
receipt by Tenant of notice thereof from Landlord; PROVIDED, HOWEVER,
Tenant is only entitled to three (3) such notices per twelve (12) month
period and that such notice shall be in lieu of and not in addition to any
notice required under applicable law;
(b) if Tenant shall fail to observe or perform any material term,
covenant or condition of this Lease and such failure is not cured by Tenant
within a period of thirty (30) days after receipt by Tenant of notice
thereof from Landlord, unless such failure cannot with due diligence be
cured within a period of thirty (30) days, in which case such failure shall
not be deemed to continue if Tenant proceeds promptly and with due
diligence to cure the failure and diligently completes the curing thereof
within one hundred twenty (120) days of receipt of notice from Landlord of
the default; PROVIDED, HOWEVER, that such notice shall be in lieu of and
not in addition to any notice required under applicable law; PROVIDED
FURTHER, HOWEVER, that the cure period shall not extend beyond thirty
(30) days as otherwise provided by this Section 17.1(b) if the facts or
circumstances giving rise to the default are creating a further harm to
Landlord or the Property and Landlord makes a good faith determination that
Tenant is not undertaking remedial steps that Landlord would cause to be
taken if this Lease were then to terminate;
(c) if Tenant shall:
(i) admit in writing its inability to pay its debts as they
become due,
(ii) file a petition in bankruptcy or a petition to take
advantage of any insolvency act,
(iii) make an assignment for the benefit of its creditors,
(iv) be unable to pay its debts as they mature,
(v) consent to the appointment of a receiver of itself or of
the whole or any substantial part of its property, or
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(vi) file a petition or answer seeking reorganization or
arrangement under the Federal bankruptcy laws or any other applicable
law or statute of the United States of America or any state thereof;
(d) if Tenant shall, on a petition in bankruptcy filed against it,
be adjudicated as bankrupt or a court of competent jurisdiction shall enter
an order or decree appointing, without the consent of Tenant, a receiver of
Tenant or of the whole or substantially all of its property, or approving a
petition filed against it seeking reorganization or arrangement of Tenant
under the federal bankruptcy laws or any other applicable law or statute of
the United States of America or any state thereof, and such judgment, order
or decree shall not be vacated or set aside or stayed within sixty
(60) days from the date of the entry thereof;
(e) if Tenant shall be liquidated or dissolved, or shall begin
proceedings toward such liquidation or dissolution;
(f) if the estate or interest of Tenant in the Property or any
part thereof shall be levied upon or attached in any proceeding and the
same shall not be vacated or discharged within the later of ninety
(90) days after commencement thereof or thirty (30) days after receipt by
Tenant of notice thereof from Landlord (unless Tenant shall be contesting
such lien or attachment in accordance with Article 14); PROVIDED, HOWEVER,
that such notice shall be in lieu of and not in addition to any notice
required under applicable law;
(g) if, except as a result of damage, destruction or a partial or
complete Condemnation or other Unavoidable Delays, Tenant voluntarily
ceases operations on the Property;
(h) any representation or warranty made by Tenant herein or in any
certificate, demand or request made pursuant hereto proves to be incorrect,
now or hereafter, in any material respect; or
(i) an "Event of Default" (as defined in such lease) by Tenant or
any Affiliate of Tenant in any other lease by and between such party and
Landlord or any Affiliate of Landlord, or an "Event of Default" under the
Pledge Agreement;
THEN, Tenant shall be declared to have breached this Lease. Landlord
may terminate this Lease by giving Tenant not less than ten (10) days' notice
(or no notice for clauses (c), (d), (e), (f) and (g)) of such termination and
upon the
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expiration of the time fixed in such notice, the Term shall terminate and all
rights of Tenant under this Lease shall cease. Landlord shall have all
rights at law and in equity available to Landlord as a result of Tenant's
breach of this Lease.
17.2 PAYMENT OF COSTS. Tenant shall, to the extent permitted by
law, pay as Additional Charges all costs and expenses incurred by or on behalf
of Landlord, including reasonable attorneys' fees and expenses, as a result of
any Event of Default hereunder.
17.3 CERTAIN REMEDIES. If an Event of Default shall have occurred
and be continuing, whether or not this Lease has been terminated pursuant to
Section 17.1, Tenant shall, to the extent permitted by law, if required by
Landlord to do so, immediately surrender to Landlord the Property pursuant to
the provisions of Section 17.1 and quit the same and Landlord may enter upon and
repossess the Property by reasonable force, summary proceedings, ejectment or
otherwise, and may remove Tenant and all other Persons and any and all Tenant's
Personal Property from the Property subject to any requirement of law.
17.4 DAMAGES. None of the following events shall relieve Tenant of
its liability and obligations hereunder, all of which shall survive any such
termination, repossession or reletting: (a) the termination of this Lease
pursuant to Section 17.1, (b) the repossession of the Property, (c) the failure
of Landlord, notwithstanding reasonable good faith efforts, to relet the
Property, (d) the reletting of all or any portion thereof, nor (e) the failure
of Landlord to collect or receive any rentals due upon any such reletting. In
the event of any such termination, Tenant shall forthwith pay to Landlord all
Rent due and payable with respect to the Property to, and including, the date of
such termination. Thereafter, Tenant shall forthwith pay to Landlord, at
Landlord's option, as and for liquidated and agreed current damages for Tenant's
default, and not as a penalty, either:
(a) the sum of:
(i) the worth at the time of award of the unpaid Rent which
had been earned at the time of termination,
(ii) the worth at the time of award of the amount by which
the unpaid Rent which would have been earned after termination until
the time of award exceeds the amount of such unpaid Rent that Tenant
proves could have been reasonably avoided,
(iii) the worth at the time of award of the amount by which
the unpaid Rent for the balance of the Term after the time of award
exceeds the amount of such unpaid Rent that Tenant proves could be
reasonably avoided, and
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(iv) any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform
its obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom.
In making the above determinations, the "worth at the time of the
award" in subsections (i) and (iii) shall be determined by the court having
jurisdiction thereof including interest at the Overdue Rate and the "worth at
the time of the award" in subsection (iii) shall be determined by the court
having jurisdiction thereof using a discount rate equal to the discount rate of
the Federal Reserve Bank of San Francisco at the time of the award plus one
percent (1%) and the Percentage Rent shall be deemed to be the same as for the
then-current Fiscal Year or, if not determinable, the immediately preceding
Fiscal Year, for the remainder of the Term, or such other amount as either party
shall prove reasonably could have been earned during the remainder of the Term
or any portion thereof; or
(b) without termination of Tenant's right to possession of the
Property, each installment of said Rent and other sums payable by Tenant to
Landlord under the Lease as the same becomes due and payable, which Rent and
other sums shall bear interest at the Overdue Rate from the date when due until
paid, and Landlord may enforce, by action or otherwise, any other term or
covenant of this Lease.
17.5 ADDITIONAL REMEDIES. Landlord has all other remedies that may
be available under applicable law.
17.6 APPOINTMENT OF RECEIVER. Upon the occurrence of an Event of
Default, and upon filing of a suit or other commencement of judicial proceedings
to enforce the rights of Landlord hereunder, Landlord shall be entitled, as a
matter or right, to the appointment of a receiver or receivers acceptable to
Landlord of the Property and of the revenues, earnings, income, products and
profits thereof, pending such proceedings, with such powers as the court making
such appointment shall confer.
17.7 WAIVER. If this Lease is terminated pursuant to Section 17.1,
Tenant waives, to the extent permitted by applicable law (a) any right of
redemption, re-entry or repossession and (b) any right to a trial by jury.
17.8 APPLICATION OF FUNDS. Any payments received by Landlord under
any of the provisions of this Lease during the existence or continuance of any
Event of Default (and such payment is made to Landlord rather than Tenant due to
the existence of an Event of Default) shall be applied to Tenant's obligations
in the order which Landlord may determine or as may be prescribed by the laws of
the State.
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17.9 IMPOUNDS. Landlord shall have the right during the
continuance of an Event of Default to require Tenant to pay to Landlord an
additional monthly sum (each an "Impound Payment") sufficient to pay the Impound
Charges (as hereinafter defined) as they become due. As used herein, "Impound
Charges" shall mean real estate taxes on the Property or payments in lieu
thereof and premiums on any insurance required by this Lease. Landlord shall
determine the amount of the Impound Charges and of each Impound Payment. The
Impound Payments shall be held in a separate account and shall not be commingled
with other funds of Landlord and interest thereon shall be held for the account
of Tenant. Landlord shall apply the Impound Payments to the payment of the
Impound Charges in such order or priority as Landlord shall determine or as
required by law. If at any time the Impound Payments theretofore paid to
Landlord shall be insufficient for the payment of the Impound Charges, Tenant,
within ten (10) days after Landlord's demand therefor, shall pay the amount of
the deficiency to Landlord.
ARTICLE 18
LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT
If Tenant shall fail to make any payment or to perform any act
required to be made or performed under this Lease, and to cure the same within
the relevant time periods provided in Article 17, Landlord, after notice to and
demand upon Tenant, and without waiving or releasing any obligation or default,
may (but shall be under no obligation to) at any time thereafter make such
payment or perform such act for the account and at the expense of Tenant.
Landlord may, to the extent permitted by law, enter upon the Property for such
purpose and take all such action thereon as, in Landlord's opinion, may be
necessary or appropriate therefor. No such entry shall be deemed an eviction of
Tenant. All sums so paid by Landlord and all costs and expenses (including
reasonable attorneys' fees and expenses, to the extent permitted by law) so
incurred, together with a late charge thereon at the Overdue Rate from the date
on which such sums or expenses are paid or incurred by Landlord, shall be paid
by Tenant to Landlord on demand. The obligations of Tenant and rights of
Landlord contained in this Article 18 shall survive the expiration or earlier
termination of this Lease.
ARTICLE 19
LEGAL REQUIREMENTS
Subject to Article 14 regarding permitted contests, Tenant, at its
expense, shall promptly (a) comply with all Legal Requirements and Insurance
Requirements in respect of the use, operation, maintenance, repair and
restoration of the Property, whether or not compliance therewith shall require
structural changes in any of the Improvements or interfere with the use and
enjoyment of the Property; and (b) procure, maintain and comply with all
licenses and other authorizations required for any use
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of the Property then being made, and for the proper erection, installation,
operation and maintenance of the Property or any party thereof.
ARTICLE 20
HOLDING OVER
If Tenant shall for any reason remain in possession of the Property
after the expiration of the Term or earlier termination of the Term hereof, such
possession shall be deemed to be a tenant at sufferance during which time Tenant
shall pay as rental each month, 125% of the aggregate of (i) the aggregate Base
Rent and monthly portion of the Percentage Rent payable with respect to that
month in the last Fiscal Year; (ii) all Additional Charges accruing during the
month; and (iii) all other sums, if any, payable by Tenant pursuant to the
provisions of this Lease with respect to the Property. During such period of
month-to-month tenancy, Tenant shall be obligated to perform and observe all of
the terms, covenants and conditions of this Lease, but shall have no rights
hereunder other than the right, to the extent given by law to month-to-month
tenancies, to continue its occupancy and use of the Property. Nothing contained
herein shall constitute the consent, express or implied, of Landlord to the
holding over of Tenant after the expiration or earlier termination of this
Lease.
ARTICLE 21
RISK OF LOSS
During the Lease Term, the risk of loss or of decrease in the
enjoyment and beneficial use of the Property as a consequence of the damage or
destruction thereof by fire, flood, the elements, casualties, thefts, riots,
wars or otherwise, or in consequence of foreclosures, attachments, levies or
executions (other than by Landlord and those claiming from, through or under
Landlord) is assumed by Tenant. In the absence of gross negligence, willful
misconduct or breach of this Lease by Landlord pursuant to Section 28.2,
Landlord shall in no event be answerable or accountable therefor nor shall any
of the events mentioned in this Article 21 entitle Tenant to any abatement of
Rent.
ARTICLE 22
INDEMNIFICATION
22.1 TENANT'S INDEMNIFICATION OF LANDLORD. Except as otherwise
provided in Section 10.7 and notwithstanding the existence of any insurance
provided for in Article 15, and without regard to the policy limits of any such
insurance, Tenant will protect, indemnify, save harmless and defend Landlord,
the Company and Affiliates of the Company from and against all liabilities,
obligations, claims, actual or consequential damages, penalties, causes of
action, costs and expenses
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(including reasonable attorneys' fees and expenses), to the extent permitted
by law, imposed upon or incurred by or asserted against Landlord, the Company
or Affiliates of the Company by reason of:
(a) any accident, injury to or death of persons or loss of or
damage to property occurring on or about the Property or adjoining
property, including, but not limited to, any accident, injury to or death
of Person or loss of or damage to property resulting from golf balls, golf
clubs, golf shoes, lawn mowers or other equipment, pesticides, fertilizers
or other substances, golf carts, tractors or other motorized vehicles
present on or adjacent to the Property;
(b) any use, misuse, non-use, condition, maintenance or repair of
the Property;
(c) any Impositions (which are the obligations of Tenant to pay
pursuant to the applicable provisions of this Lease);
(d) any failure on the part of Tenant to perform or comply with
any of the terms of this Lease;
(e) any so-called "dram shop" liability associated with the sale
and/or consumption of alcohol at the Property;
(f) the non-performance of any of the terms and provisions of any
and all existing and future subleases of the Property to be performed by
the landlord (Tenant) thereunder;
(g) the negligence or alleged negligence of Landlord with respect
to the Property; or
(h) any liability Landlord may incur or suffer as a result of any
permitted contest by Tenant pursuant to Article 14.
22.2 LANDLORD'S INDEMNIFICATION OF TENANT. Landlord shall protect,
indemnify, save harmless and defend Tenant from and against all liabilities,
obligations, claims, actual or consequential damages, penalties, causes of
action, costs and expenses (including reasonable attorneys' fees) imposed upon
or incurred by or asserted against Tenant as a result of Landlord's active,
gross negligence or willful misconduct.
22.3 MECHANICS OF INDEMNIFICATION. As soon as reasonably
practicable after receipt by the indemnified party of notice of any liability or
claim incurred by or asserted against the indemnified party that is subject to
indemnification under this Article 22, the indemnified party shall give notice
thereof
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to the indemnifying party. The indemnified party may at its option demand
indemnity under this Article 22 as soon as a claim has been threatened by a
third party, regardless of whether an actual loss has been suffered, so long
as the indemnified party shall in good faith determine that such claim is not
frivolous and that the indemnified party may be liable for, or otherwise
incur, a loss as a result thereof and shall give notice of such determination
to the indemnifying party. The indemnified party shall permit the
indemnifying party, at its option and expense, to assume the defense of any
such claim by counsel selected by the indemnifying party and reasonably
satisfactory to the indemnified party, and to settle or otherwise dispose of
the same; PROVIDED, HOWEVER, that the indemnified party may at all times
participate in such defense at its expense, and PROVIDED FURTHER, HOWEVER,
that the indemnifying party shall not, in defense of any such claim, except
with the prior written consent of the indemnified party, consent to the entry
of any judgment or to enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff in
question to the indemnified party and its affiliates a release of all
liabilities in respect of such claims, or that does not result only in the
payment of money damages by the indemnifying party. If the indemnifying
party shall fail to undertake such defense within thirty (30) days after such
notice, or within such shorter time as may be reasonable under the
circumstances, then the indemnified party shall have the right to undertake
the defense, compromise or settlement of such liability or claim on behalf of
and for the account of the indemnifying party.
22.4 SURVIVAL OF INDEMNIFICATION OBLIGATIONS; AVAILABLE INSURANCE
PROCEEDS. Tenant's or Landlord's liability for a breach of the provisions of
this Article 22 arising during the term hereof shall survive any termination of
this Lease. Notwithstanding anything herein to the contrary, each party agrees
to look first to the available proceeds from any insurance it carries in
connection with the Property prior to seeking indemnification or otherwise
seeking to recover any amounts to compensate a party for its damages and then to
seek indemnification only to the extent of any loss not covered by their
available insurance proceeds.
ARTICLE 23
SUBLETTING AND ASSIGNMENT
23.1 PROHIBITION AGAINST ASSIGNMENT. Tenant shall not, without the
prior written consent of Landlord, which consent Landlord may withhold in its
sole discretion, assign, mortgage, pledge, hypothecate, encumber or otherwise
transfer (except to an Affiliate of Tenant or a Permitted Assignee) the Lease or
any interest therein, all or any part of the Property, whether voluntarily,
involuntarily or by operation of law. For purposes
52
of this Article 23, a Change in Control of the Tenant shall constitute an
assignment of this Lease.
23.2 SUBLEASES.
(a) PERMITTED SUBLEASES. Tenant shall not, without the prior
written consent of Landlord, which consent Landlord may withhold in its
sole discretion, further sublease or license portions of the Property to
third parties, including concessionaires or licensees. Without limiting
the foregoing, Tenant's proposed sublease or any of the following transfers
shall require Landlord's prior written consent, which consent Landlord may
withhold in its sole discretion:
(i) sublease or license to operate golf courses;
(ii) sublease or license to operate golf professionals'
shops;
(iii) sublease or license to operate golf driving ranges;
(iv) sublease or license to provide golf lessons by other
than a resident professional;
(v) sublease or license to operate restaurants;
(vi) sublease or license to operate bars;
(vii) sublease or license to operate spa or health clubs; and
(viii) sublease or license to operate any other portions (but
not the entirety) of the Property customarily associated with or
incidental to the operation of the golf course.
(b) TERMS OF SUBLEASE. Each sublease with respect to the Property
shall be subject and subordinate to the provisions of this Lease. No
sublease made as permitted by this Section 23.2 shall affect or reduce any
of the obligations of Tenant hereunder, and all such obligations shall
continue in full force and effect as if no sublease had been made. No
sublease shall impose any additional obligations on Landlord under this
Lease.
(c) COPIES. Tenant shall, not less than sixty (60) days prior to
any proposed assignment or sublease, deliver to Landlord written notice of
its intent to assign or sublease, which notice shall identify the intended
assignee or sublessee by name and address, shall specify the effective date
of the intended assignment or sublease, and
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shall be accompanied by an exact copy of the proposed assignment or
sublease. Tenant shall provide Landlord with such additional information
or documents reasonably requested by Landlord with respect to the proposed
transaction and the proposed assignee or subtenant, and an opportunity to
meet and interview the proposed assignee or subtenant, if requested.
(d) ASSIGNMENT OF RIGHTS IN SUBLEASES. As security for
performance of its obligations under this Lease, Tenant hereby grants,
conveys and assigns to Landlord all right, title and interest of Tenant in
and to all subleases now in existence or hereinafter entered into for any
or all of the Property, and all extensions, modifications and renewals
thereof and all rents, issues and profits therefrom. Landlord hereby
grants to Tenant a license to collect and enjoy all rents and other sums of
money payable under any sublease of any of the Property; provided, however,
that Landlord shall have the absolute right at any time after the
occurrence and continuance of an Event of Default upon notice to Tenant and
any subtenants to revoke said license and to collect such rents and sums of
money and to retain the same. Tenant shall not (i) consent to, cause or
allow any material modification or alteration of any of the terms,
conditions or covenants of any of the subleases or the termination thereof,
without the prior written approval of Landlord nor (ii) accept any rents
(other than customary security deposits) more than ninety (90) days in
advance of the accrual thereof nor permit anything to be done, the doing of
which, nor omit or refrain from doing anything, the omission of which, will
or could be a breach of or default in the terms of any of the subleases.
(e) LICENSES, ETC. For purposes of this Section 23.2, subleases
shall be deemed to include any licenses, concession arrangements,
management contracts (except to an Affiliate of the Lessee) or other
arrangements relating to the possession or use of all or any part of the
Property.
23.3 TRANSFERS. No assignment or sublease shall in any way impair
the continuing primary liability of Tenant hereunder, as a principal and not as
a surety or guarantor, and no consent to any assignment or sublease in a
particular instance shall be deemed to be a waiver of the prohibition set forth
in Section 23.1. Any assignment shall be solely of Tenant's entire interest in
this Lease. Any assignment or other transfer of all or any portion of Tenant's
interest in the Lease in contravention of the terms of this Lease shall be
voidable at Landlord's option. Anything in this Lease to the contrary
notwithstanding, Tenant shall not sublet all or any portion of the Property or
enter into any other agreement which has the effect of reducing the Percentage
Rent payable to Landlord hereunder.
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23.4 REIT LIMITATIONS. Anything contained in this Lease to the
contrary notwithstanding, Tenant shall not (i) sublet or assign or enter into
other arrangements such that the amounts to be paid by the sublessee or assignee
thereunder would be based, in whole or in part, on the income or profits derived
by the business activities of the sublessee or assignee; (ii) sublet or assign
the Property or this Lease to any person that Landlord owns, directly or
indirectly (by applying constructive ownership rules set forth in Section
856(d)(5) of the Code), a 10% or greater interest; or (iii) sublet or assign the
Property or this Lease in any other manner or otherwise derive any income which
could cause any portion of the amounts received by Landlord pursuant to this
Lease or any sublease to fail to qualify as "rents from real property" within
the meaning of Section 856(d) of the Code, or which could cause any other income
received by Landlord to fail to qualify as income described in Section 856(c)(2)
of the Code. The requirements of this Section 23.4 shall likewise apply to any
further subleasing by any subtenant.
23.5 RIGHT OF FIRST OFFER OF LANDLORD TO ACQUIRE LEASEHOLD. In
addition to Landlord's rights in Section 23.1, Landlord or its designee shall
have, for a period of sixty (60) days following receipt of the written notice of
Tenant's intent to assign its interest in the Lease to a third party
unaffiliated with Tenant (and in which management of the Tenant shall have no
continuing management or ownership interest), the right to elect to purchase the
leasehold interest on the terms and conditions at which Tenant proposes to sell
or assign its interest. If Landlord or its designee elects not to purchase such
interest of Tenant, then Tenant shall be free to sell its interest to a third
party, subject to Landlord's prior written consent as provided in Section 23.1.
However, if (i) the price at which Tenant intends to sell its interest is
reduced by five percent (5%) or more, or (ii) the assignment to the third party
is not completed within one hundred eighty (180) days of Landlord's receipt of
written notice of Tenant's intention to assign its interest in the Lease, then
Tenant shall again offer Landlord the right to acquire its interest; provided,
however, that in the case of a change in price, Landlord shall have only fifteen
(15) days to accept such revised offer.
23.6 BANKRUPTCY LIMITATIONS.
(a) Tenant acknowledges that this Lease is a lease of
nonresidential real property and therefore agrees that Tenant, as the debtor in
possession, or the trustee for Tenant (collectively, the "Trustee") in any
proceeding under Title 11 of the United States Bankruptcy Code relating to
Bankruptcy, as amended (the "Bankruptcy Code"), shall not seek or request any
extension of time to assume or reject this Lease or to perform any obligations
of this Lease which arise from or after the order of relief.
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(b) If the Trustee proposes to assume or to assign this Lease or
sublet the Property (or any portion thereof) to any Person which shall have made
a bona fide offer to accept an assignment of this Lease or a subletting on terms
acceptable to the Trustee, the Trustee shall give Landlord, and lessors and
mortgagees of Landlord of which Tenant has notice, written notice setting forth
the name and address of such person and the terms and conditions of such offer,
no later than twenty (20) days after receipt of such offer, but in any event no
later than ten (10) days prior to the date on which the Trustee makes
application to the bankruptcy court for authority and approval to enter into
such assumption and assignment or subletting. Landlord shall have the prior
right and option, to be exercised by written notice to the Trustee given at any
time prior to the effective date of such proposed assignment or subletting, to
receive and assignment of this Lease or subletting of the Property to Landlord
or Landlord's designee upon the same terms and conditions and for the same
consideration, if any, as the bona fide offer made by such person, less any
brokerage commissions which may be payable out of the consideration to be paid
by such person for the assignment or subletting of this Lease.
(c) The Trustee shall have the right to assume Tenant's rights and
obligations under this Lease only if the Trustee: (a) promptly cures any Event
of Default then existing or provides adequate assurance that the Trustee will
promptly compensate Landlord for any actual pecuniary loss incurred by Landlord
as a result of Tenant's default under this Lease; and (c) provides adequate
assurance of future performance under this Lease. Adequate assurance of future
performance by the proposed assignee shall include, as a minimum, that: (i) any
proposed assignee of this Lease shall provide to Landlord an audited financial
statement, dated no later than six (6) months prior to the effective date of
such proposed assignment or sublease, with no material change therein as of the
effective date, which financial statement shall show the proposed assignee to
have a net worth reasonably satisfactory to Landlord or, in the alternative, the
proposed assignee shall provide a guarantor of such proposed assignee's
obligations under this Lease, which guarantor shall provide an audited financial
statement meeting the requirements of (i) above and shall execute and deliver to
Landlord a guaranty agreement in form and substance acceptable to Landlord; and
(ii) any proposed assignee shall grant to Landlord a security interest in favor
of Landlord in all furniture, fixtures, and other personal property to be used
by such proposed assignee in the Property. All payments required of Tenant
under this Lease, whether or not expressly denominated as such in this Lease,
shall constitute rent for the purposes of Title 11 of the Bankruptcy Code.
(d) The parties agree that for the purposes of the Bankruptcy code
relating to (a) the obligation of the Trustee to
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provide adequate assurance that the Trustee will "promptly" cure defaults and
compensate Landlord for actual pecuniary loss, the word "promptly" shall mean
that cure of defaults and compensation will occur no later than sixty (60)
days following the filing of any motion or application to assume this Lease;
and (b) the obligation of the Trustee to compensate or to provide adequate
assurance that the Trustee will promptly compensate Landlord for "actual
pecuniary loss", (the term "actual pecuniary loss" shall mean, in addition to
any other provisions contained herein relating to Landlord's damages upon
default obligations of Tenant to pay money under this Lease and all
attorneys' fees and related costs of Landlord incurred in connection with any
default of Tenant in connection with Tenant's bankruptcy proceedings).
(e) Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code shall be deemed, without further act or
deed, to have assumed all of the obligations arising under this Lease and each
of the conditions and provisions hereof on and after the date of such
assignment. Any such assignee shall, upon the request of Landlord, forthwith
execute and deliver to Landlord an instrument, in form and substance acceptable
to Landlord, confirming such assumption.
23.7 MANAGEMENT AGREEMENT. Tenant shall not enter into any
management agreement that provides for the management and operation of the
entire Property by an unaffiliated third party without the prior written consent
of Landlord.
ARTICLE 24
OFFICER'S CERTIFICATES AND OTHER STATEMENTS
24.1 OFFICER'S CERTIFICATES. At any time, and from time to time
upon Tenant's receipt of not less than ten (10) days' prior written request by
Landlord, Tenant will furnish to Landlord an Officer's Certificate certifying
that:
(a) this Lease is unmodified and in full force and effect (or that
this Lease is in full force and effect as modified and setting forth the
modifications);
(b) the dates to which the Rent has been paid;
(c) whether or not to the best knowledge of Tenant, Landlord is in
default in the performance of any covenant, agreement or condition
contained in this Lease and, if so, specifying each such default of which
Tenant may have knowledge;
(d) that, except as otherwise specified, there are no proceedings
pending or, to the knowledge of the signatory, threatened, against Tenant
before or by any court or administrative agency which, if adversely
decided, would
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materially and adversely affect the financial condition and operations
of Tenant; and
(e) responding to such other questions or statements of fact as
Landlord shall reasonably request.
Tenant's failure to deliver such Officer's Certificate within such
time shall constitute an acknowledgement by Tenant that this Lease is unmodified
and in full force and effect except as may be represented to the contrary by
Landlord, Landlord is not in default in the performance of any covenant,
agreement or condition contained in this Lease and the other matters set forth
in such request, if any, are true and correct. Any such Officer's Certificate
furnished pursuant to this Section 24.1 may be relied upon by Landlord and any
prospective lender or purchaser.
24.2 ENVIRONMENTAL STATEMENTS. Immediately upon Tenant's learning,
or having reasonable cause to believe, that any Hazardous Material in a quantity
sufficient to require remediation or reporting under applicable law is located
in, on or under the Property or any adjacent property, Tenant shall notify
Landlord in writing of (a) the existence of any such Hazardous Material; (b) any
enforcement, cleanup, removal, or other governmental or regulatory action
instituted, completed or threatened; (c) any claim made or threatened by any
Person against Tenant or the Property relating to damage, contribution, cost
recovery, compensation, loss, or injury resulting from or claimed to result from
any Hazardous Material; and (d) any reports made to any federal, state or local
environmental agency arising out of or in connection with any Hazardous Material
in or removed from the Property, including any complaints, notices, warnings or
asserted violations in connection therewith.
ARTICLE 25
LANDLORD MORTGAGES
25.1 LANDLORD MAY GRANT LIENS. Subject to Section 25.2, without
the consent of Tenant, Landlord may, from time to time, directly or indirectly,
create or otherwise cause to exist any Landlord's Encumbrance upon the Property,
or any portion thereof or interest therein, whether to secure any borrowing or
other means of financing or refinancing. This Lease is and at all times shall
be subject and subordinate to any ground or underlying leases, mortgages, trust
deeds or like encumbrances, which may now or hereafter affect the Property and
to all renewals, modifications, consolidations, replacements and extensions of
any such lease, mortgage, trust deed or like encumbrance. This clause shall be
self-operative and no further instrument of subordination shall be required by
any ground or underlying lessor or by any mortgagee or beneficiary, affecting
any lease or the Property. In confirmation of such
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subordination, Tenant shall execute promptly any certificate that Landlord
may request for such purposes.
25.2 TENANT'S NON-DISTURBANCE RIGHTS. So long as Tenant shall pay
all Rent as the same becomes due and shall fully comply with all of the terms of
this Lease and fully perform its obligations hereunder, none of Tenant's rights
under this Lease shall be disturbed by the holder of any Landlord's Encumbrance
which is created or otherwise comes into existence after the Commencement Date.
25.3 FACILITY MORTGAGE PROTECTION. Tenant agrees that the holder
of any Landlord Encumbrance shall have no duty, liability or obligation to
perform any of the obligations of Landlord under this Lease, but that in the
event of Landlord's default with respect to any such obligation, Tenant will
give any such holder whose name and address have been furnished Tenant in
writing for such purpose notice of Landlord's default and allow such holder
thirty (30) days following receipt of such notice for the cure of said default
before invoking any remedies Tenant may have by reason thereof.
ARTICLE 26
SALE OF FEE INTEREST
26.1 RIGHT OF FIRST OFFER TO PURCHASE. If Landlord intends to sell
the Property during the Lease Term, and provided no Event of Default then
exists, Tenant shall have a right of first offer to purchase the Property
("Tenant's Right of First Offer to Purchase") on the terms and conditions at
which Landlord proposes to sell the Property to a third party. Landlord shall
give Tenant written notice of its intent to sell and shall indicate the terms
and conditions (including the sale price) upon which Landlord intends to sell
the Property to a third party. Tenant shall thereafter have sixty (60) days to
elect in writing to purchase the Property and execute a Purchase and Sale
Agreement with respect thereto and shall have an additional fifty (50) days to
close on the acquisition of the Property on the terms and conditions set forth
in the notice provided by Landlord to Tenant; provided that prior to the
execution of a binding purchase and sale agreement, Landlord shall retain the
right to elect not to sell the Property. If Tenant does not elect to purchase
the Property, then Landlord shall be free to sell the Property to a third party.
However, if the price at which Landlord intends to sell the Property to a third
party is less than 95% of the price set forth in the notice provided by Landlord
to Tenant, then Landlord shall again offer Tenant the right to acquire the
Property upon the same terms and conditions, provided that Tenant shall have
only thirty (30) days thereafter to complete the acquisition at such price,
terms and conditions.
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26.2 CONVEYANCE BY LANDLORD. If Landlord shall convey the Property
in accordance with the terms hereof other than as security for a debt, Landlord
shall, upon the written assumption by the transferee of the Property of all
liabilities and obligations of the Lease be released from all future liabilities
and obligations under this Lease arising or accruing from and after the date of
such conveyance or other transfer as to the Property. All such future
liabilities and obligations shall thereupon be binding upon the new owner.
ARTICLE 27
ARBITRATION
27.1 ARBITRATION. In each case specified in this Lease in which it
shall become necessary to resort to arbitration, such arbitration shall be
determined as provided in this Section 27.1. The party desiring such
arbitration shall give notice to that effect to the other party, and an
arbitrator shall be selected by mutual agreement of the parties, or if they
cannot agree within thirty (30) days of such notice, by appointment made by the
American Arbitration Association ("AAA") from among the members of its panels
who are qualified and who have experience in resolving matters of a nature
similar to the matter to be resolved by arbitration.
27.2 ARBITRATION PROCEDURES. In any arbitration commenced pursuant
to Section 27.1 a single arbitrator shall be designated and shall resolve the
dispute. The arbitrator's decision shall be binding on all parties and shall
not be subject to further review or appeal except as otherwise allowed by
applicable law. Upon the failure of either party (the "non-complying party") to
comply with his decision, the arbitrator shall be empowered, at the request of
the other party, to order such compliance by the non-complying party and to
supervise or arrange for the supervision of the non-complying party. To the
maximum extent practicable, the arbitrator and the parties, and the AAA if
applicable, shall take any action necessary to insure that the arbitration shall
be concluded within ninety (90) days of the filing of such dispute. The fees
and expenses of the arbitrator shall be shared equally by Landlord and Tenant
except as otherwise specified above in this Section 27.2. Unless otherwise
agreed in writing by the parties or required by the arbitrator or AAA, if
applicable, arbitration proceedings hereunder shall be conducted in the State.
Notwithstanding formal rules of evidence, each party may submit such evidence as
each party deems appropriate to support its position and the arbitrator shall
have access to and right to examine all books and records of Landlord and Tenant
regarding the Property during the arbitration.
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ARTICLE 28
MISCELLANEOUS
28.1 LANDLORD'S RIGHT TO INSPECT. Tenant shall permit Landlord and
its authorized representatives to inspect the Property during usual business
hours subject to any security, health, safety or confidentiality requirements of
Tenant or any governmental agency or insurance requirement relating to the
Property, or imposed by law or applicable regulations. Landlord shall indemnify
Tenant for all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against Tenant by
reason of Landlord's inspection pursuant to this Section 28.1.
28.2 BREACH BY LANDLORD. It shall be a breach of this Lease if
Landlord shall fail to observe or perform any material term, covenant or
condition of this Lease on its part to be performed and such failure shall
continue for a period of thirty (30) days after notice thereof from Tenant,
unless such failure cannot with due diligence be cured within a period of thirty
(30) days, in which case such failure shall not be deemed to continue if
Landlord, within said thirty (30)-day period, proceeds promptly and with due
diligence to cure the failure and diligently completes the curing thereof. The
time within which Landlord shall be obligated to cure any such failure shall
also be subject to extension of time due to the occurrence of any Unavoidable
Delay. In no event shall any breach by Landlord permit Tenant to terminate this
Lease or permit Tenant to offset any Rent due and owing hereunder or otherwise
excuse Tenant from any of its obligations hereunder.
28.3 COMPETITION BETWEEN LANDLORD AND TENANT. Landlord and Tenant
agree that neither party shall be restricted as to other relationships and
competition. Affiliates of Tenant shall be allowed to own, lease and/or manage
other golf courses that are not affiliated with Landlord, provided that such
other ownership, leasing or management arrangements are disclosed to Landlord in
writing. Landlord may acquire or own golf courses that may be geographically
proximate to one or more golf courses that Tenant or Affiliates of Tenant may
own, manage or lease.
28.4 NO WAIVER. No failure by Landlord or Tenant to insist upon
the strict performance of any term hereof or to exercise any right, power or
remedy consequent upon a breach thereof, and no acceptance of full or partial
payment of Rent during the continuance of any such breach, shall constitute a
waiver of any such breach or of any such term. To the extent permitted by law,
no waiver of any breach shall affect or alter this Lease, which shall continue
in full force and effect with respect to any other then existing or subsequent
breach.
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28.5 REMEDIES CUMULATIVE. To the extent permitted by law, each
legal, equitable or contractual rights, power and remedy of Landlord or Tenant
now or hereafter provided either in this Lease or by statute or otherwise shall
be cumulative and concurrent and shall be in addition to every other right,
power and remedy. The exercise or beginning of the exercise by Landlord or
Tenant of any one or more of such rights, powers and remedies shall not preclude
the simultaneous or subsequent exercise by Landlord or Tenant of any or all of
such other rights, powers and remedies.
28.6 ACCEPTANCE OF SURRENDER. No surrender to Landlord of this
Lease or of the Property or any part thereof, or of any interest therein, shall
be valid or effective unless agreed to and accepted in writing by Landlord and
no act by Landlord or any representative or agent of Landlord, other than such a
written acceptance by Landlord, shall constitute an acceptance of any such
surrender.
28.7 NO MERGER OF TITLE. There shall be no merger of this Lease or
of the leasehold estate created hereby by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly, (a) this Lease or the
leasehold estate created hereby or any interest in this Lease or such leasehold
estate and (b) the fee estate in the Property.
28.8 QUIET ENJOYMENT. So long as Tenant shall pay all Rent as the
same becomes due and shall fully comply with all of the terms of this Lease and
fully perform its obligations hereunder, Tenant shall peaceably and quietly
have, hold and enjoy the Property for the Term hereof, free of any claim or
other action by Landlord or anyone claiming by, through or under Landlord, but
subject to all liens and encumbrances of record as of the date hereof or any
Landlord's Encumbrances.
28.9 NOTICES. All notices, demands, requests, consents, approvals
and other communications hereunder shall be in writing and delivered or mailed
(by registered or certified mail, return receipt requested and postage prepaid),
addressed to the respective parties, as set forth below:
If to Landlord: Golf Trust of America, L.P.
00 X. Xxxxx'x Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: W. Xxxxxxx Xxxxx, XX
Xxxxx X. Xxxx
Xxxxx X. Xxxxxx
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If to Tenant: E.W.G.C., LLC
c/o The Crescent Company
0000 X. Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxx Xxxxxxxxx
Xxxxxxxx & Xxxxxx
00 X. Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
28.10 SURVIVAL OF CLAIMS. Anything contained in this Lease to the
contrary notwithstanding, all claims against, and liabilities of, Tenant or
Landlord arising prior to any date of termination of this Lease shall survive
such termination.
28.11 INVALIDITY OF TERMS OR PROVISIONS. If any term or provision
of this Lease or any application thereof shall be invalid or unenforceable, the
remainder of this Lease and any other application of such term or provision
shall not be affected thereby.
28.12 PROHIBITION AGAINST USURY. If any late charges provided for
in any provision of this Lease are based upon a rate in excess of the maximum
rate permitted by applicable law, the parties agree that such charges shall be
fixed at the maximum permissible rate.
28.13 AMENDMENTS TO LEASE. Neither this Lease nor any provision
hereof may be changed, waived, discharged or terminated except by an instrument
in writing and in recordable form signed by Landlord and Tenant.
28.14 SUCCESSORS AND ASSIGNS. All the terms and provisions of this
Lease shall be binding upon and inure to the benefit of the parties hereto. All
permitted assignees or sublessees shall be subject to the terms and provisions
of this Lease.
28.15 TITLES. The headings in this Lease are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
28.16 GOVERNING LAW. This Lease shall be governed by and construed
in accordance with the laws of the State (but not including its conflict of laws
rules).
28.17 MEMORANDUM OF LEASE. Landlord and Tenant shall, promptly upon
the request of either, enter into a short form memorandum of this Lease, in form
and substance satisfactory to Landlord and suitable for recording under the
State, in which reference to this Lease, and all options contained herein, shall
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be made. Tenant shall pay all costs and expenses of recording such Memorandum
of Lease.
28.18 ATTORNEYS' FEES. In the event of any dispute between the
parties hereto involving the covenants or conditions contained in this Lease or
arising out of the subject matter of this Lease, the prevailing party shall be
entitled to recover against the other party reasonable attorneys' fees and court
costs.
28.19 NON-RECOURSE AS TO LANDLORD. Anything contained herein to the
contrary notwithstanding, any claim based on or in respect of any liability of
Landlord under this Lease shall be enforced only against the Property and not
against any other assets, properties or funds of (a) Landlord, (b) any director,
officer, general partner, limited partner, employee or agent of Landlord, or any
general partner of Landlord, any of their respective general partners or
stockholders (or any legal representative, heir, estate, successor or assign of
any thereof), (c) any predecessor or successor partnership or corporation (or
other entity) of Landlord, or any of their respective general partners, either
directly or through either Landlord or their respective general partners or any
predecessor or successor partnership or corporation or their stockholders,
officers, directors, employees or agents (or other entity), or (d) any other
Person affiliated with any of the foregoing, or any director, officer, employee
or agent of any thereof.
28.20 NO RELATIONSHIP. Landlord shall in no event be construed for
any purpose to be a partner, joint venturer or associate of Tenant or of any
subtenant, operator, concessionaire or licensee of Tenant with respect to the
Property or any of the Other Leased Properties or otherwise in the conduct of
their respective businesses.
28.21 RELETTING. If Tenant does not exercise its option to extend
or further extend the Term under Section 3.2 or if an Event of Default occurs,
then Landlord shall have the right during the remainder of the Term then in
effect to advertise the availability of the Property for sale or reletting and
to show the Property to prospective purchasers or tenants or their agents at
such reasonable times as Landlord may elect.
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LANDLORD: GOLF TRUST OF AMERICA, L.P.,
a Delaware limited partnership
By: GTA GP, Inc., a Maryland
corporation, General Partner
By: /s/ W. Xxxxxxx Xxxxx, XX
--------------------------------------
W. Xxxxxxx Xxxxx, XX
Its: CEO and President
TENANT: E.W.G.C., LLC,
a Georgia limited liability company
By: Eagle Watch Golf Club Limited Partnership,
an Illinois limited partnership, its sole member
By: The Crescent Company,
its General Partner
By: /s/ E. Xxxx Xxxxxxx
---------------------------------
E. Xxxx Xxxxxxx
Its: President
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