LOAN AGREEMENT between GOLF HOST RESORTS, INC. "Borrower" and GOLF TRUST OF AMERICA, L.P. "Lender"
Use these links to rapidly review the document
Exhibit 10.10 TABLE OF CONTENTS
between
GOLF HOST RESORTS, INC.
"Borrower"
and
GOLF TRUST OF AMERICA, L.P.
"Lender"
i
ii
iii
iv
v
EXHIBITS:
| EXHIBIT A | LEGAL DESCRIPTION OF INNISBROOK PREMISES | |
| EXHIBIT B | LEGAL DESCRIPTION OF TAMARRON PREMISES | |
| EXHIBIT C | CALCULATION OF NET OPERATING INCOME | |
| EXHIBIT D | CALCULATION OF GROSS REVENUE DURING BASE YEAR | |
| EXHIBIT E | BUDGET | |
| EXHIBIT F | DESCRIPTION OF PROPOSED SANDPIPER AND HOTEL COMMON AREA IMPROVEMENTS | |
| EXHIBIT G | DISBURSEMENT PROCEDURES | |
| EXHIBIT H | OPINION OF XXXXXXXX'S COUNSEL | |
| EXHIBIT I | FORM OF PLEDGE AGREEMENT | |
| EXHIBIT J | FORM OF NOTE | |
| EXHIBIT K | FORM OF SECURITIES PURCHASE AGREEMENT | |
| EXHIBIT L | FORM OF SECURITY AGREEMENT | |
| EXHIBIT M | FORM OF DEED OF TRUST/MORTGAGE | |
| EXHIBIT N | FORM OF GUARANTY | |
| EXHIBIT O | FORM OF BORROWER'S CLOSING CERTIFICATE | |
| EXHIBIT P | FORM OF PARTNERSHIP AGREEMENT | |
| EXHIBIT Q | SPECIFIC CHANGE IN USE PROVISIONS FOR INNISBROOK | |
| EXHIBIT R | WARRANTY DISCLOSURE SCHEDULE | |
| EXHIBIT S | PERSONAL PROPERTY SCHEDULE | |
| EXHIBIT T | FAIR MARKET VALUE DETERMINATION PROCEDURES | |
| EXHIBIT U | ADDITIONAL COLLATERAL-INNISBROOK PROPERTY |
vi
THIS LOAN AGREEMENT (this "Agreement") is made as of June 20, 1997 by and between GOLF HOST RESORTS, INC., a Colorado corporation ("Borrower"), and GOLF TRUST OF AMERICA, L.P., a Delaware limited partnership ("Lender").
A. On the Closing Date (as defined below), Borrower will own (i) that certain real property located in the County of Pinellas, State of Florida described on Exhibit A attached hereto (the "Innisbrook Premises"), together with certain Tangible Personal Property (as defined below) and Intangible Personal Property (as defined below) associated therewith (collectively with the Innisbrook Premises, the "Innisbrook Property") and (ii) that certain real property located in the County of La Plata, State of Colorado described on Exhibit B attached hereto (the "Tamarron Premises"), together with certain Tangible Personal Property and Intangible Personal Property associated therewith (collectively with the Tamarron Premises, the "Tamarron Property").
X. Xxxxxxxx has applied to Lender for the loan described herein for the purpose of (i) purchasing certain Xxxxxx's Shares (as defined below) pursuant to the Securities Purchase Agreement (as defined below) and (ii) acquisition of the Innisbrook Property and the Tamarron Property.
X. Xxxxxx is willing to make the loan described herein, upon the terms and subject to the conditions set forth herein. Each of the parties acknowledges and agrees that the transaction contemplated hereby creates a creditor/debtor relationship and not that of a landlord/tenant or partnership.
NOW, THEREFORE, in consideration of the covenants and conditions herein contained, the parties hereto agree as follows:
1.1 Defined Terms. As used herein, the following terms have the respective meanings set forth below:
"AAA" has the meaning provided in Section 13.1.
"Additional Base Interest" means interest, payable monthly, on each dollar of the Tranche I Loan in excess of Sixty-Nine Million Nine Hundred Seventy-Five Thousand Dollars ($69,975,000), accruing at the rate of 9.75% per annum.
"Additional Charges" has the meaning provided in Section 2.5.
"Additional Collateral" means collectively:
(a) the Tamarron Property;
(b) Improvements located on the Tamarron Premises;
(c) those portions of the Innisbrook Property and those Improvements located on the Innisbrook Premises that are not directly associated with the operation of the golf course located on the Innisbrook Premises, as more particularly shown on Exhibit U attached hereto;
(d) any rights of Golf Hosts, Inc., a Florida corporation (the parent of Borrower) ("Golf Hosts") in and to any amounts held in the escrow account established pursuant to the Escrow Agreement (as defined in the Merger Agreement); and
(e) the Lender's Shares, exclusive of the Pledged Xxxxxx's Shares (and provided such shares shall not be pledged to Lender and do not constitute security for Borrower's
obligations hereunder or otherwise under this Agreement or any of the other Loan Documents).
"Additional Interest Amount" means an amount of additional interest lent to Borrower upon the date of the Transfer Triggering Event, calculated as Seventeen Million Four Hundred Two Thousand Dollars ($17,402,000) on the scheduled Maturity Date, discounted to present value using a discount rate of 11.50%.
"Adjusted Net Operating Income" has the meaning set forth in Exhibit C of this Agreement.
"Advisory Association" means that certain association of lessees operating golf courses under a lease with Lender or any Affiliate of Lender.
"Affiliate" means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person.
"Annual Budget" has the meaning provided in Section 6.9.
"Assignee" means any entity to which Lender assigns all or any part of the Loans or the Notes.
"Assignment of Contracts and Permits" means a first priority assignment of, and a first priority security interest in, the Innisbrook Agreements and the Tamarron Agreements, executed by Borrower in favor of Xxxxxx, together with all necessary third party consents to such assignment and such other parties as Lender may require, all in form and substance satisfactory to Lender.
"Authorizations" means all material 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.
"Bankruptcy Event of Default" means any Event of Default described in Section 10.1(c), (d) or (e).
"Base Interest" means, from time to time, (a) the Initial Base Interest, plus (b) the Additional Base Interest, plus (c) the Tranche II Interest (if applicable), in each case as increased from time to time pursuant to the terms of this Agreement.
"Base Interest Escalator" has the meaning provided in Section 2.3(b).
"Base Year" means the calendar year 1996. A quarter-by-quarter calculation of Gross Revenue in the Base Year is attached hereto as Exhibit D.
"Borrower" means Golf Host Resorts, Inc. and any successor thereto, or assignee thereof, as permitted by the terms of this Agreement.
"Borrower's Counsel" means Xxxxx, Xxxxx & Xxxxx.
"Borrower's Organizational Documents" means the partnership agreement, articles of incorporation or operating agreement creating Borrower, all other organizational documents of Borrower, and any and all amendments, supplements and modifications thereto.
"Business Day" means a day other than Saturday, Sunday or any day on which banking institutions in the City of New York, New York are authorized or required by law or other governmental action to be closed.
"Capital Budget" has the meaning provided in Section 6.9.
2
"Capital Expenditures" means expenditures that are properly capitalized under GAAP; provided that Capital Expenditures shall exclude the Tranche I Capital Expenditures.
"Capital Replacement Fund" means the amount of the Capital Replacement Reserve, together with interest thereon as provided in Section 9.1, less amounts withdrawn from the Capital Replacement Fund as provided in Section 9.1.
"Capital Replacement Reserve" means an amount equal to $1,076,850 for Fiscal Year 1997 (pro rated from the Closing Date), $2,000,000 for Fiscal Year 1998 and for each Fiscal Year thereafter such amount increased by 3% per annum, compounded annually, through 2001 and 4% per annum thereafter, or such lesser amount as may be mutually agreed to by Borrower and Lender. Such amount shall be deposited by Borrower quarterly as part of the Capital Replacement Fund, as provided in Section 9.1 hereof.
"Certification of Non-Foreign Status" means a representation and warranty contained in the Deed of Trust or in a separate affidavit, signed under penalty of perjury by an authorized representative of Xxxxxxxx stating (a) that Xxxxxxxx is not a "foreign corporation", "foreign partnership", "foreign trust", or "foreign estate", as those terms are defined in the Code and the regulations promulgated thereunder, (b) that Borrower is duly qualified to do business in the States of Florida and Colorado, (c) Xxxxxxxx's U.S. employer identification number, and (d) the address of Borrower's principal place of business. Such affidavit shall be consistent with the requirements of the regulations promulgated under Section 1445 of the Code, as amended, and shall otherwise be in form and substance acceptable to Lender.
"Change of Control" means:
(a) the issuance and/or sale by Borrower or the sale by any stockholder or partner of Borrower of a Controlling interest in Borrower to a Person other than to a Person that is an Affiliate of Borrower, which shall include spouses and lineal descendants of any stockholder of Borrower as well as any trusts created for estate planning purposes where such stockholder and/or spouses and lineal descendants are beneficiaries;
(b) the sale, conveyance or other transfer of all or substantially all of the assets of Borrower (whether by operation of law or otherwise), other than to a Person that is an Affiliate of Borrower;
(c) any other transaction, or series of transactions, which results in the shareholders or partners who control Borrower as of the date hereof no longer having Control of Borrower; or
(d) any transaction pursuant to which Borrower is merged with or consolidated into another entity (other than an entity owned and Controlled by an Affiliate of Borrower), and Borrower is not the surviving entity.
Notwithstanding the foregoing, a Change of Control shall not be deemed to have occurred for purposes of this Agreement if the shareholders or partners who Control Borrower as of the date hereof remain in Control of Borrower through an agreement or equity interest.
"Closing Date" or "Closing" means the date upon which all of the conditions set forth in Article III are satisfied and the proceeds of the Tranche I Loan are disbursed to Borrower, which date shall in no event be later than the Termination Date.
"Code" means the Internal Revenue Code of 1986, as the same may be amended or supplemented, and the rules and regulations promulgated thereunder.
"Collateral" has the meaning given such term in the Security Agreement.
3
"Company" means GTA, Inc. and any subsidiaries thereof, including GTA LP and GTA GP.
"Condemnation" means (a) the exercise of any governmental power, whether by legal proceedings or otherwise, by a Xxxxxxxxx, and (b) a voluntary sale or transfer by Xxxxxx 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.
"Condominiums" means the residential condominiums located on the Innisbrook Property.
"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 date Borrower elects, in its sole discretion, to receive additional Lender's Shares, purchased with the Tranche II Loan, in accordance with the rights of Borrower provided in the Securities Purchase Agreement.
"Conversion Date Capitalization Rate" has the meaning given such term in the Securities Purchase Agreement.
"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.
"Debt Service" means all Interest and principal payable by Borrower to Lender pursuant to the terms of this Agreement.
"Deed of Trust" means, collectively, one or more deeds of trust or mortgages, with assignments of rents, fixture filings and memorandums of option to purchase, in substantially the form attached hereto as Exhibit M, executed by Xxxxxxxx, as trustor or mortgagor, for the benefit of Lender as beneficiary or mortgagee, creating a first priority lien, subject only to Permitted Exceptions, on the Innisbrook Premises and the Tamarron Premises and all buildings, fixtures and improvements now or hereafter owned or acquired by Borrower and situated thereon, and all rights and easements appurtenant thereto, in the amount of the Loan Amount.
"Draw Request Documents" means the documents listed in clauses (a) through (g), inclusive, of Exhibit G attached hereto.
"Employment Agreements" shall mean all employment agreements, written or oral, between Borrower and the persons employed with respect to the Property in effect as of the date hereof.
"Environmental Laws" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. §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. § 651, et seq.; the Clean Air Act, as amended, 42 U.S.C. §7401, et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. §201, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. §1251, et seq.; and all federal, state and local environmental health and safety statutes, ordinance, codes, rules, regulations, orders and
4
decrees regulating, relating to or imposing liability or standards concerning or in connection with Hazardous Materials.
"Event of Default" means the occurrence of any of the events listed in Section 10.1 and the expiration of any applicable cure period provided therein.
"Fair Market Value" means the market value of the applicable Property on the date of determination, as established pursuant to the procedures identified on Exhibit T.
"Financing Statement" means a UCC-1 financing statement executed by Xxxxxxxx in favor of Xxxxxx, perfecting Xxxxxx's security interest in the Collateral, in form and substance satisfactory to Lender.
"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 Term and the Pledge Agreement, the first Fiscal Year shall be deemed to include the period from the Closing Date to December 31, 1997.
"Fixtures" means all permanently affixed equipment, machinery, fixtures, and other items of real and/or personal 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.
"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.
"Golf Hosts Guaranty" means the payment and performance guaranty to be executed at Closing by Golf Hosts, Inc., a Florida corporation, as guarantor.
"Gross Revenue" means all revenues accrued by Borrower (whether by Borrower or any subtenants, assignees, concessionaires or licensees) from or by reason of the operation of the operations at the Innisbrook Property calculated in accordance with GAAP (but excluding reasonable reserves for refunds, allowances and bad debts applicable to such operations), including (i) revenues received from the operation of the hotel at the Innisbrook Property excluding payments made by Borrower pursuant to the Master Lease, (ii) revenues from membership initiation fees (to the extent described in Exhibit E attached hereto), (iii) periodic membership dues, (iv) greens fees, (v) fees to reserve a tee time, (vi) guest fees, (vii) golf cart rentals, (viii) parking lot fees, (ix) locker rentals, (x) fees for golf club storage, (xi) fees for the use of swim, tennis or other facilities, (xii) charges for range balls, range fees or other fees for golf practice facilities, (xiii) 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 Innisbrook Property), (xiv) fees or other charges for fitness centers, (xv) forfeited deposits with respect to any membership application, (xvi) transfer fees imposed on any member in connection with the transfer of any membership interest, (xvii) fees or other charges paid to Borrower by sponsors of golf tournaments at the Innisbrook Property, (xviii) advertising or placement fees paid by vendors in exchange for exclusive use or name rights at the Innisbrook Property, (xvix) fees received in
5
connection with any golf package sponsored by any hotel group, condominium group, golf association, travel agency, tourist or travel association or similar payments, (xx) the operation of snack bars, restaurants, bars, catering functions, and banquet operations, (xxi) sale of merchandise and inventory on the Innisbrook Property, and (xxii) photography services provided, however, that Gross Revenue shall not include:
(a) The amount of all taxes, assessments, Impositions and other governmental charges and assessments of every kind and nature, including, without limitation, city, county, state or federal taxes, including all sales, admissions, usage, or excise tax on the items included in Gross Revenue, which is both added to or incorporated in the selling price and paid to the taxing authority by Borrower;
(b) Revenues or proceeds from sales or trade-ins of machinery, vehicles, trade fixtures or personal property owned by Xxxxxxxx used in connection with Borrower's operation of the Innisbrook Property;
(c) Interest or other income derived from the investment of surplus funds or reserves;
(d) Any amounts recovered in any litigation against third parties except for amounts awarded to compensate for lost revenues otherwise includable in Gross Revenue;
(e) Any condemnation or taking proceeds, whether or not such proceeds are characterized as compensation for lost rent;
(f) Insurance proceeds, unless (and except to the extent that) such proceeds are characterized as business interruption and/or loss of "rental value" insurance proceeds (except for such proceeds attributable to a Lease if (and for so long as) the tenant thereunder has the right to terminate such Lease as a result of the casualty in question);
(g) Any proceeds resulting from the sale, exchange, transfer, financing or refinancing of all or any part of the Real Property, Tangible Personal Property or Intangible Personal Property;
(h) Any capital or equity contributions or other infusions of capital or equity to the Borrower or the sale of any Property, Collateral or Lender's Shares;
(i) Any proceeds of any other indebtedness of the Borrower;
(j) Forfeited security deposits and other security deposits received or surrender or termination payment made or other amounts received from tenants or guests to compensate for damage to or loss of all or portions of the Real Property or Tangible Personal Property; and
(k) Gratuities to employees if separately itemized on the customer's bills or checks.
"GTA GP" means GTA GP, Inc. and any successor thereto.
"GTA, Inc." means Golf Trust of America, Inc., a Maryland corporation, an Affiliate of Lender.
"GTA LP" means GTA LP, Inc. and any successor thereto.
"Guarantor" means Westin Hotel Company.
"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;
6
(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).
"Hilton Management Agreement—Innisbrook" means the management agreement dated as of March 25, 1993 by and between Hilton Hotels Corporation and Borrower, whereby Hilton Hotels Corporation manages the Innisbrook Property.
"Hilton Management Agreement—Tamarron" means the management agreement dated as of November 20, 1995 by and between Hilton Hotels Corporation and Borrower, whereby Hilton Hotels Corporation manages the Tamarron Property.
"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);
(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 Interest or Additional Charges (including all interest and penalties thereon due to any failure in payment by Borrower), 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) Lender or Lender'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 Lender or any other Person other than Borrower;
(bb) any transfer or net revenue tax of Lender or any other Person other than Borrower; or
(cc) any tax imposed with respect to any principal or interest on any indebtedness on the Property.
"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 (a) the Innisbrook Premises as more particularly described in Exhibit A attached hereto, and (b) the Tamarron Premises as more particularly described on Exhibit B attached hereto; provided that the Improvements shall exclude any portion of the Additional Collateral released in accordance with the terms of the Loan Documents.
7
"Initial Base Interest" means interest payments of $561,588.58 per month (pro rated for any partial months), totaling $6,739,063 per annum.
"Innisbrook Agreements" means the Master Lease, the Hilton Management Agreement—Innisbrook, the Westin Management Agreement and Merger Agreement.
"Innisbrook Hotel" means the existing hotel facility on the Innisbrook Property, including all common areas and common facilities, as the same may be altered, added to or reconstructed from time to time.
"Innisbrook Premises" means that certain real property located in the City of Tarpon Springs, County of Pinellas, State of Florida described on Exhibit A attached hereto.
"Innisbrook Property" has the meaning given in Recital A.
"Insurance Requirements" mean all terms of any insurance policy required by this Agreement and all requirements of the issuer of any such policy.
"Intangible Personal Property" means all intangible personal property owned by Xxxxxxxx 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.
"Interest" means, collectively, the Base Interest (as increased by the Base Rent Escalator) and the Participating Interest.
"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 (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 Borrower (other than encumbrances created by Lender without the consent of Borrower), at any time in force affecting the Property; or (iii) require the cleanup or other treatment of any Hazardous Material.
"Lender" means Golf Trust of America, L.P., and any successor or assignee permitted in accordance with the terms of this Agreement.
"Lender Assignee" has the meaning given in Article XIV.
"Lender's Shares" means partnership units of Lender and common stock of GTA, Inc.
"Lender's Shares/Purchase Price" means an amount equal to 400,000 partnership units of Lender; provided such amount shall be reduced to 125,000 partnership units of Lender upon a Transfer Triggering Event; and further provided in either event such partnership units shall be immediately convertible, on a one for one basis, into shares of common stock of GTA, Inc.
8
"Lender's Title Policy" means a title insurance policy in the form of an American Land Title Association Extended Coverage Loan Policy—1970 (without modification, revision or amendment) with ALTA Endorsement Form 1 Coverage (LP 10), if available insuring that on the Closing Date, Borrower owns fee simple title to the Real Property (or with respect to the land described in Exhibit F relating to the expansion of the Sandpiper golf course, an irrevocable easement over such land) and that the Deed of Trust is a valid first lien on the Property in the amount of the Loan Amount. The Lender's Title Policy shall, if available, contain CLTA Endorsements (or equivalent) 100, 103.7, 104.6, 111.5, 116.1, a shared appreciation/participating mortgage endorsement in form and substance satisfactory to Lender, and such other endorsements as Lender requires. Except as approved by Xxxxxx in writing prior to the Closing Date, the Lender's Title Policy shall not contain any exceptions for rights of parties in possession, easements not of record or unpaid installments of special assessments, or any other exceptions to coverage not approved by Xxxxxx. The Lender's Title Policy shall contain such reinsurance agreements and direct access agreements as Lender may require. During the term of the Loans, Lender may reasonably require, if available, other endorsements to the Lender's Title Policy, including CLTA Endorsements 101.2 and 122 (or equivalent).
"Loan or Loans" means the participating loans described in this Agreement in the maximum principal amount of the Loan Amount, consisting of the Tranche I Loan, the Tranche II Loan and the Additional Interest Amount.
"Loan Amount" means the Tranche I Loan Amount, the Tranche II Loan Amount and the Additional Interest Amount.
"Loan Documents" means this Agreement, the Notes and the documents described in Section 2.10
"Master Lease" means, (i) with respect to the Innisbrook Property, the master lease adopted August 1, 1990 and amended and restated August 1, 1992, September 15, 1993 and July 17, 1995, and (ii) with respect to the Tamarron Property, the master lease dated July 15, 1993 as amended on September 15, 1994, in each case between Borrower and certain of the owners of the condominiums at the Innisbrook Property and the Tamarron Property, respectively, as the same may be modified, amended or supplemented from time to time.
"Maturity Date" means , 2027, or such earlier date as the principal balance of the Loan is due following an Event of Default hereunder.
"Merger Agreement" means the Stock Purchase and Merger Agreement by and among Golf Hosts, Inc., Xxxxxxx X. Xxxxxxxxx, Xxxxxxx Xxxxxxxxx, X. Xxxxx XxXxxxxxx and TM Golf Hosts, Inc.
"Net Operating Income" has the meaning set forth in Exhibit C of this Agreement. Interest accruing on the Additional Interest Amount shall not be included for the purposes of calculating Net Operating Income under this Agreement or any of the other Loan Documents, including, without limitation, the Securities Purchase Agreement and the Pledge Agreement.
"Non-Complying Party" has the meaning provided in Section 13.2.
"Note A" has the meaning provided in Section 2.2.
"Note B" has the meaning provided in Section 2.2.
"Notes" means each secured promissory note evidencing the Loan, executed by Xxxxxxxx, payable to the order of Lender, in an original principal amount equal to, in the case of Note A, the Tranche I Loan Amount and, in the case of Note B, the Tranche II Loan Amount, each in the form attached hereto as Exhibit J.
9
"Officer's Certificate" means a certificate of Borrower signed by an officer authorized to so sign by the board of directors or by-laws, or if Xxxxxxxx is a partnership, by an officer authorized to so sign by the general partners.
"Official Records" means the Official Records of a particular State and County.
"Operating Budget" has the meaning provided in Section 6.9.
"Other Leased Properties" means the property or properties leased or hereafter leased to Borrower or an Affiliate of Borrower by Lender or an Affiliate of Lender, or mortgaged by Borrower or an Affiliate of Borrower to Lender or an Affiliate of Lender, other than pursuant to this Agreement.
"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.
"Participating Interest" means, for any Fiscal Year during the Term, a percentage of the positive difference between that year's Gross Revenue and the Gross Revenue for the Base Year, pro rated for any partial periods. For purposes of calculating the Participating Interest, the following threshold amounts (excepting the Base Year Gross Revenue) shall each be increased (but not decreased) each year beginning in 1998 in an amount equal to the increase in the CPI for 1997 (pro rated from the Closing Date). The Participating Interest shall be calculated as follows:
(i) Seventeen percent (17%) of the positive difference between that year's Gross Revenue and the Base Year Gross Revenue in excess of $39,968,000, but less than or equal to $43,000,000 (as increased by the CPI);
(ii) Twenty percent (20%) of the positive difference between that year's Gross Revenue and the Base Year Gross Revenue in excess of $43,000,000 (as increased by the CPI) but less than $50,000,000 (as increased by the CPI); and
(iii) Twenty-five percent (25%) of the positive difference between that year's Gross Revenue and the Base Year Gross Revenue in excess of $50,000,000 (as increased by the CPI).
"Partnership" means Golf Trust of America, L.P., a Delaware limited partnership.
"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 Lender or any Affiliate of Lender who is not then in default under its lease;
(b) any entity affiliated with an entity acquiring from Borrower or an Affiliate of Borrower its resort and related operations located at or adjacent to the Innisbrook Property or the Tamarron Property, and provided such entity (i) is not generally recognized in the community as being of ill-repute or as being in any other manner a Person with whom or with which a prudent business person would not wish to associate in a commercial venture and (ii) shall have the financial resources sufficient to enable it to satisfy the obligations of Borrower under this Agreement (provided for purposes of this subsection (ii) such entity shall not be required to have financial resources in excess of those of Borrower at the time of such transfer);
(c) a list of pre-approved assignees prepared by Xxxxxx from time to time in consultation with the Advisory Association.
"Payment and Performance Guaranty" means an Agreement Re Guaranty of Funds executed by Guarantor in the form attached hereto as Exhibit N.
10
"Permits" means, collectively, (a) all authorizations, approvals, permits, variances and land use entitlements relating to the Property and (b) all permits, licenses and agreements required for the use, occupancy or operation of the Property.
"Permitted Exceptions" means those exceptions to title contained in the Lender's Title Policy as accepted and approved by Xxxxxx on the Closing Date, which approval shall not be unreasonably withheld or delayed, together with any other exceptions permitted by this Agreement or the Loan Documents.
"Person" means and includes natural persons, corporations, limited partnerships, limited liability companies, general partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust 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 Agreement, by and between Borrower and Lender, in the form attached hereto as Exhibit I.
"Pledged Xxxxxx's Shares" means the Lender's Shares pledged pursuant to the Pledge Agreement.
"Potential Default" means the existence of any circumstance or the occurrence of any event which, with the giving of notice, the passage of time or both would constitute an Event of Default under any of the Loan Documents.
"Preliminary Title Report" means a current preliminary title report issued by the Title Company covering the Real Property and showing all exceptions to title and accompanied by legible copies of all recorded documents referred to in such exceptions.
"Prepayment Differential" shall mean the interest rate that is equal to (a) the Base Interest then payable, together with any increases as herein provided, plus the amount of Participating Interest payable for the immediately prior calendar year calculated as a percentage yield, minus the Reinvestment Yield, divided by (b) twelve (12), provided the Prepayment Differential shall in no event be less than zero.
"Primary Intended Use" means the operation of a golf course and the operation of the related resort and conference facilities and other uses and activities incidental or related to the operation thereof, including development and sale of adjacent single or multi-family home sites, commercial properties and condominium and timeshare units.
"Prime Rate" means on any date, a rate equal to the annual rate on such date announced by Citibank, N.A., or its successor entity, to be its prime rate or, if the prime rate is discontinued, the base rate for a 90-day unsecured loan to its corporate borrowers of the highest credit standing.
"Property" means, collectively, the Innisbrook Property and the Tamarron Property; provided that the Property shall exclude any portion of the Additional Collateral released in accordance with the terms of the Loan Documents.
"Purchase Option" has the meaning specified in Article XI.
"Purchase Price for the Contingent Additional OP Units" has the meaning set forth in the Securities Purchase Agreement.
"Real Property" means, collectively, the Innisbrook Premises and the Tamarron Premises, together with all Improvements thereon, and all easements and appurtenances attached thereto; provided that the Real Property shall exclude any portion of the Additional Collateral released in accordance with the terms of the Loan Documents.
11
"Reinvestment Yield" shall mean the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the scheduled Maturity Date, with such yield based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to such prepayment date (or if such bid price is not published on that date, the next preceding date when such bid price is published), less two hundred (200) basis points.
"Release Date" has the meaning set forth in Section 2.11(b). The term "Release Date" shall also include the date upon which the Loan is repaid in full and Borrower has fully discharged its obligations under the Loan Documents.
"Securities Purchase Agreement" means the Purchase Agreement between Borrower and Lender in the form attached hereto as Exhibit K.
"Security Agreement" means a security agreement, executed by Xxxxxxxx in favor of Xxxxxx, creating a first priority security interest in the Collateral, in the form attached hereto as Exhibit L.
"State" means, collectively, each 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 Borrower 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 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.
"Tamarron Agreements" means the Master Lease respecting the Tamarron Property and the Hilton Management Agreement—Tamarron.
"Tamarron Premises" means that certain real property located in the City of Durango, County of La Plata, State of Colorado described on Exhibit B attached hereto.
"Tamarron Property" has the meaning given in Recital A.
"Term" means the period from the Closing Date through the earlier of (a) the Maturity Date, or (b) such other date as this agreement is terminated due to a default by Borrower or otherwise.
"Termination Date" means September 30, 1997.
"Title Company" means as to the Innisbrook Property, Xxxxxxx Title of Tampa, Florida and as to the Tamarron Property, Basin Title Insurance Agency, Inc., Durango, Colorado, as agent for Xxxxxxx Title Guaranty Company.
"Tranche I Capital Expenditures" means the costs to be incurred in connection with the development of a nine-hole expansion of the Sandpiper golf course on to adjacent property described on Exhibit F on which Borrower has an irrevocable easement and improvements to the common areas and common facilities of the Innisbrook Hotel described on Exhibit F hereto (which shall be funded through a borrowing of the Tranche I Loan). The Tranche I Capital Expenditures shall also be deemed to include up to $1,000,000.00 to be used by Borrower for working capital purposes.
"Tranche I Loan" means the Loan made pursuant to Sections 2.1(a) and (b), evidenced by Note A, in a principal amount not to exceed the Tranche I Loan Amount.
"Tranche I Loan Amount" means Seventy-Eight Million Nine Hundred Seventy-Five Thousand Dollars ($78,975,000).
12
"Tranche II Interest" means the interest accruing on the Tranche II Loan Amount, initially at the rate of the Conversion Date Capitalization Rate, as increased by the Base Rent Escalator on the date of disbursement of such loan and for each of the next four (4) years.
"Tranche II Loan" means the Loan made pursuant to Section 2.1(c), evidenced by Note B in the principal amount of the Tranche II Loan Amount.
"Tranche II Loan Amount" means the dollar amount of the Purchase Price for the Contingent Additional OP Units pursuant to the Securities Purchase Agreement.
"Transfer Triggering Event" means:
(a) the issuance and/or sale by Borrower (which for purposes of this definition includes Golf Hosts, Inc., which owns a one hundred percent (100%) interest in Borrower) of any interest in Borrower, including any common stock, preferred stock or otherwise, or the issuance and/or sale by Borrower of any debt instrument, option, warrant or other instrument convertible into an equity interest in Borrower, including the entering into an agreement to do the foregoing;
(b) the sale, pledge, transfer, assignment, hypothecation, gift or devise by any five percent (5%) or greater stockholder or partner of Borrower of any interest in Borrower (including any such transfers by any stockholder or partner of any Person which owns a five percent (5%) or greater interest in Borrower), to any Person regardless of whether following such transfer the transferor retains an interest in Borrower, including transfers by will, intestate succession, gift, devise, interspousal transfer or transfers to a trust, regardless of whether such trust is controlled by the transferor; transfers by operation or law, and any and all other transfers whether voluntary or involuntary, including the entering into an agreement to do the foregoing;
(c) the sale, pledge, conveyance or other transfer of all or substantially all of the assets of Borrower (whether by operation of law or otherwise, voluntary or involuntary), including transfers to an Affiliate of Borrower, including the entering into an agreement to do the foregoing, excluding, however, transfers to Lender to secure Xxxxxxxx's obligations hereunder;
(d) any transaction pursuant to which Borrower is merged with or consolidated into another entity (including, without limitation, transfers to entities owned and Controlled by an Affiliate of Borrower as of the date hereof), including the entering into an agreement to do the foregoing; and
(e) any and all other transfers which have the effect of transferring or alienating any interest of a five percent (5%) holder of Borrower or any entity which owns Borrower, including the entering into an agreement to do the foregoing.
"Unsuitable For Its Primary Intended Use" means a state of condition of the Property such that in the good faith, reasonable judgment of Borrower, the Property cannot be operated on a commercially practicable basis for its Primary Intended Use.
"Utilities" means 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.
"Westin Management Agreement" means that certain Management Agreement by and between Westin and Xxxxxxxx dated as of May 7, 1997 wherein Westin will manage the Innisbrook Property for an initial term of twenty (20) years, commencing upon expiration of the Hilton Management Agreement—Innisbrook.
13
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) "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 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.
2.1 Agreement to Lend and Borrow. Subject to the terms and conditions of this Agreement, Xxxxxx agrees to lend to Xxxxxxxx, and Xxxxxxxx agrees to borrow from Lender, up to the Loan Amount. The Loan proceeds shall be used for (a) the purchase of the Innisbrook Property and the Tamarron Property, (b) payment of the purchase price for the Lender's Shares pursuant to the Securities Purchase Agreement, (c) in the case of the Tranche II Loan, payment of the Purchase Price for the Contingent Additional OP Units, and (d) subject to the satisfaction of the conditions set forth in Section 4.2, the development of a nine-hole expansion of the Sandpiper golf course and improvements to the common areas of the Innisbrook Hotel that constitute a portion of the Innisbrook Property, as more particularly described on Exhibit F hereto. All payments by Xxxxxxxx to Lender hereunder shall be made to the address specified in the Notes, or as otherwise specified in writing to Borrower. Xxxx proceeds shall be disbursed at the following times and in the following amounts:
(a) If Borrower has fully satisfied the conditions of Article III, Xxxxxx shall disburse Loan proceeds in the principal amount of $69,975,000 on the Closing Date.
(b) If Borrower has fully satisfied the conditions to additional disbursements in Section 4.2, Lender shall disburse additional Loan proceeds in an aggregate amount, together with all other amounts disbursed pursuant to this Section 2.1(b), not to exceed the principal amount of $9,000,000, when requested by Borrower in accordance with the terms and conditions of Article IV.
(c) If Borrower elects to buy the Contingent Additional OP Units, then Lender shall, subject to Borrower having fully satisfied the conditions to additional disbursements in Section 4.3, disburse to Borrower the Tranche II Loan in the Tranche II Loan Amount.
(d) If the Loan is not prepaid upon a Transfer Triggering Event, then Lender shall loan to Borrower the Additional Interest Amount. Such amount shall be added to the outstanding principal balance of the Loan, shall be evidenced by a separate instrument, shall accrue interest at 11.50% and shall not be prepayable in whole or in part. No interest shall be payable with respect to the Additional Interest Amount until the Maturity Date.
14
The aggregate principal amount of the Tranche I Loan shall not under any circumstances exceed the Tranche I Loan Amount. The aggregate principal amount of the Tranche II Loan shall not under any circumstances exceed the Tranche II Loan Amount. Notwithstanding anything in this agreement to the contrary, no further disbursements of the Tranche I Loan shall be made following December 31, 2000.
2.2 Evidence of Indebtedness. The Tranche I Loan shall be evidenced by a promissory note in the form of Exhibit J-1 hereto ("Note A"). Disbursements of the Tranche I Loan shall be charged and funded under Note A. The Tranche II Loan shall be evidenced by a promissory note in the form of Exhibit J-2 hereto ("Note B"). Disbursements of the Tranche II Loan shall be charged and funded under Note B. Disbursements of the Additional Interest Amount shall be evidenced by a separate note and shall be charged and funded thereunder.
2.3 Tranche I Loan Interest. Borrower will pay to Lender, in lawful money of the United States of America, Interest until the Tranche I Loan is repaid in full on the outstanding principal amount of the Tranche I Loan in accordance with the following terms of this Section 2.3. 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:
(a) Base Interest. Payments of Base Interest shall be paid monthly, on the first Business Day of each month in arrears.
(b) Increase in Base Interest. Beginning on January 1, 1998 and on each January 1 thereafter through and including January 1, 2002, the Base Interest payments for the year then-commencing shall be increased by five percent (5%) over the aggregate Base Interest payments for the previous year (the "Base Interest Escalator"); provided the January 1, 1998 increase shall be pro rated for the number of days in the Term in 1997. In addition, if the Tranche II Loan is funded, then the Base Interest Escalator shall equal three percent (3%) effective immediately and shall continue to apply to each of the four (4) years following such increase, with the increase effective on the anniversary of the increase in Base Interest as provided in Section 2.3(e) in lieu of increases on January of each year (after which time no increase will be applicable).
(c) Participating Interest. In addition to Base Interest, Borrower shall pay Participating Interest as provided herein. Beginning in the first year of the Term and continuing throughout the Term, Borrower shall calculate the Gross Revenue for each Fiscal Quarter (or shorter period, if applicable) within fifteen (15) days of the end of such Fiscal Quarter (or shorter period, if applicable) and submit such calculation in writing to Lender by way of an Officer's Certificate. If the Gross Revenue for that Fiscal Quarter (or shorter period, if applicable) is greater than the Gross 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), on a pro rata basis, then Borrower shall pay to Lender the Participating Interest upon submittal of the Officer's Certificate. During any period in which the Participating interest is subject to a ceiling, such ceiling shall apply to each of the Participating Interest payments due during any Fiscal Quarter. The Participating Interest payable in any period in any Fiscal Year shall be adjusted to reflect the Participating Interest 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 Interest resulting from the payment of Participating Interest (together with any increase in Base Interest pursuant to Section 2.3(b)) payable, if any, during each of the first five (5) full calendar years of the Term shall be limited to seven percent (7%) of the aggregate Interest payable for the prior calendar year, or in the case of 1997, of the Base Interest pro rated. Borrower's obligation to pay Participating Interest shall be reduced during each Fiscal Quarter by an amount equal to the increase in the Base Interest over the Initial Base Interest during such Fiscal Quarter (excluding from such calculation any such increase attributable to the payment of Additional Base
15
Interest as a result of additional Loans, but including increases in Base Interest applicable from time to time as a result of the application of the Base Interest Escalator to any such Additional Base Interest).
(d) Annual Reconciliation of Participating Interest. Within sixty (60) days after the end of each Fiscal Year, or after the expiration or termination of this Agreement, Borrower shall deliver to Lender an Officer's Certificate setting forth (i) the Gross Revenue for the Fiscal Year just ended, and (ii) a comparison of the amount of the Participating Interest actually paid during such Fiscal Year versus the amount of Participating Interest actually owing on the basis of the annual calculation of the Gross Revenue. If the Participating Interest for such Fiscal Year exceeds the sum of the quarterly payments of Participating Interest previously paid by Borrower, Borrower shall pay such deficiency to Lender along with such Officer's Certificate. If the Participating Interest for such Fiscal Year is less than the amount of Participating Interest previously paid by Xxxxxxxx, Lender shall, at Borrower's option, either (i) remit to Borrower its funds in an amount equal to such difference, or (ii) grant Borrower a credit against the payment of Interest next coming due. Lender shall have the right to audit all of Xxxxxxxx's business operations at the Property so as to determine the calculation of Participating Interest as provided in Section 6.8.
(e) Record-keeping. Borrower shall utilize an accounting system for the Property in accordance with its usual and customary practices and in accordance with GAAP which will accurately record all Gross Revenue. Borrower 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.
2.4 Tranche II Loan Interest. Borrower will pay to Lender, in lawful money of the United States of America, Interest until the Tranche II Loan is repaid in full on the outstanding principal amount of the Tranche II Loan at a rate per annum equal to the Conversion Date Capitalization Rate. If any payment owing under this Section 2.4 shall otherwise be due on a day that is not a Business Day, such payment shall be due on the next succeeding Business Day.
2.5 Additional Charges. In addition to the Base Interest, the Participating Interest and the Tranche II Interest, (a) Borrower shall also pay and discharge when due and payable all other amounts, liabilities, obligations and Impositions which Borrower assumes or agrees to pay under this Agreement, including the Capital Replacement Reserve, and (b) in the event of any failure on the part of Borrower to pay any of those items referred to in clause (a) above, Borrower 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 Agreement, all Additional Charges shall become due and payable at the earlier of (i) thirty (30) days after either Lender or the applicable third party delivers an invoice to Borrower, or (ii) the date of delinquency with respect to Impositions.
2.6 Late Payment of Interest. Borrower hereby acknowledges that late payment by Borrower to Lender of Base Interest, Participating Interest or Additional Charges will cause Lender to incur costs not contemplated under the terms of this Agreement, the exact amount of which is presently anticipated to be extremely difficult to ascertain. Accordingly, if any installment of Interest shall not be paid on or before the date such payment is due, Borrower will pay Lender on demand, as Additional Charges, a late charge equal to the lesser of five percent (5%) of such late payment or $10,000. The parties agree that this late charge represents a fair and reasonable estimate of the costs that Lender will incur by reason of late payment by Xxxxxxxx and is not a penalty. In addition, if any installment of Interest or Additional Charges (but only as to those Additional Charges which are payable directly to Lender) shall not be paid within five (5) days after the due date with respect to Base Interest or Participating Interest or delivery of an invoice to Borrower 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
16
Overdue Rate on the amount of such installment, and Borrower will pay such interest to Lender 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 Agreement, nor prevent Lender from exercising any other rights and remedies available to Lender.
2.7 No Deductions. All payments of principal or interest under the Notes shall be made without deduction of any present or future taxes, levies, imposts, deductions, charges or withholdings, which amounts shall be paid by Borrower (except as to amounts which are applicable to Lender based on Lender's specific operations and not generally applicable to similarly situated lenders). Borrower will pay the amounts necessary such that the gross amount of the principal and interest received by Xxxxxx is not less than that required by the Notes. If Borrower shall be required by law to deduct any such amounts from or in respect of any principal or interest payment under the Notes, then (a) the sum payable to Lender shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this provision) Lender receives an amount equal to the sum it would have received had no deductions been made, (b) Borrower shall make such deductions, and (c) Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law. All stamp and documentary taxes shall be paid by Xxxxxxxx. If, notwithstanding the foregoing, Lender pays such taxes, Borrower will reimburse Lender for the amount paid. Borrower will furnish Lender official tax receipts or other evidence of payment of all taxes within thirty (30) days following the date upon which such taxes are due and payable.
2.8 Payment of Principal. (a) The Tranche I Loan Amount, or so much thereof as has been disbursed and remains outstanding under Note A, together with all unpaid interest accrued thereon, and all other amounts payable by Borrower with respect to Note A under the terms of the Loan Documents, and (b) the Tranche II Loan Amount, or so much thereof as has been disbursed and remains outstanding under Note B, together with all unpaid interest accrued thereon, and all other amounts payable by Borrower with respect to Note B under the terms of the Loan Documents, shall be due and payable on the Maturity Date.
2.9 Prepayment. Borrower shall have no right to prepay the Loans during the first ten years following the Closing Date, except upon a Transfer Triggering Event. On the tenth (10th) anniversary of the Closing Date, on each five (5) year anniversary thereafter, and upon a Transfer Triggering Event, Borrower shall have the right to prepay the Loan, provided each such prepayment shall (i) include the prepayment amount set forth in Section 10.5, and (ii) shall be preceded by not less than one hundred eighty (180) days prior written notice. Following a Transfer Triggering Event, and provided the Loans are not repaid on such date, Borrower shall no longer be permitted to prepay the Loans.
2.10 Security. Payment of the Notes shall be secured by the following:
(a) the Deed of Trust;
(b) the Security Agreement and the Financing Statement;
(c) the Assignment of Contracts and Permits;
(d) the Pledge Agreement;
(e) the Golf Hosts Guaranty; and
(f) the Payment and Performance Guaranty.
(a) The Pledged Xxxxxx's Shares shall be released (and Lender shall release common stock of GTA Inc. prior to the release of partnership units of Lender unless otherwise directed by
17
Borrower), and shall no longer constitute collateral security for the loan, at the following times and in accordance with the following provisions:
(i) One-third (1/3) of the Pledged Lender's Shares (or an equivalent dollar amount if held in cash or other securities) at such time as the Net Operating Income with respect to the Innisbrook Property shall have been, for each of the two (2) prior Fiscal Years, at least one hundred twenty percent (120%) of the Debt Service payable by Borrower for each such Fiscal Year.
(ii) An aggregate of two-thirds (2/3) of the Pledged Xxxxxx's Shares (or an equivalent dollar amount if held in cash or other securities) at such time as the Net Operating Income with respect to the Innisbrook Property shall have been, for each of the two (2) prior Fiscal Years, at least one hundred and thirty percent (130%) of Debt Service payable by Borrower for each such Fiscal Year.
(iii) All of the Pledged Lender's Shares (or an equivalent dollar amount if held in cash or other securities) provided that the Net Operating Income with respect to the Innisbrook Property shall have been, for each of the two (2) prior Fiscal Years, one hundred and forty percent (140%) of the Debt Service payable by Borrower for each such Fiscal Year.
This release of Pledged Xxxxxx's Shares shall occur simultaneously with the circumstances triggering such an adjustment as described above, without the necessity for any further action on the part of Pledgor or Secured Party (other than the execution by Secured Party of any documentation of release required pursuant to the terms of the Pledge Agreement). Notwithstanding the foregoing, in no event shall any of the Pledged Xxxxxx's Shares be released until prior to the expiration of Xxxxxx's obligation to make disbursements of the Tranche II Loan, including without limitation, termination of such obligation at Borrower's election, in its sole discretion.
(b) The Additional Collateral shall be released, and shall no longer constitute collateral security for the Loans, on the date that the audited financial statements delivered pursuant to Section 6.10(c) demonstrate that the ratio of the Net Operating Income of the Innisbrook Property during such year (after required funding of the Capital Replacement Fund) to Debt Service, is equal to or greater than 1.135 to 1.00 on a trailing twelve (12) months basis, and Borrower has provided an Officer's Certificate to Lender certifying to that effect (such date, the "Release Date"). In addition, on the Release Date the Payment and Performance Guaranty and the Golf Hosts Guaranty and all of the obligations thereunder shall terminate and be of no further effect. Subject to the terms of the last sentence of the succeeding subparagraph, Borrower shall have the continuing right to cause the Tamarron Premises to be released prior to the Release Date upon delivery to Lender of $250,000, which amount shall be held by Lender as Additional Collateral pursuant to the terms of this Agreement.
(c) Borrower shall be permitted to sell, transfer, encumber, pledge or otherwise dispose of any portion of the Additional Collateral subject to the requirements of this subparagraph. The proceeds of any Additional Collateraly shall be invested in Collateral, Additional Collateral or, to the extent not included within the Additional Collateral, the Innisbrook Premises or held by Lender as Additional Collateral pursuant to arrangements reasonably acceptable to Lender, all as more particularly set forth in the Security Agreement. Provided no Event of Default or Potential Event of Default then exists hereunder, Xxxxxx shall execute any and all necessary release documents to evidence such release upon receipt by Lender of an Officer's Certificate certifying to Lender that (i) such property is being sold or, with respect to any Lender's Shares, pledged, to a third-party unrelated to Borrower or any affiliate of Borrower or any affiliate of any officer, director or employee of Borrower or any affiliate of Borrower, or if an affiliate, identifying the affiliate relationship, (ii) the transaction was undertaken in good faith and on an arm's length
18
basis, and (iii) the property is being sold or transferred for consideration that equals or exceeds eighty percent (80%) of the property's fair market value (ninety-five percent (95%) if the property is being sold to an affiliate). Without limiting the foregoing, in the event the Tamarron Property is sold or refinanced prior to the Release Date, the net proceeds therefrom, after repayment of the Permitted Exceptions, shall be considered Additional Collateral.
Xxxxxx's obligation to make the Loans and to perform the remainder of its obligations under this Agreement are expressly conditioned upon the occurrence of all of the following on or before the Termination Date:
3.1 Loan Documents. Xxxxxxxx's delivery to Lender of the following documents, in form and substance satisfactory to Lender, duly executed (and acknowledged where necessary) by the appropriate parties thereto:
(a) This Agreement;
(b) The Notes;
(c) The Deed of Trust, which shall be duly recorded in such Official Records as are acceptable to Xxxxxx;
(d) The Security Agreement, together with the Financing Statement which shall be duly filed in the Office of the Florida Secretary of State and the Office of the Colorado Secretary of State;
(e) The Assignment of Contracts and Permits;
(f) The Securities Purchase Agreement;
(g) The Pledge Agreement;
(h) The Payment and Performance Guaranty; and
(i) The Golf Hosts Guaranty.
3.2 Borrower's Deliveries. Borrower shall have delivered to or for the benefit of Lender, as the case may be, on or before the Closing Date, all other documents and other information required of Borrower pursuant to this Agreement.
3.3 Representations, Warranties and Covenants. All of Borrower's representations and warranties made in this Agreement shall be true and correct as of the Closing Date as if then made, and there shall have occurred no material adverse change in the condition or financial results of the operation of the Property since January 1, 1997. Borrower shall have performed all of its covenants and other obligations under this Agreement and Borrower shall have executed and delivered to Lender on the Closing Date a certificate dated as of the Closing Date to the foregoing effect in the form attached hereto as Exhibit O.
3.4 Title Insurance. The Title Company shall have delivered the Lender's Title Policy to Lender.
3.5 Title to Property. Lender shall have determined that Borrower is the sole owner of good and marketable fee simple title to the Real Property and to the Tangible Personal Property, free and clear of all liens, encumbrances, restrictions, conditions and agreements except for Permitted Exceptions as evidenced by issuance of the Lender's Title Policy.
19
3.6 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 condition acceptable to Lender.
3.7 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.
3.8 Liquor License. Borrower, or Borrower's nominee, shall possess all liquor licenses, alcoholic beverage licenses and other material Permits and Authorizations necessary to operate the restaurant, bars, snack shops and lounges presently located at the Property.
3.9 Partnership Agreement. Borrower shall have delivered to Lender a countersigned copy of the Partnership Agreement of Lender in a form prepared by Lender, which shall be in substantially the form attached hereto as Exhibit P.
3.10 Certification of Non-Foreign Status. Borrower shall have delivered to Lender a duly executed Certification of Non-Foreign Status.
3.11 Legal Opinions. Borrower shall have delivered to Lender a favorable opinion of Xxxxxxxx's Counsel in the form attached hereto as Exhibit H.
3.12 Satisfaction or Waiver of Conditions Precedent to Merger Agreement. Borrower shall provide Lender with written certification that each of the conditions precedent set forth in Article IX of the Merger Agreement have been satisfied or waived by Xxxxxxxx.
Each of the conditions and additional covenants contained in this Section are intended for the benefit of Lender and may be waived in whole or in part by Xxxxxx, but only by an instrument in writing signed by Xxxxxx.
ARTICLE IV
DISBURSEMENTS OF THE LOAN
4.1 Disbursement on Closing Date. Xxxxxx shall disburse Loan proceeds in the principal amount of Sixty-Nine Million Nine Hundred Seventy-Five Thousand Dollars ($69,975,000) on the Closing Date, together with Tranche I Capital Expenditures incurred prior to the Closing Date for improvements to the Sandpiper golf course.
4.2 Requests for Subsequent Disbursements of the Tranche I Loan. Borrower shall request disbursements of the Tranche I Loan for the Tranche I Capital Expenditures not more frequently than monthly and not closer together than fifteen (15) days after the date on which the immediately preceding disbursement request was submitted to Lender. Upon satisfaction of the following conditions precedent:
(a) Lender has received and approved true, correct and complete copies of all of the items listed in Part I of Exhibit G, including the Draw Request Documents; and
(b) Borrower shall have evidenced to Xxxxxx's reasonable satisfaction that the cost to complete the improvements to made with such disbursements, together with the undisbursed loan proceeds and any funds separately set aside by Borrower, are sufficient to complete such work:
(c) No Event of Default or Potential Default shall have occurred and be continuing; and
(d) Xxxxxx has received an endorsement or endorsements to the Lender's Title Policy reasonably satisfactory to the Lender in connection with the additional advance requested.
Lender shall disburse within ten (10) Business Days after receipt of the Draw Request Documents, the Loan disbursement of the Tranche I Loan requested by Xxxxxxxx therein; provided, however, that in no
20
event shall the aggregate amount disbursed by Lender pursuant to this Section 4.2 exceed Nine Million Dollars ($9,000,000).
4.3 Requests for Subsequent Disbursements of the Tranche II Loan. Borrower shall request disbursements of the Tranche II Loan in accordance with the procedures set forth in the Securities Purchase Agreement and upon satisfaction of the following conditions precedent:
(a) no Event of Default or Potential Default shall have occurred and be continuing; and
(b) Xxxxxx has received an endorsement or endorsements to the Lender's Title Policy reasonably satisfactory to the Lender in connection with the additional advance requested.
In no event shall the aggregate amount disbursed by Lender pursuant to this Section 4.3 exceed the Purchase Price for the Contingent Additional OP Units on the Conversion Date.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
To induce Xxxxxx to enter into this Agreement, Borrower hereby makes the following representations, warranties and covenants with respect to the Property, subject to the Warranty Disclosure Schedule attached hereto as Exhibit R, upon each of which Borrower acknowledges and agrees that Xxxxxx is entitled to rely and has relied:
5.1 Organization and Power. Borrower 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 Borrower hereunder.
5.2 Authorization and Execution. This Agreement has been, and each of the agreements and certificates of Borrower to be delivered to Lender on the Closing Date as provided in Article IV will be, duly authorized by all necessary action on the part of Borrower, has been duly executed and delivered by Borrower, constitutes the valid and binding agreement of Borrower and is enforceable against Borrower in accordance with its terms, subject, in each case, to applicable bankruptcy, insolvency, moratorium or similar laws in effect from time to time. There is no other person or entity whose consent is required in connection with Xxxxxxxx's performance of its obligations hereunder which consent has not been received or obtained. All action required pursuant to this Agreement necessary to effectuate the transactions contemplated herein has been, or will on the Closing Date be, taken promptly and in good faith by Borrower and its representatives and agents.
5.3 Noncontravention. The execution and delivery of, and the performance by Borrower of its obligations under, this Agreement do not and will not contravene, or constitute a default under, any provision of applicable law or regulation, Borrower's Organizational Documents or any agreement, judgment, injunction, order, decree or other instrument binding upon Borrower, or result in the creation of any lien or other encumbrance on any asset of Borrower other than as set forth in this Agreement or which otherwise have no material adverse effect on the use and operation of the Property. There are no outstanding agreements (written or oral) pursuant to which Borrower (or any predecessor to or representative of Borrower) has agreed to contribute or has granted an option or right of first refusal to purchase the Property or any part thereof (other than in favor of Xxxxxx as set forth in Article XI). There are no purchase contracts, options or other agreements of any kind, written or oral, recorded or unrecorded, whereby any person or entity other than Borrower 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 except as set forth on the Lender's Title Policy or which otherwise have no material adverse effect on the use and operation of the Property. There are no
21
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 other than as set forth in this Agreement or which otherwise have no material adverse effect on the use and operation of the Property.
5.4 No Special Taxes. Borrower 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 Lender's Title Policy. To the best of Xxxxxxxx's knowledge, there is not any proposed increase in the assessed valuation of the Real Property for tax purposes.
5.5 Compliance with Existing Laws. Borrower 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, except where the failure to possess such Authorizations would not have a material adverse effect on the operations of the Property. Borrower has not misrepresented or failed to disclose any material relevant fact in obtaining all Authorizations, and Xxxxxxxx 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. Xxxxxxxx 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. Borrower has no knowledge, nor has it received notice within the past three years, of any material 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 material repairs or alterations other than those that have been made prior to the date hereof which might have a material adverse effect on the ownership or operation of the Property.
5.6 Real Property. To the best of Borrower's knowledge, (i) the Improvements conform in all material 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 Borrower 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. Borrower has not received any written notice which is still in effect that there is, and, to the best of Borrower's knowledge, there does not exist, any material 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.
5.7 Personal Property. All of the Tangible Personal Property and Intangible Personal Property being conveyed by Borrower to Lender is free and clear of all liens and encumbrances on the Closing Date, other than liens and encumbrances specifically permitted by this Agreement, and Borrower has good, merchantable title thereto and the right to convey same in accordance with the terms of this Agreement.
5.8 Warranties and Guaranties. Borrower shall not before or after the Closing Date, release or materially modify in a manner adverse to Borrower 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 Lender.
5.9 Insurance. All of Borrower'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 Borrower on or before the due date therefor. Borrower shall
22
pay all premiums on, and shall not cancel or voluntarily allow to expire, any of Borrower'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. Borrower 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 the requirements of Section 7.1.
5.10 Condemnation Proceedings; Roadways. Xxxxxxxx has received no notice of any condemnation or eminent domain proceeding pending or threatened against the Property or any part thereof. Borrower 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 Property which would materially adversely affect the Property. To the best of Borrower's knowledge, no fact or condition exists which would result in the termination or material impairment of access to the Property from adjoining public or private streets or ways or which could result in discontinuation of presently available or otherwise necessary sewer, water, electric, gas, telephone or other utilities or services.
5.11 Litigation. Except as disclosed in writing to Borrower, there is no action, suit or proceeding pending or known to be threatened against or affecting Borrower or any of its properties in any court, before any arbitrator or before or by any federal state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign which reasonably could be expected to (a) in any manner raise any question affecting the validity or enforceability of this Agreement or any other agreement executed in connection herewith, (b) materially and adversely affect the business, financial position or results of operations of Borrower, (c) materially and adversely affect the ability of Borrower to perform its obligations hereunder, or under any document to be delivered pursuant hereto, (d) create a lien on the Property, any part thereof or any interest therein in violation of the terms of this Agreement, (e) otherwise adversely materially affect the Property, any part thereof or any interest therein or the use, operation, condition or occupancy thereof.
5.12 Labor Disputes and Agreements. There are no labor disputes pending or, to the best of Xxxxxxxx's knowledge, threatened as to the operation or maintenance of the Property or any part thereof which could reasonably be expected to adversely materially affect the Property, any part thereof or any interest therein or the use, operation, condition or occupancy thereof. Borrower 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. Borrower is not a party to any employment contracts or agreements, other than the Employment Agreements, and Borrower will not, between the date hereof and the Closing Date, enter into any new employment contracts or agreements, amend any existing Employment Agreement, except in the ordinary course of the operations of the Property. To the best of Xxxxxxxx's knowledge, Xxxxxxxx has complied with the requirements of the federal Immigration and Reform Control Act respecting the employment of undocumented workers.
5.13 Financial Information. To the best of Xxxxxxxx's knowledge, all of Xxxxxxxx's financial information, including all books and records and financial statements, is correct and complete in all material respects and presents and will present accurately the results of the operations of the Property for the periods indicated.
5.14 Organizational Documents. Borrower'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.
5.15 Land Use. The current use and occupancy of the Property for golfing, hospitality and all other related purposes (including the sale of merchandise and food and beverages) do not require any special use permit, special exception or other special permit, permission or consent which has not been
23
obtained, and Borrower is not aware of any proposal to change or restrict such use. Borrower has all necessary certificates of occupancy or completion to operate the Property as presently operated.
5.16 Hazardous Materials. Except as may be disclosed in the Phase I environmental assessment report for the Property, to the best of Borrower's knowledge, (i) no Hazardous Materials are located on (except in immaterial amounts used in the ordinary course for the operation or maintenance of the Property by Borrower 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 except in accordance with applicable law; and (ii) no underground storage tanks are located at the Property except in accordance with applicable law. To the best of Xxxxxxxx'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.
5.17 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 material compliance with all applicable governmental and environmental protection authorities' laws, rules, regulations and requirements.
5.18 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.
5.19 Leased Property. The Personal Property identified on Exhibit S is all of the material 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. To the best of Xxxxxxxx's knowledge, all leases of such property are in good standing and free from any material default.
5.20 Defects and Hazards. Borrower does not know of any defects, facts or conditions affecting the Real Property that would make it unsuitable for the use contemplated hereunder or of any earth movement or slippage affecting the Real Property.
5.21 Principal Place of Business. Xxxxxxxx's principal place of business is in the State of Florida at the address set forth in the preamble hereof. Borrower does not do business under any trade name or fictitious business names other than Golf Hosts, Inc., Golf Host Resorts, Inc., Golf Host Development, Inc. and Golf Host Securities, Inc.
5.22 Single Purpose Entity. Borrower (a) shall not engage, directly or indirectly, in any business or venture other than the ownership of the Property and (b) is not and shall not become liable on any guaranty for the obligations of another person or entity and has not pledged any of its assets except pursuant to or permitted by the Loan Documents. Borrower shall maintain and preserve its respective existence and all rights and franchises material to its business. Prior to the release of the Additional Collateral, Borrower shall evidence that the property to be released shall thereafter be owned and operated by a legal entity separate and apart from Borrower.
5.23 Removal of Collateral. Except as otherwise provided herein and as provided in the Annual Budget, the Tangible Property will be kept on or at the Real Property and Borrower will not, without the prior written consent of Lender, remove any material portion of the Collateral therefrom except such portions or items of Collateral which are consumed or worn out in ordinary usage, all of which shall be promptly replaced by Borrower with collateral of similar nature and of equal or greater value.
24
5.24 Rights in Escrow Account. Borrower shall grant, or cause to be granted, to Lender, to the extent permitted by law, a perfected first lien security interest in the rights of Borrower or Borrower's Affiliate, into the proceeds payable, if any, to Borrower or Borrower's Affiliate under the Escrow Account, as such term is defined in the Merger Agreement; provided Lender acknowledges and agrees that such right shall be subordinate and subject to the rights of the parties to the escrow, including the escrow holder.
5.25 Notices Under Merger Agreement. From and after the date hereof Borrower shall deliver to lender copies of all written notices given by or to Borrower (or Golf Hosts, Inc.) under the Merger Agreement promptly, but in no event later than Ten (10) Business Days of the date such notices are received or sent.
Each of the representations, warranties and covenants contained in this Article III are intended for the benefit of Lender. Each of said representations, warranties and covenants shall survive the Closing Date. No investigation, audit, inspection, review or the like conducted by or on behalf of Lender shall be deemed to terminate the effect of any such representations, warranties and covenants, it being understood that Xxxxxx has the right to rely thereon and that each such representation, warranty and covenant constitutes a material inducement to Lender to execute this Agreement and to close the transaction contemplated hereby
ARTICLE VI
COVENANTS OF BORROWER
As an inducement to Lender to execute this Agreement and to make each disbursement of the Loan, Borrower hereby covenants as set forth in this Article VI.
6.1 Obligation to Withhold Distributions. If the ratio of (a) the Net Operating Income (after payment of any required deposit into the Capital Replacement Fund) for the Innisbrook Property to (b) Debt Service falls below 1.20 to 1.00, at any time following the release of any Pledged Lender's Shares (or securities held by Lender in lieu thereof), then Borrower shall thereafter retain, and not make dividends or distributions (except as may be necessary to pay any applicable taxes attributable to the income of Borrower) to its shareholders, partners or members, as applicable, until such time as Borrower has accumulated six (6) months of Base Interest at the then current level. Such accumulated Base Interest shall be maintained at all times until Borrower has again maintained such coverage ratios for two (2) consecutive Fiscal Years. Borrower shall provide Lender with such documentation, including Officer's Certificates, within forty-five (45) days after the end of each Fiscal Quarter as are necessary to establish Borrower's compliance with the foregoing requirements.
(a) Payment of Impositions. Borrower 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 Xxxxxxxx's right of contest pursuant to the provisions of Section 6.12. Upon request, Borrower shall promptly furnish to Lender copies of official receipts, if available, or other satisfactory proof evidencing such payments, such as cancelled checks.
(b) Information and Reporting. Lender shall give prompt notice to Borrower of all Impositions payable by Borrower hereunder of which Xxxxxx at any time has actual knowledge, but Xxxxxx's failure to give any such notice shall in no way diminish Xxxxxxxx's obligations hereunder to pay such Impositions. Lender and Borrower 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 Agreement as personal
25
property, Borrower 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.
(c) Refunds. If any refund shall be due from any taxing authority in respect of any Imposition paid by Xxxxxxxx, the same shall be paid over to or retained by Borrower if no Event of Default shall have occurred hereunder and be continuing. Any such funds retained by Lender due to an Event of Default shall be applied to the obligations of Borrower to Lender in such order as Lender may elect in its sole discretion.
(d) Utility Charges. Borrower shall pay or cause to be paid prior to delinquency charges for all utilities and services, including electricity, telephone, trash disposal, gas, oil, water, sewer, communication and all other utilities used in the Property during the Term.
(e) Assessment Districts. Borrower shall not voluntarily consent to or agree in writing to (i) any special assessment or (ii) the inclusion of any material portion of the Property into a special assessment district or other taxing jurisdiction unless Lender shall have consented thereto, which consent shall not be unreasonably withheld or delayed, or unless Borrower agrees to pay the cost thereof prior to the Maturity Date.
6.3 Maintenance of the Collateral.
(a) Maintenance of Property. Borrower shall maintain all of the Property necessary for the operation of Borrower's business, whether now existing or hereafter acquired by Borrower, in good condition and repair, normal wear and tear excepted. Upon the loss, destruction or obsolescence of any Tangible Personal Property, Borrower shall replace such property with replacements of the same type and quality as initially in place. If any of such Tangible Personal Property is stored away from the Property, Borrower will provide Lender with proper access to the storage facility.
(b) Xxxxxxxx's Obligations. Borrower shall provide and maintain, or cause to be provided and maintained, during the Term, 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, and (c) the requirements of this Agreement.
(a) Use. After the Closing Date and during the Term, Borrower shall use or cause to be used the Property and the Improvements for its Primary Intended Use and shall operate the Property to maximize its long-term value. Borrower shall not use the Property or any portion thereof for any other use without the prior written consent of Lender, in Xxxxxx'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 Borrower 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. Borrower 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. Lender specifically consents to the proposed reconfiguration of the existing holes adjacent to one of the driving ranges at the Innisbrook Property and the construction of condominiums, homesites or homes, all as more particularly described on Exhibit Q attached hereto. In addition, Borrower shall have the right to relocate or reconfigure or eliminate the existing Island Course driving range
26
at the Innisbrook Property provided the same does not adversely affect the long-term value of the Innisbrook Property.
(b) Specific Prohibited Uses. Borrower 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) cause structural injury to any of the Improvements or (iii) constitute a public or private nuisance or waste. Borrower 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). Borrower shall not allow the Property to be used as a landfill or a waste disposal site, or a manufacturing, distribution or disposal facility for any Hazardous Materials. Borrower shall neither suffer nor permit the Property or any portion thereof to be used in such a manner as (i) might reasonably tend to impair Xxxxxx'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.
(c) Membership Sales. Borrower shall not sell and/or classify or reclassify memberships, or set initiation fees or other charges which results in a reduction in the individual membership dues payable by members at the Innisbrook Property without the consent of the Lender, which consent shall not be unreasonably withheld or delayed. In addition, Borrower shall not materially increase the number of golfing memberships in any calendar year at the Innisbrook Property if such sales would diminish the long-term value of the Property.
(d) Grant of Easements, Etc. Borrower may, from time to time, so long as no Event of Default has occurred and is continuing, at Borrower's cost and expense: (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 Lender of an Officer's Certificate (which Officer's Certificate, if contested by Lender, shall not be binding on Lender) stating that such grant, release, dedication, transfer, petition or amendment is not detrimental to the proper conduct of the business of Borrower on the Property and does not materially reduce its value or usefulness for the Primary Intended Use. Borrower shall not grant, release, dedicate or execute any of the foregoing items in this Section 6.4(d) without obtaining Xxxxxx's prior written approval, which approval shall not be unreasonably withheld or delayed; provided no such approvals shall be required for Borrower to grant easements in the normal course of operations and which do not materially adversely affect the value of the Property.
(e) Borrower's Additional Covenants as to Use. Borrower shall (a) join the Advisory Association and cooperate in the reasonable activities of such association; and (b) at its election, engage in reasonable cross-marketing endeavors with the members of the Advisory Association.
27
(a) Remediation. If Borrower 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 any portion of the Property or if Borrower, Lender, or any portion of 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 any portion of the Property, Borrower shall, at its sole expense, but subject to the last sentence of Section 6.5(b), carry out and complete any required investigation, removal, remediation, repair, closure, detoxification, decontamination or other cleanup of the Property. If Borrower fails to implement and diligently pursue any such repair, closure, detoxification, decontamination or other cleanup of the Property in a timely manner, Lender shall have the right, but not the obligation, to carry out such action and to recover its costs and expenses therefor from Borrower as Additional Charges.
(b) Xxxxxxxx's Indemnification of Lender. Borrower shall pay, protect, indemnify, save, hold harmless and defend Lender, the Company, Affiliates of the Company and Lender (including their respective officers, directors and controlling persons), and any Lender Assignee (collectively, the "Lender Indemnitees") 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 Lender or any other Lender Indemnitee 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 Borrower, 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 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 of this Agreement. Notwithstanding the foregoing or any other provision of this Agreement (including Section 6.5(d) and Article 12), Borrower shall not be liable, or otherwise be required to indemnify Lender or any Lender Indemnitee for any matters or events that arise after the Closing Date that are caused by a breach by Lender of the terms of this Agreement.
(c) Survival of Indemnification Obligations. Borrower's obligations and/or liability under this Section 6.5 arising during the Term shall survive any termination of this Agreement.
(d) Environmental Violations at Expiration or Termination of Agreement. Notwithstanding any other provision of this Agreement (except the last sentence of Section 6.5(b)), if, at a time when the Term would otherwise terminate or expire, a violation of any Environmental Law has been asserted by Lender and has not been resolved in a manner reasonably satisfactory to Lender, or has been acknowledged by Borrower to exist or has been found to exist at the Property or has been asserted by any governmental authority and Xxxxxxxx's failure to have completed all action required to correct, xxxxx or remediate such a violation of any Environmental Law materially impairs the value or leaseability of the Property upon the expiration of the Term, then, at the option of Lender, the Purchase Option shall be automatically extended with respect to the Property beyond the date of termination or expiration 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.
28
(e) Environmental Statements. Immediately upon Borrower'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, Borrower shall notify Lender 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 Borrower 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.
(a) Xxxxxxxx's Obligations. Borrower, 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 Borrower'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 in Article VII, 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 Closing Date (concealed or otherwise). Borrower shall maintain the Property in accordance with the maintenance practices of the Property at the Closing Date and otherwise in a manner comparable to other comparable golf courses (including the related resort and conference facilities) in the vicinity of the Property. Lender may consult with the Advisory Association from time to time with respect to Borrower's compliance with its maintenance and operation obligations under this Section 6.6(a), and Lender 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 Lender, in consultation with the Advisory Association, determines that Borrower has failed to comply with its maintenance obligations under this Section 6.6(a), Lender shall provide written notice to Borrower setting forth a list of remedial work and/or steps to be performed by Xxxxxxxx. Borrower shall promptly and diligently perform such remedial work and/or steps as recommended by Xxxxxx, provided if Borrower objects to one or more of the remedial obligations proposed by Xxxxxx, then the matter shall be submitted to the dispute resolution procedure set forth in Article XIII. Borrower 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. In no event shall Borrower be deemed to be in violation of this Section 6.6(a) if Borrower has requested that Lender disburse available funds from the Capital Replacement Reserve to cure such default by making capital repairs, improvements or replacements and Lender has not consented to such disbursement.
(b) Xxxxxxxx's Liens. Nothing contained in this Agreement and no action or inaction by Lender shall be construed as (i) constituting the consent or request of Xxxxxx 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 Borrower 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 would permit the making of any claim against Lender 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 Lender in the Property, or any portion thereof.
29
6.7 Borrower's Right to Modify Property.
(a) Xxxxxxxx's Right to Construct. Subject to the prior written approval of Lender in its reasonable discretion, during the Term Borrower may make alterations, additions, changes and/or improvements to the Innisbrook Property (individually, a "Borrower Improvement," and collectively, "Borrower Improvements"), provided any Borrower Improvements costing $250,000 or less shall not require the approval of Lender. Any such Borrower Improvement shall be made at Borrower's sole expense and shall not affect Lender's option to purchase the Innisbrook Property pursuant to the terms of Article XI. Unless made on an emergency basis to prevent injury to Person or property, Borrower will submit plans and specifications for any Borrower Improvements, in the form necessary for any required building permits, to Lender for Xxxxxx's prior written approval, such approval not to be unreasonably withheld or delayed and shall not be withheld so long as such alterations, additions, changes and/or improvements do not have a material adverse affect on the value of the Innisbrook Property. Borrower shall not modify any of the Additional Collateral so as to materially diminish the value thereof or materially diminish the value of the Innisbrook Property. Borrower may make alterations, additions, changes and/or improvements to the Tamarron Property without the written consent of Lender, provided that such alterations do not materially diminish the value of the Tamarron Property.
Upon approval by Xxxxxx:
(i) Borrower shall diligently seek all governmental approvals and any other necessary private approvals (e.g., ground lessor, mortgagee, etc.) relating to the construction of any Borrower Improvement; and
(ii) once Borrower begins the construction of any Borrower Improvement, Borrower shall diligently prosecute any such Borrower 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
(iii) Borrower shall not suffer or permit any mechanics' liens exceeding Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate at any one time to exist against the Property (and with respect to such liens will cause them to be removed of record or bonded over not less than thirty (30) days prior to any scheduled foreclosure pursuant to such lien) or suffer or permit any other claims or demands arising from the work of construction of any Borrower Improvement to be enforced against the Property or any part thereof, and Xxxxxxxx agrees to hold Xxxxxx 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
(iv) all work shall be performed in a good and workmanlike manner.
(b) Scope of Right. Subject to Section 6.7(a), at Borrower's cost and expense, Borrower shall have the right to:
(i) seek any governmental approvals, including building permits, licenses, conditional use permits and any certificates of need that Borrower requires to construct any Borrower Improvement;
(ii) erect upon the Property such Borrower Improvements as Borrower deems desirable; and
(iii) engage in any other lawful activities that Borrower determines are necessary or desirable for the development of the Property in accordance with its Primary Intended Use.
30
Xxxxxx 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 Xxxxxx's interest from mechanics' liens, materialmen's liens or liens of a similar nature.
6.8 Xxxxxx's Right to Audit Calculation of Gross Revenue. Lender, 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 2.3(d) for a period of five (5) years from receipt of such Officer's Certificate and in connection with such audits to examine Xxxxxxxx's book and records with respect thereto (including supporting data, sales tax returns and Xxxxxxxx's work papers). If any such audit discloses a deficiency in the payment of Participating Interest, Borrower shall forthwith pay to Lender the amount of the deficiency as finally agreed or determined, together with interest on such amount 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 Revenue for any Fiscal Year is reported by Borrower to Lender in the Officer's Certificate, the deficiency, if any, with respect to such Gross 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 Borrower. If any such audit discloses that the Gross Revenue actually received by Borrower for any Fiscal Year exceeds the Gross Revenue reported by Borrower in the Officer's Certificate by more than two percent (2%), then Borrower shall pay all reasonable costs of such audit and examination; provided Borrower shall have the right to submit the audit determination to arbitration in accordance with the procedures set forth in Article XIII. Xxxxxx shall also have the right to review and audit from time to time Xxxxxxxx's business operations including all books, records and financial statements of Borrower. Borrower shall promptly provide to Lender copies of all such books, records, financial statements or any other documentation of Xxxxxxxx's business operations reasonably requested by Xxxxxx. Lender shall keep confidential the contents of such books, records, financial statements and other documentations, provided Xxxxxx shall be permitted to disclose the foregoing to its attorneys, accountants and advisors who agree to maintain the confidentiality of such information, and shall also be permitted to disclose the foregoing as may be necessary or appropriate in any public filings of the Company or GTA, Inc. or in any litigation proceedings.
6.9 Annual Budget. Not later than forty-five (45) days prior to the commencement of each Fiscal Year, Borrower shall prepare and submit to Lender an operating budget (the "Operating Budget") and a capital budget (the "Capital Budget") prepared in accordance with the requirements of this Section 6.9. The Operating Budget and the Capital Budget (together, the "Annual Budget") shall be prepared in a form approved by Lender for use throughout the Term and show by quarter and for the year as a whole the following:
(a) Borrower's reasonable estimate of Gross Revenue and Gross Expenses itemized on schedules on a quarterly basis as approved by Xxxxxx and Borrower, together with assumptions, in narrative form, forming the basis of such schedules.
(b) An estimate of any amounts Lender will be requested to fund for Capital Expenditures during the next two Fiscal Years, subject to the limitations set forth in Article IX.
(c) A cash flow projection.
(d) A narrative description of any anticipated significant events, including, if requested by Xxxxxx, 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) Borrower's reasonable estimate for each Fiscal Quarter of the Participating Interest to be paid for such quarter.
31
Lender shall have thirty (30) days after the date on which it receives the Annual Budget to review, approve or disapprove the Annual Budget, which approval shall not be withheld so long as such Annual Budget is reasonably designed to enhance the long-term value of the Innisbrook Property. If the parties are not able to reach agreement on the Annual Budget for any Fiscal Year during Xxxxxx'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 Xxxxxx and Borrower 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 6.9, 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 Borrower 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. In resolving such dispute the committee shall base its determination on whether the Annual Budget is reasonably designed to enhance the long-term value of the Innisbrook Property. 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 Lender or are otherwise required to comply with Legal Requirements or Insurance Requirements. Borrower shall operate the Property in a manner reasonably consistent with the Annual Budget. For purposes of 1997, the Annual Budget and the Operating Budget shall be the Budget attached hereto as Exhibit E, provided such Budget shall be updated by Borrower and approved by Lender not later than forty-five (45) days following the Closing Date.
(f) During the period in which the Innisbrook Property is being managed by Westin Hotel Company pursuant to the Westin Management Agreement, the Annual Budget and the Operating Budget shall be determined in accordance with the provisions of Section 2.3 and 2.4 of the Westin Management Agreement; provided Lender and Westin Hotel Company shall enter into a separate agreement respecting their respective rights.
(a) Borrower 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 Participating Interest, and Borrower 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 Participating Interest. The books of account and all other records relating to or reflecting the operation of the Property shall be kept at either the Property, Xxxxxxxx's offices or Westin's offices at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000. Such books and records shall be available to Lender and its representatives for examination, audit, inspection and transcription.
(b) Borrower shall furnish to Lender 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, a balance sheet, statements of cash flows and statement of changes in owner's equity. If Lender requests, Borrower shall provide reviewed financial statements for such Fiscal Quarter at Borrower'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,
32
together with, if appropriate a revised Annual Budget, which budget shall be subject to Lender's review and approval as provided in Section 6.9. Each quarterly report shall also forecast any projected Participating Interest payable for the following Fiscal Quarter.
(c) For each Fiscal Year, Borrower shall deliver to Lender within seventy-five (75) days of the end of such Fiscal Year financial statements prepared in accordance with GAAP and audited by any nationally recognized independent accounting firm licensed to practice in front of the Securities and Exchange Commission.
(d) If requested by Xxxxxx, Borrower will make available to Lender and the Company and their respective lenders, underwriters, counsel, accountants and advisors such additional information and financial statements with respect to Borrower and the Property as Lender may reasonably request without any additional cost to Borrower, and Borrower agrees to reasonably cooperate with Lender and the Company in effecting public or private debt or equity financings by the Lender or the Company, without any additional cost to Borrower, modifications to this Agreement or the requirement of additional collateral from Borrower.
6.11 Liens, Encroachments and Other Title Matters.
(a) Liens. Subject to the provisions of Section 6.12 relating to permitted contests, Borrower 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, claim or encumbrance emanating from Xxxxxxxx's actions or negligence, not including, however:
(i) this Agreement and other liens permitted by the Loan Documents;
(ii) the matters, if any, that existed as of the Closing Date, as set forth on the title policy received (and approved in its sole discretion) by Xxxxxx;
(iii) restrictions, liens and other encumbrances which are consented to in writing by Xxxxxx, or any easements granted pursuant to the provisions of Section 6.4(d) of this Agreement;
(iv) liens for those taxes of Lender which Xxxxxxxx is not required to pay hereunder;
(v) leases or licenses permitted by Article XII;
(vi) liens for Impositions or for sums resulting from noncompliance with Legal Requirements so long as such liens are in the process of being contested as permitted by Section 6.12;
(vii) 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 Section 6.12) or not yet due; and
(viii) the mortgage lien on the Tamarron Property to secure the obligations of Golf Hosts, Inc. under the Escrow Agreement and the obligations of Borrower with respect to additional improvements which may be made in the future.
(b) Encroachments and Other Title Matters. Excepting any matters granted or created by Lender after the Closing 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
33
of any oil, gas, water or other minerals, then promptly upon request of Lender or at the behest of any person affected by any such encroachment, violation or impairment, Borrower, 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 Lender, the Company and any other Lender Indemnitee from and against all losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including 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 Lender or Borrower; or (ii) make such changes in the Improvements, and take such other actions, as Borrower 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. Borrower's obligation under this Section 6.11 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 Borrower shall be entitled to a credit for any sums recovered by Lender under any such policy of title or other insurance.
(c) Survey. Borrower shall, promptly following the Closing Date, undertake to provide Lender with an ALTA/ACSM survey of the Innisbrook Premises with such certifications as Lender shall reasonably require.
(a) Authorization. Borrower 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 6.11(a); provided, however, that nothing in this Section 6.12 shall limit the right of Lender 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 Borrower shall reasonably cooperate with Lender with respect to such contest), and, further provided that:
(i) 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 Lender and from the Property, and neither the Property nor any income 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;
(ii) in the case of a Legal Requirement, Xxxxxx 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 6.12(a)(ii), however, shall permit Borrower 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;
(iii) in the case of a Legal Requirement and/or an Imposition, lien, encumbrance or charge, Borrower shall give such reasonable security, if any, as may be demanded by Lender to insure ultimate payment of the same and to prevent any sale or forfeiture of the affected Property or the Interest by reason of such non-payment or noncompliance, provided, however,
34
the provisions of this Section 6.12 shall not be construed to permit Borrower to contest the payment of Interest or any other sums payable by Xxxxxxxx to Lender hereunder;
(iv) no such contest shall interfere in any material respect with the use or occupancy of the Property;
(v) in the case of an Insurance Requirement, the coverage required by Article VII shall be maintained; and
(vi) if such contest be finally resolved against Lender or Borrower, Borrower 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.
(b) Indemnification of Lender. If Lender so desires, Lender shall be permitted to join as a party in any contest permitted pursuant to this Section 6.12. Borrower shall indemnify and save Lender harmless against any liability, cost or expense of any kind that may be imposed upon Lender in connection with any such contest and any loss resulting therefrom.
6.13 Legal Requirements. Subject to Section 6.12 regarding permitted contests, Borrower, 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 material licenses and other authorizations required for any use of the Property then being made, and for the proper erection, installation, operation and maintenance of the Property or any party thereof.
6.14 Actions Affecting Property. Borrower shall give Lender prompt written notice of the assertion of any claim with respect to, or the filing of any action or proceeding purporting to affect the Property, any of the Loan Documents or the rights or powers of Lender. Borrower shall appear in and contest any such action or proceeding and shall pay all costs and expenses, including cost of evidence of title and attorneys' fees, in any such action or proceeding in which Lender may appear.
6.15 Material Agreements. Xxxxxxxx agrees not to terminate or materially modify the Master Lease or the Westin Management Agreement or any interest therein without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed. Any subsequent manager of the Innisbrook Property shall be a first-class upscale hotel operator with relevant experience in the operation and management of first-class golf facilities. Consent to one amendment, change, agreement or modification shall not be deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. Borrower shall perform all obligations and agreements under the Master Lease and the Westin Management Agreement and shall not take any action or omit to take any action which would effect or permit the termination of any of said agreements. Borrower shall promptly notify Lender in writing with respect to any default or alleged default by any party thereto and to deliver to Lender copies of all notices, demands, complaints or other communications received or given by Borrower with respect to any such default or alleged default. Lender shall have the option, but no obligation, to cure any such default and to perform any or all of Borrower's obligations thereunder. All sums expended by Lender in curing any such default shall be secured by the Loan Documents and shall be immediately due and payable without demand or notice and shall bear interest from date of expenditure at the Overdue Rate.
35
6.16 Lender Inspections. At any time that any material Capital Expenditure individually in excess of $100,000 is being incurred during the Term, during normal business hours, Borrower shall permit Lender and Xxxxxx's representatives, inspectors and consultants to enter upon the Real Property, to inspect any construction and materials to be used therein and to examine all contracts, records, plans and shop drawings which are kept at the construction site or at Borrower's offices. Lender shall keep confidential the information obtained from such inspections, provided Lender shall be permitted to disclose such information to its attorneys, accountants and advisors who agree to maintain the confidentiality of such information, and shall also be permitted to disclose such information as may be necessary or appropriate in any public filing of the Company or GTA, Inc. or in any litigation proceedings.
6.17 Trade Names. Xxxxxxxx shall immediately notify Lender in writing of any change in the place of business of, or the change in the legal, trade or fictitious business names used by, Borrower, any of its constituent general partners or Guarantor and shall, upon Xxxxxx's request, execute any additional financing statements and other certificates necessary to reflect any change in trade names or fictitious business names.
6.18 Officer's Certificates. At any time, and from time to time upon Xxxxxxxx's receipt of not less than ten (10) days' prior written request by Xxxxxx, Borrower will furnish to Lender an Officer's Certificate certifying that:
(a) this Agreement is unmodified and in full force and effect (or that this Agreement is in full force and effect as modified and setting forth the modifications);
(b) the dates to which the Interest has been paid;
(c) whether or not to the best knowledge of Borrower, Lender is in default in the performance of any covenant, agreement or condition contained in this Agreement and, if so, specifying each such default of which Borrower may have knowledge;
(d) that, except as otherwise specified, there are no proceedings pending or, to the knowledge of the signatory, threatened, against Borrower before or by any court or administrative agency which, if adversely decided, would materially and adversely affect the financial condition and operations of Borrower; and
(e) responding to such other questions or statements of fact as Lender shall reasonably request.
Xxxxxxxx's failure to deliver such Officer's Certificate within such time shall constitute an acknowledgement by Borrower that this Agreement is unmodified and in full force and effect except as may be represented to the contrary by Xxxxxx, Lender is not in default in the performance of any covenant, agreement or condition contained in this Agreement 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 6.18 may be relied upon by Lender and any prospective lender or purchaser.
6.19 Protective Advances. If Borrower shall at any time fail to perform or comply with any of the terms, covenants and conditions required on Borrower's part to be performed and complied with under this Agreement, any of the other Loan Documents or any other agreement that, under the terms of this Agreement, Borrower is required to perform, then Lender, without waiving or releasing Borrower from any of its obligations hereunder, may, in its sole discretion upon ten (10) days prior written notice to Borrower (except in an emergency in which case no notice shall be required):
(a) make any payments hereunder or thereunder payable by Xxxxxxxx and take out, pay for and maintain any of the insurance policies provided for herein; and/or
36
(b) after the expiration of any applicable grace period and subject to Xxxxxxxx's rights to contest certain obligations specifically granted hereby, perform any such other acts hereunder or thereunder on the part of Borrower to be performed and enter upon the Property for such purpose; and/or
(c) perform any act in such manner and to such extent as Lender may deem necessary to protect the security hereof, Lender being authorized to enter upon the Property for such purpose; appear in and defend any action or proceeding purporting to affect, in any manner whatsoever, the obligations of Borrower hereunder, the security therefor or the rights or powers of Lender; pay, purchase or compromise any encumbrance, charge or lien that in the judgment of Lender is prior or superior to any mortgage granted Lender.
All sums so paid out of Xxxxxx's own funds and all reasonable out-of-pocket costs and expenses incurred and paid by Lender in connection with the performance of any such act, including, without limitation, attorneys' fees and any allocated costs of in-house counsel (provided such services are not redundant with the services of any outside counsel), together with interest on unpaid balances thereof at the Overdue Rate from the respective dates of Lender's making of each such payment, shall be added to the principal of the Note, shall be secured by the Loan Documents and by the lien of any mortgage granted Lender, prior to any right, title or interest in or claim upon the Property attaching or accruing subsequent to the lien of any mortgage or security interest granted Xxxxxx and shall be payable by Borrower to Lender on demand.
6.20 Reporting of Original Issue Discount. Xxxxxxxx agrees that it will report for purposes of calculating original issue discount interest accruing at an annual rate of 11.5% for the term of the Loan.
7.1 General Insurance Requirements. During the Term, Borrower shall at all times keep the Property, and all property located in or on the Property, including any Borrower Improvements, insured with the kinds and amounts of insurance described below. Lender and Xxxxxxxx acknowledge that the Condominiums are not owned by Borrower and, except as may be set forth in the Master Lease, Borrower shall have no obligation pursuant to this Agreement or the other Loan Documents to insure and/or rebuild the Condominiums following any damage or destruction. 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 7.5 of this Agreement. The policies must name Xxxxxx as an additional insured or loss payee, as applicable, by way of a standard form of mortgagee's loss payable endorsement. Losses shall be payable to Lender and/or Borrower as provided in this Article VII. In addition, the policies shall name as a loss payee any Lender Assignee by way of a standard form of mortgagee's loss payable endorsement. Any loss adjustment in excess of $250,000 shall require the written consent of Lender, Borrower, and each Lender Assignee, if any. Evidence of insurance shall be deposited with Lender and, if requested, with any Lender Assignee(s). The policies on the Property, including the Improvements, Fixtures, Tangible and Intangible Personal Property and any Borrower 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.
37
(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, Borrower 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 Borrower shall give Lender written notice thereof prior to cancelling or not obtaining any flood insurance. Borrower may opt to insure the structures only, and not the Land, subject to the approval of Xxxxxx, in Xxxxxx's reasonable discretion.
(d) Worker's Compensation. Adequate worker's compensation insurance coverage for all Persons employed by Borrower on the Property in accordance with the requirements of applicable federal, state and local laws. Borrower 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 Lender, in Lender's sole and absolute discretion.
7.2 Other Insurance. Such other insurance on or in connection with any of the Property as Lender or any Lender Assignee may reasonably require, which at the time is usual and commonly obtained in connection with properties similar in type of building size and use to the Property and located in the geographic area where the Property is located.
7.3 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 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 Borrower shall forthwith increase, or may decrease, the amount of the insurance carried pursuant to this Section 7.3, 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.
7.4 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 Lender Assignee). 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.
7.5 Form Satisfactory, Etc. All of the policies of insurance referred to in this Article VII shall be written in a form reasonably satisfactory to Lender and by insurance companies rated not less than B+, XI by A.M. Best's Insurance Guide. Borrower shall pay all premiums for the policies of insurance referred to in Sections 7.1 and 7.2 and shall deliver certificates thereof to Lender 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 Borrower fails to satisfy its obligations under this Article VII, Lender shall be entitled, but shall have no obligation, to effect such insurance and pay the premiums therefor, which premiums shall be repayable to Lender upon written demand as Additional Charges. Each insurer issuing policies pursuant to this Article VII shall agree, by endorsement on the policy or policies issued by it, or by independent instrument furnished to Lender, that it will give to Lender 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 Lender or Borrower which might, absent such
38
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 permitted by the provisions of such policy, (iii) any foreclosure or other action or proceeding taken by any Lender Assignee 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.
7.6 Change in Limits. In the event that Lender shall at any time reasonably determine on the basis of prudent industry practice that the liability insurance carried by Borrower pursuant to Sections 7.1 and 7.2 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 VII; provided, however, that the deductibles for such insurance or the amount of such insurance which is self-retained by Borrower shall be as reasonably determined by Borrower so long as Borrower can reasonably demonstrate its ability to satisfy such deductible or amount of such self-retained insurance.
7.7 Blanket Policy. Notwithstanding anything to the contrary contained in this Article VII, Xxxxxxxx'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 Xxxxxxxx; provided, however, that the coverage afforded Lender 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 Agreement by reason of the use of such blanket policy of insurance, and provided further that the requirements of this Article VII are otherwise satisfied. The amount of this total insurance allocated to each of the Innisbrook Facility and the Tamarron Facility, which amount shall be not less than the amounts required pursuant to Sections 7.1 and 7.2, shall be specified either (i) in each such "blanket" or umbrella policy or (ii) in a written statement, which Borrower shall deliver to Lender and Lender Assignee, from the insurer thereunder. A certificate of each such "blanket" or umbrella policy shall promptly be delivered to Lender and Lender Assignee.
7.8 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 VII shall (i) if greater than $250,000, be paid to Lender and held by Xxxxxx and (ii) if less than such amount, be paid to Borrower and held by Borrower. All such proceeds shall be held in trust and deposited in an interest bearing account and shall be made available, together with any interest, for reconstruction or repair, as the case may be, of any damage to or destruction of the Property, or any portion thereof.
7.9 Disbursement of Proceeds. Any proceeds held by Lender or Borrower shall be paid out by Lender or Borrower from time to time for the reasonable costs of such reconstruction or repair; provided, however, that Lender 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 Lender, which approval shall not be unreasonably withheld or delayed and (ii) appropriate waivers of mechanics' and materialmen's liens shall have been filed;
(b) Borrower shall have obtained and delivered to Lender 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 Section 6.12, 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
39
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 Lender and Lender Assignee 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 Xxxxxxxx, signed by a senior member or officer of Xxxxxxxx, describing the work for which payment is requested, stating the cost incurred in connection therewith, stating that Xxxxxxxx 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 Agreement; and
(f) to the extent actually held by Xxxxxx and not a Lender Assignee, (1) the proceeds shall be held in a separate account and shall not be commingled with Xxxxxx'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.
7.10 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 Lender nor Borrower is required to or elects to repair and restore) shall be paid to Borrower. All salvage resulting from any risk covered by insurance shall belong to Borrower.
If the costs of restoration or reconstruction exceeds the amount of proceeds received by Xxxxxx or Borrower from insurance, Borrower shall pay for such excess cost of restoration or reconstruction, except that Borrower shall be entitled to withdraw from the Capital Replacement Fund an amount necessary to cover some or all of such excess subject; provided any amount so withdrawn must be restored by Borrower to the Capital Replacement Fund within two (2) years of such withdrawal.
7.11 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 VII and the Property thereby is rendered Unsuitable For Its Primary Intended Use, Borrower 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) prepay the Loans.
(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 VII, but the Property is not thereby rendered Unsuitable For Its Primary Intended Use, Borrower shall diligently restore the Property to substantially the same condition as existed immediately before the damage or destruction; provided, however, Borrower shall not be required to restore certain Tangible Personal Property and/or any Borrower Improvements if failure to do so does not adversely affect the amount of Interest 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 Agreement; provided further, however, if Borrower cannot within eighteen (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, Borrower may prepay the Loans.
7.12 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 VII, whether or not such damage or destruction renders the Property Unsuitable For Its Primary Intended Use, Borrower
40
shall restore the Property to substantially the same condition as existed immediately before the damage or destruction. Borrower shall have the right to use proceeds from the Capital Replacement Fund to perform such work, subject to the conditions set forth in Article IX hereof.
7.13 No Abatement of Obligations. This Agreement shall remain in full force and effect and Xxxxxxxx's obligation to make interest payments and to pay all other charges required by this Agreement shall remain unabated during the period required for repair and restoration.
7.14 Damage Near End of Term. Notwithstanding any other provision to the contrary in this Article VII, if damage to or destruction of the Property occurs during the last twenty-four (24) months of the Term, and if such damage or destruction cannot reasonably be expected by Lender to be fully repaired or restored prior to the date that is twelve (12) months prior to the end of the Term, then either Lender or Borrower shall have the right to accelerate the Maturity Date 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, Lender shall be entitled to retain all insurance proceeds, grossed up by Borrower to account for the deductible or any self-insured retention. If Lender shall give Borrower a notice under this Section 7.14 that it seeks to terminate this Agreement at a time prior to the end of the Term, then such termination notice shall be of no effect if Borrower shall so notify Lender within thirty (30) days.
8.1 Total Taking. If at any time during the Term the Innisbrook Premises are totally and permanently taken by Condemnation, this Agreement shall terminate on the Date of Taking and Borrower shall promptly pay all outstanding Interest, principal and other charges through the date of termination. Lender shall be entitled to immediately exercise its purchase option pursuant to Article XI, with the exercise of such option deemed to have taken place immediately prior to the effectiveness of any such condemnation action. If at any time during the Term and prior to the Release Date the Tamarron Premises are totally and permanently taken by Condemnation, this Agreement shall continue in full force and effect, and Lender shall be entitled to the first $250,000 of proceeds therefrom together with any additional amounts payable to Borrower after repayment of the Permitted Exceptions with respect to the Tamarron Premises, which amount Lender shall hold as Additional Collateral in accordance with the terms hereof. Amounts so held as Additional Collateral pursuant to this Section 8.1 from time to time shall be deemed to accrue interest at a money market rate as reasonably determined by Lender and such interest shall be credited to such cash collateral account.
8.2 Partial Taking. If a portion of the Property is taken by Condemnation, this Agreement shall remain in effect if the Innisbrook Property is not thereby rendered Unsuitable For Its Primary Intended Use, but if the Innisbrook Property is thereby rendered Unsuitable For Its Primary Intended Use, this Agreement shall terminate on the Date of Taking.
8.3 Restoration. If there is a partial taking of the Property and this Agreement remains in full force and effect pursuant to Section 8.2, Borrower at its cost shall accomplish all necessary restoration up to but not exceeding the amount of the Award payable to Xxxxxxxx, as provided herein. If the partial taking affects the Tamarron Property, and restoration is not feasible, the proceeds of the applicable Award shall be treated as cash collateral in accordance with the terms set forth in Section 8.1.
8.4 Award-Distribution. The entire Award shall belong to and be paid to Lender, except that, subject to the rights of the Lender Assignee, Borrower shall be entitled, in the event that Borrower restores the Property, to receive from the Award disbursements in the same manner as the disbursement of insurance proceeds pursuant to Section 7.9. Borrower shall also be entitled to disbursement from any Award, if and to the extent such Award specifically includes such item, a sum
41
attributable to the value of the loss of Xxxxxxxx's business during the remaining term, less the amount of any such value in which Lender would have participated pursuant to the terms of this Agreement.
8.5 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 Agreement shall remain in full force and effect. In the event of any such temporary taking, the entire amount of any such Award made for such temporary taking allocable to the Term, whether paid by way of damages, rent or otherwise, shall be paid to Borrower.
ARTICLE IX
CAPITAL REPLACEMENT FUND
9.1 Capital Replacement Fund. Borrower shall be obligated to pay to Lender, and Lender shall be obligated to accrue, the Capital Replacement Reserve. Amounts in the Capital Replacement Fund shall be and remain the property of Xxxxxxxx, shall be subject to the rights of Xxxxxx as herein provided, and shall be additional security for Borrower's obligations hereunder. The Capital Replacement Reserve shall be paid to Lender by Borrower on the last day of each Fiscal Quarter of Borrower. 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 Lender and such interest shall be credited to the Capital Replacement Fund. Upon the written request by Borrower to Lender stating the specific use to be made and subject to the reasonable approval of Lender, the Capital Replacement Fund shall be made available to Borrower for Capital Expenditures. Borrower shall have no rights with respect to any amounts in the Capital Replacement Fund except as provided herein. Subject to Xxxxxx's approval of the Capital Expenditures (which approval shall not be unreasonably withheld and which shall be granted provided such improvements are reasonably expected to increase the long-term value of the Property), Lender shall make available to Borrower amounts from the Capital Replacement Fund under the following conditions:
(a) No Event of Default exists and is continuing;
(b) Xxxxxxxx presents paid qualifying receipts or invoices;
(c) Such expenditures are included in the Capital Budget submitted to and approved by Lender in accordance with Section 6.9 or will enhance the long-term value of the Property; and
(d) If from time to time Borrower shall expend monies beyond the balance in the Capital Replacement Fund, then Borrower shall be afforded the opportunity to present such paid invoices for reimbursement at later dates when the Borrower's reserve balance shall be replenished to a level that can support such expenditure.
9.2 Capital Replacement Fund to Be Held Pursuant to the Terms of the Westin Management Agreement. During the period Westin Hotel Company is managing the Innisbrook Property pursuant to the Westin Management Agreement, the Capital Replacement Fund shall be held by Westin Hotel Company pursuant to the terms of the Westin Management Agreement; provided Lender and Westin Hotel Company shall enter into a separate agreement respecting their respective rights.
42
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
10.1 Events of Default. If any one or more of the following events (individually, an "Event of Default") shall occur:
(a) if Borrower shall fail to make payment of the Interest payable by Borrower under this Agreement when the same becomes due and payable and such failure is not cured by Borrower within a period of ten (10) days after receipt by Borrower of notice thereof from Lender; provided, however, Borrower 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 Borrower shall fail to observe or perform any material term, covenant or condition of this Agreement and such failure is not cured by Borrower within a period of thirty (30) days after receipt by Borrower of notice thereof from Lender, 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 Borrower proceeds promptly and with due diligence to cure the failure and diligently completes the curing thereof as soon as reasonably practicable following receipt of notice from Lender 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 10.1(b) if the facts or circumstances giving rise to the default are creating a further harm to Lender or the Property and Lender makes a good faith determination that Borrower is not undertaking remedial steps that Lender would cause to be taken if this Agreement were then to terminate;
(c) if Borrower 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
(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 Borrower 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 Xxxxxxxx, a receiver of Borrower or of the whole or substantially all of its property, or approving a petition filed against it seeking reorganization or arrangement of Borrower 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 Borrower shall be liquidated or dissolved, or shall begin proceedings toward such liquidation or dissolution;
(f) if the estate or interest of Borrower 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 or bonded within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Borrower of notice thereof from Lender (unless Borrower shall be contesting such lien or
43
attachment in accordance with Section 6.12); 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 Borrower voluntarily ceases operations on the Property;
(h) any representation or warranty made by Borrower herein or in any certificate, demand or request made pursuant hereto proves to be incorrect, now or hereafter, in any material respect and the same has not been cured or remedied within a period of thirty (30) days after receipt by Borrower of notice thereof from Lender; or
(i) an "Event of Default" (as defined in any lease or loan) by any Affiliate of Borrower in any other lease or loan by and between such party and Lender or any Affiliate of Lender, or an "Event of Default" under the Pledge Agreement;
THEN, Xxxxxxxx shall be declared to have breached this Agreement. Lender may accelerate Borrower's obligations hereunder by giving Borrower not less than ten (10) days' notice (or no notice for clauses (c), (d), (e), (f) and (g)) of such termination and upon the expiration of the time fixed in such notice, all amounts due and payable hereunder or under any of the Loan Documents shall become immediately due and payable and all rights of Borrower under this Agreement shall cease. Lender shall have all rights at law and in equity available to Lender and to secured lenders generally as a result of Xxxxxxxx's breach of this Agreement.
10.2 Payment of Costs. Borrower shall, to the extent permitted by law, pay as Additional Charges all costs and expenses incurred by or on behalf of Xxxxxx, including reasonable attorneys' fees and expenses, as a result of any Event of Default hereunder.
10.3 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 Lender hereunder, Xxxxxx shall be entitled, as a matter or right, to the appointment of a receiver or receivers acceptable to Lender 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.
10.4 Waiver. If this Agreement is terminated pursuant to Section 10.1, Borrower waives, to the extent permitted by applicable law (a) any right of redemption, re-entry or repossession.
10.5 Prepayment Premium. Upon acceleration of the obligations of Borrower hereunder, whether before or after an Event of Default, then in addition to payment of all other amounts due and owing under this Agreement or the other Loan Documents, Borrower shall pay to Lender, as prepayment consideration, an amount equal to the greater of (a) ten (10%) percent of the outstanding Loan balance, or (b) the present value of a series of payments each equal to the Payment Differential payable on each monthly payment date over the balance of the term of the Note discounted at the Reinvestment Yield. Notwithstanding the foregoing, no prepayment premium shall be due and owing upon the repayment of the Loan as a result of a prepayment in accordance with Article VII or Article VIII.
10.6 Application of Funds. Any payments received by Lender under any of the provisions of this Agreement during the existence or continuance of any Event of Default (and such payment is made to Lender rather than Borrower due to the existence of an Event of Default) shall be applied to Borrower's obligations in the order which Lender may determine or as may be prescribed by the laws of the State.
44
Upon the expiration or sooner termination of this Agreement for any purpose whatsoever (including in the event of an Event of Default and the exercise by Lender of its remedies under the Loan Documents), and without limiting any other rights or remedies available to Lender hereunder, Lender shall have the right to acquire the Innisbrook Property from Borrower (the "Purchase Option") for either of the following forms of consideration:
(a) The payment by Xxxxxx to Borrower, in cash, of the Fair Market Value of the Innisbrook Property on the date of exercise of the Purchase Option (subject to Borrower's obligation to pay the outstanding principal amount of the Loan and accrued interest, together with any other payments due and owing under this Agreement or the Loan Documents, including the Additional Interest Amount); or
(b) Cancellation of the outstanding principal balance of the Loan, including any obligation to pay the Additional Interest Amount, and the issuance by Lender to Borrower of the Purchase Price/Xxxxxx's Shares (as increased by any stock splits or stock dividends issued by GTA Inc. during the term of this Agreement and adjusted for any successor entity to GTA by way of merger or otherwise based on the exchange rate at the time of such merger).
Upon notice of exercise by Lender of the Purchase Option, Xxxxxxxx shall execute a special warranty deed, bill of sale, and such other documents and instruments as Lender reasonably requires, and shall take all other actions reasonably necessary or desirable to convey good and marketable title to the Innisbrook Property to Lender, subject only to Permitted Exceptions. Borrower shall not remove any Tangible Personal Property from the Property upon termination of the Agreement and any amounts remaining in the Capital Replacement Reserve shall be paid over to Lender. Borrower shall pay for an owner's title insurance policy for Lender, in customary form, and shall pay for all transfer and recording taxes applicable to such purchase and sale. The purchase option granted to Lender herein shall be memorialized and recorded in the Deed of Trust. Upon consummation of Xxxxxx's option to purchase the Innisbrook Property pursuant to this Article XI, Borrower shall vacate and surrender the Innisbrook Property to Lender in the condition in which the Innisbrook Property was in on the Closing Date, except as repaired, rebuilt, restored, altered or added to as permitted or required by the provisions of this Agreement and except for ordinary wear and tear (subject to the obligation of Borrower to maintain the Property in good order and repair during the Term). Lender shall cooperate with Borrower to minimize any adverse tax impact to Borrower upon Xxxxxx's exercise of the Purchase Option, including, without limitation, the purchase of the stock of the entity owning the Innisbrook Property; provided such cooperation shall be at no additional cost to Lender, shall not result in Lender having a different tax basis in the Innisbrook Property, shall not subject Lender to additional liabilities, nor delay the conveyance of the Innisbrook Property to Lender.
ARTICLE XII
SALE, LEASING AND ASSIGNMENT
12.1 Prohibition Against Sale. Borrower shall not, without the prior written consent of Lender, which consent Lender may withhold in its reasonable discretion, sell, assign, or otherwise transfer (except to an Affiliate of Borrower or a Permitted Assignee) the Property or any interest therein, whether voluntarily, involuntarily or by operation of law. For purposes of this Article 12, a Change in Control of the Borrower shall constitute a sale of the Property. In no event shall Borrower be permitted to place junior encumbrances on all or any part of the Innisbrook Property, except to the extent specially permitted by Section 2.11(c).
45
(a) Permitted Leases. In no event shall Borrower lease all or any portion of the Property in a manner which is inconsistent with Borrower's obligation to enhance the long-term value of the Property, nor shall Lender withhold its consent to any assignment or sublease of the Property which is consistent with such obligation. Lender hereby approves all existing leases and licenses on the Property which are set forth in Schedule 6.9 of the Stock Purchase and Merger Agreement. Xxxxxxxx's proposed lease or any of the following transfers shall require Xxxxxx's prior written consent, which consent Lender may withhold in its reasonable discretion provided Lender determines that such lease or transfer is inconsistent with Borrower's obligation to enhance the long-term value of the Property:
(i) lease or license to operate golf courses;
(ii) lease or license to operate golf professionals' shops;
(iii) lease or license to operate golf driving ranges;
(iv) lease or license to operate hotel and conference facilities; and
(v) lease 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 which provide for an annual lease or license payment of in excess of $25,000 (which amount shall be increased by increases in the CPI from the Commencement Date).
(b) Terms of Leases. Each lease with respect to the Property shall be subject and subordinate to the lien of the Lender in the Property. No lease made as permitted by this Section 12.2 shall affect or reduce any of the obligations of Borrower hereunder, and all such obligations shall continue in full force and effect as if no lease had been made. No lease shall impose any additional obligations on Lender under this Agreement.
(c) Copies. Borrower shall, not less than sixty (60) days prior to any proposed assignment or lease, deliver to Lender written notice of its intent to assign or lease, which notice shall identify the intended assignee or sublessee by name and address, shall specify the effective date of the intended assignment or lease, and shall be accompanied by an exact copy of the proposed assignment or lease. Borrower shall provide Lender with such additional information or documents reasonably requested by Xxxxxx 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 Leases. As security for performance of its obligations under this Agreement, Borrower hereby grants, conveys and assigns to Lender all right, title and interest of Borrower in and to all leases 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. Lender hereby grants to Borrower a license to collect and enjoy all rents and other sums of money payable under any lease of any of the Property; provided, however, that Lender shall have the absolute right at any time after the occurrence and continuance of an Event of Default upon notice to Borrower and any subtenants to revoke said license and to collect such rents and sums of money and to retain the same. Borrower 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 leases or the termination thereof, without the prior written approval of Lender 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 leases.
46
(e) Licenses, Etc. For purposes of this Section 12.2, leases 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.
12.3 Transfers. No assignment or lease shall in any way impair the continuing primary liability of Borrower hereunder, as a principal and not as a surety or guarantor, and no consent to any assignment or lease in a particular instance shall be deemed to be a waiver of the prohibition set forth in Section 12.1. Any assignment or other transfer of all or any portion of Xxxxxxxx's interest in the Property in contravention of the terms of this Agreement shall be voidable at Lender's option. Anything in this Agreement to the contrary notwithstanding, Borrower shall not lease all or any portion of the Property which is inconsistent with Borrower's obligation to maximize the long-term value of the Property, nor shall Lender withhold its consent to any assignment or sublease of the Property which is consistent with such obligation.
12.4 REIT Limitations. Anything contained in this Agreement to the contrary notwithstanding, Borrower shall not (i) lease 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) lease or assign the Property or this Agreement to any person that Lender 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) lease or assign the Property or this Agreement in any other manner or otherwise derive any income which could cause any portion of the amounts received by Lender pursuant to this Agreement or any lease to fail to qualify as "interest on obligations secured by mortgages on real property, or on interests in real property" within the meaning of Section 856(c)(3)(B) of the Code, or which could cause any other income received by Lender to fail to qualify as income described in Section 856(c)(2) of the Code. The requirements of this Section 12.4 shall likewise apply to any further subleasing by any subtenant.
12.5 Management Agreement. Borrower shall not enter into any management agreement that provides for the management and operation of the Innisbrook Property by an unaffiliated third party without the prior written consent of Lender, which consent shall not be unreasonably withheld. Xxxxxxxx agrees not to terminate or materially modify the Master Lease—Innisbrook or the Westin Management Agreement or any interest therein without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed. Any subsequent manager of the Innisbrook Property shall be a first-class upscale hotel operator with relevant experience in the operation and management of first-class golf facilities.
13.1 Arbitration. In each case specified in this Agreement in which it shall become necessary to resort to arbitration, such arbitration shall be determined as provided in this Section 13.1. 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.
13.2 Arbitration Procedures. In any arbitration commenced pursuant to Section 13.1 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.
47
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 Xxxxxx and Borrower except as otherwise specified above in this Section 13.2. 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 Xxxxxx and Xxxxxxxx regarding the Property during the arbitration.
ARTICLE XIV
XXXXXX'S RIGHT TO PLEDGE THE NOTES; XXXXXXXX'S AND XXXXXX'S RIGHT OF FIRST OFFER
14.1 Lender May Grant Liens. Without the consent of Xxxxxxxx, Lender may, from time to time, directly or indirectly, create or otherwise cause to exist any lien on, or assignment of, its interest in the Loan, the Notes, or any portion thereof or interest therein, whether to secure any borrowing or other means of financing or refinancing (the holder of any such assignment or lien, a "Lender Assignee"). Upon Xxxxxx's reasonable request, Borrower shall provide written acknowledgement of any such assignment to any Lender Assignee. Following the Closing Date, Xxxxxx intends to assign its interest in the Loan and the Notes to NationsBank, N.A. as agent. In connection therewith, Xxxxxxxx agrees to provide to NationsBank, N.A., as agent, a Phase I Environmental Report Certified to NationsBank, N.A., as agent, in conformity with the reasonable requirements of NationsBank, N.A. Borrower shall pay the first $10,000 of the cost thereof and any amounts in excess thereof shall be paid equally by Borrower and Lender.
14.2 Borrower's Right of First Offer to Purchase. Except for assignments permitted or contemplated by Section 14.1, including conveyances by any lender following the exercise of any remedies it may have, and excluding any financing transactions wherein Lender retains any interest in a Note, if Lender intends to sell a Note, and provided no Event of Default then exists, Borrower shall have a right of first offer to purchase a Note ("Borrower's Right of First Offer to Purchase") on the terms and conditions at which Lender proposes to sell the Note to an unaffiliated third party. Lender shall give Borrower written notice of its intent to sell and shall indicate the terms and conditions (including the sale price) upon which Lender intends to sell such Note to a third party. Borrower shall thereafter have sixty (60) days to elect in writing to purchase such Note on the terms and conditions set forth in the notice provided by Xxxxxx to Borrower. If Borrower does not elect to purchase such Note, then Lender shall be free to sell the Note to a third party for a period of two hundred seventy (270) days. However, if the price at which Xxxxxx intends to sell the Note to a third party is less than 95% of the price set forth in the notice provided by Lender to Borrower or otherwise are on terms which are materially more favorable than the terms and conditions set forth in the notice, then Lender shall again offer Borrower the right to acquire the Note upon the same terms and conditions, provided that Borrower shall have only thirty (30) days thereafter to complete the acquisition at such price, terms and conditions.
14.3 Xxxxxx's Right of First Offer to Purchase. If Borrower intends to sell the Innisbrook Property, Borrower shall have a right of first offer to purchase the Innisbrook Property ("Xxxxxx's Right of First Offer to Purchase") on the terms and conditions at which Xxxxxxxx proposes to sell the Innisbrook Property to an unaffiliated third party. Borrower shall give Lender written notice of its intent to sell and shall indicate the terms and conditions (including the sale price) upon which Borrower intends to sell the Innisbrook Property to a third party. Xxxxxx shall thereafter have sixty (60) days to elect in writing to purchase the Innisbrook Property on the terms and conditions set forth in the notice provided by Borrower to Lender. If Lender does not elect to purchase the Innisbrook
48
Property, then Borrower shall be free to sell the Innisbrook Property to a third party for a period of two hundred seventy (270) days. However, if the price at which Borrower intends to sell the Innisbrook Property to a third party is less than 95% of the price set forth in the notice provided by Borrower to Lender or otherwise are on terms which are materially more favorable than the terms and conditions set forth in the notice, then Borrower shall again offer Lender the right to acquire the Innisbrook Property upon the same terms and conditions, provided that Lender shall have only thirty (30) days thereafter to complete the acquisition at such price, terms and conditions.
15.1 Borrower's Indemnification of Lender. Except as otherwise provided in Section 6.5(b) and notwithstanding the existence of any insurance provided for in Article VII, and without regard to the policy limits of any such insurance, Borrower will protect, indemnify, save harmless and defend any Lender Indemnitee from and against all liabilities, obligations, claims, actual damages (but excluding consequential damages), penalties, causes of action, costs and expenses (including reasonable attorneys' fees and expenses), to the extent permitted by law, imposed upon or incurred by or asserted against any Lender Indemnitee 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 Borrower to pay pursuant to the applicable provisions of this Agreement);
(d) any failure on the part of Borrower to perform or comply with any of the terms of this Agreement;
(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 leases of the Property to be performed by the landlord (Borrower) thereunder;
(g) the negligence or alleged negligence of Lender with respect to the Property;
(h) any liability Lender may incur or suffer as a result of any permitted contest by Borrower pursuant to Section 6.12;
(i) any other loss, damage or liability to any Lender Indemnitee arising out of this Agreement or in connection herewith, unless such suit, claim or damage is caused by the gross negligence or willful misconduct of such Lender Indemnitee.
15.2 Lender's Indemnification of Borrower. Lender shall protect, indemnify, save harmless and defend Xxxxxxxx from and against all liabilities, obligations, claims, actual or consequential damages, penalties, causes of action, costs and expenses (including reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Borrower as a result of Xxxxxx's gross negligence or willful misconduct.
15.3 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 XV, the indemnified party shall give notice
49
thereof to the indemnifying party. The indemnified party may at its option demand indemnity under this Article XV 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.
15.4 Survival of Indemnification Obligations; Available Insurance Proceeds. Borrower's or Xxxxxx's liability for a breach of the provisions of this Article XV arising during the term hereof shall survive any termination of this Agreement. 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.
16.1 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 Lender:
Golf
Trust of America, L.P.
00 Xxxxx Xxxxx'x Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn: X. Xxxxxxx Xxxxx, XX
Copy to:
O'Melveny &
Xxxxx LLP
Embarcadero Center West
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
50
If to the Borrower:
Xx. Xxxxxxx
X. Xxxxxxx
Starwood Capital Group, L.P.
Three Pickwick Plaza, Xxx. 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Copy to:
Xxxxx
X. Xxxxxxx, Esq.
Xxxxx, Brown & Xxxxx
0000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Tel.: 000-000-0000
Fax: 000-000-0000
16.2 Authority to File Notices. Borrower irrevocably appoints Xxxxxx as its attorney-in-fact, with full power of substitution, to file for record, at Borrower's cost and expense and in Xxxxxxxx's name, any notices of completion, notices of cessation of labor, or any other notices that Xxxxxx considers necessary or desirable to protect its security.
16.3 Inconsistencies with Loan Documents. In the event of any inconsistencies between the terms of this Agreement and any terms of any of the Loan Documents, the terms of this Agreement shall govern and prevail.
16.4 No Waiver; Remedies Cumulative. No disbursement of proceeds of the Loan shall constitute a waiver of any conditions to Xxxxxx's obligation to make further disbursements, and if Borrower is unable to satisfy any such conditions, the existence of any such waiver shall not preclude Lender from thereafter declaring such inability to constitute a default under this Agreement. No failure or delay on the part of Lender in the exercise of any power, right or privilege hereunder or under any other Loan Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. All rights and remedies existing under this Agreement and the other Loan Documents are cumulative to and not exclusive of any rights or remedies provided by law or otherwise available.
16.5 Lender Approval of Instruments and Parties. All proceedings taken in accordance with transactions provided for herein; all waivers of lien, surveys, appraisals and documents required or contemplated by this Agreement and the Persons responsible for the execution and preparation thereof shall be satisfactory to, and subject to approval by, Xxxxxx. Xxxxxx's counsel shall be provided with copies of all documents which they may reasonably request in connection with this Agreement.
16.6 Lender Determination of Facts. Lender shall at all times be free to hire such independent consultants as it deems reasonably necessary to independently establish the existence or nonexistence of any fact or facts, the existence or nonexistence of which is a condition of this Agreement or of any disbursement of Loan proceeds hereunder. The costs of such consultants are to be paid by Xxxxxxxx, provided such consultants are hired in the ordinary course of Xxxxxx's business and similar consultants are generally engaged to review all properties in which Xxxxxx owns a fee, leasehold or mortgagee's interest. Provided no Event of Default then exists (in which case the foregoing limitation shall not apply) the annual cost of Lender's regular consultants shall not exceed on average Two Thousand Five Hundred Dollars ($2,500) per year, which amount shall be increased to reflect increases in the CPI from the date hereof.
51
16.7 Incorporation of Preamble, Recitals and Exhibits. The preamble, recitals and exhibits hereto are hereby incorporated into this Agreement and made a part hereof.
16.8 Entire Agreement. This Agreement and the other Loan Documents constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and thereof and supersedes all prior agreements between the parties with respect to the matters contained in this Agreement and the other Loan Documents. All prior or contemporaneous understandings, oral representations or agreements had among the parties with respect to this subject matter are merged and contained in this Agreement and the other Loan Documents.
16.9 Further Assurances. Borrower shall execute and deliver from time to time, promptly after any request therefor by Xxxxxx, any and all instruments, agreements and documents and shall take such other action as may be necessary or desirable in the opinion of Lender to maintain, perfect or insure Lender's security provided for herein and in the other Loan Documents, including the execution of UCC-1 renewal statements, the execution of such amendments to the Deed of Trust and the other Loan Documents, the delivery of such endorsements to the Title Company and any and all documents or instruments in respect of any revenues from the Property, all as Lender shall reasonably require, and shall pay all fees and expenses (including reasonable attorneys' fees) related thereto or incurred by Lender in connection therewith.
16.10 Changes, Waivers, Discharge and Modifications in Writing. No provision of this Agreement may be changed, waived, discharged or terminated except by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought.
16.11 Choice of Law. THIS AGREEMENT AND THE TRANSACTION CONTEMPLATED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16.12 Disbursements in Excess of Loan Amount. If the total disbursements by Xxxxxx exceed the amount of the Loan, to the extent permitted by the laws of the State of New York, the total of all disbursements shall be secured by the Loan Documents. All other sums expended by Lender pursuant to this Agreement or any other Loan Documents shall be deemed to have been paid to Borrower and shall be secured by the Loan Documents. Funds advanced in the reasonable exercise of Xxxxxx's judgment that the same are needed to complete the Improvements or to protect its security are to be deemed obligatory advances hereunder and are to be added to the total indebtedness due under the Note and secured by the Loan Documents and said indebtedness shall be increased accordingly.
16.13 Counterparts. This Agreement and all other Loan Documents may be executed in any number of counterparts each of which shall be deemed an original, but all such counterparts together shall constitute but one agreement. Signature and acknowledgement pages may be detached from the counterparts and attached to a single copy of the document to physically form one document.
16.14 Time is of the Essence. Time is of the essence of this Agreement.
16.15 Attorneys' Fees. For the purpose of this Agreement and the other Loan Documents, the terms "attorneys' fees" and "attorneys' fees and costs" shall each mean the fees and expenses of counsel to the parties hereto, which may include printing, photostating, duplicating and other expenses, air freight charges, and fees billed for law clerks, paralegals, librarians and others not admitted to the bar but performing services under the supervision of an attorney. The terms "attorneys' fees" and "attorneys' fees and costs" shall also each include all such fees and expenses incurred with respect to appeals, arbitrations and bankruptcy proceedings, and whether or not any action or proceeding is brought with respect to the matter for which said fees and expenses were incurred and shall also include all such fees and expenses incurred in enforcing any judgment. In the event of any dispute between the parties hereto involving the covenants or conditions contained in this Agreement or arising
52
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.
16.16 Severability. Should any portion of this Agreement be declared invalid and unenforceable, then such portion shall be deemed to be severed from this Agreement and shall not affect the remainder thereof.
16.17 Interest Rate Limitation. It is the intent of Xxxxxxxx and Xxxxxx in the execution of this Agreement and the other Loan Documents that the Loans be exempt from the usury laws of the State of New York. In the event that, for any reason, it should be determined that the New York usury law is applicable to the Loans, Lender and Borrower stipulate and agree that none of the terms and provisions contained herein or in any of the other Loan Documents shall ever be construed to create a contract for the use, forbearance or detention of money requiring payment of interest at a rate in excess of the maximum interest rate permitted to be charged by the laws of the State of New York. In such event, if Lender shall collect any monies which are deemed to constitute interest which would otherwise increase the effective interest rate on the Loans to a rate in excess of the maximum interest rate permitted to be charged by the laws of the State of New York, all such sums deemed to constitute interest in excess of such maximum rate shall, at the option of Lender, be credited to the payment of sums due hereunder or under the other Loan Documents or shall be returned to Borrower.
16.18 Brokers. Borrower hereby represents and warrants to Lender that there are no brokerage commissions or finders' fees due or claimed by any party to be due in connection with or with respect to the transaction contemplated hereby as a result of any agreements or understandings, including alleged agreements and understandings, with Borrower or any affiliate of Borrower or anyone claiming to represent Borrower or any affiliate of Borrower. Lender hereby represents and warrants to Borrower that there are no brokerage commissions or finders' fees due or claimed by any party to be due in connection with or with respect to the transaction contemplated hereby as a result of any agreements or understandings, including alleged agreements and understandings, with Lender or any affiliate of Lender or anyone claiming to represent Lender or any affiliate of Lender.
16.19 Non-Recourse as to Lender and Borrower.
(a) Anything contained herein to the contrary notwithstanding, any claim based on or in respect of any liability of Lender under this Agreement shall be enforced only against Xxxxxx's interest in the Collateral and not against any other assets, properties or funds of (a) Xxxxxx, (b) any director, officer, general partner, limited partner, employee or agent of Lender, or any general partner of Lender, 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 Lender, or any of their respective general partners, either directly or through either Lender 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. Borrower shall have the right of setoff against payments due under the Note following a judicial determination of a court of competent jurisdiction of Xxxxxx's liability for the breach of one or more of its obligations hereunder.
(b) Except as expressly set forth below, the recourse of Lender with respect to the obligations evidenced by the Note and the Loan Documents shall be solely to the Property. Notwithstanding the foregoing, nothing shall be deemed in any way to impair, limit or prejudice the rights of Lender:
(i) in foreclosure proceedings or in any ancillary proceedings brought to facilitate Xxxxxx's foreclosure on the Property or the Pledged Lender's Shares or any portion thereof,
53
provided such exception shall not expand Xxxxxx's ability to seek recourse against assets in which it has no security interest;
(ii) to recover from Borrower any condemnation or insurance proceeds attributable to the Property which were not paid to Lender or used to restore the Property in accordance with the terms of this Agreement;
(iii) to recover from Borrower any rents, profits, security deposits, advances, rebates, prepaid rents, room or other hotel or golf course revenues or other similar sums attributable to the Property collected by or for Borrower following an Event of Default and not properly applied to the reasonable fixed and operating expenses of the Property, including payments of the Loan; and
(iv) to recover any damages as a result of any fraud or misrepresentation by Borrower in connection with the Property or the Loan Documents.
16.20 No Relationship. Lender shall in no event be construed for any purpose to be a partner, landlord, fee owner, joint venturer or associate of Borrower or of any tenant, operator, concessionaire or licensee of Borrower with respect to the Property or any of the Other Leased Properties or otherwise in the conduct of their respective businesses. Without limiting the foregoing, Borrower confirms that this Agreement creates a creditor/debtor relationship and not that of a landlord/tenant or partnership.
16.21 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the permitted heirs, executors, administrators, legal representatives, successors and assigns of the parties.
16.22 Competition Between Lender and Borrower. Xxxxxx and Xxxxxxxx agree that neither party shall be restricted as to other relationships and competition. Affiliates of Borrower shall be allowed to own, lease and/or manage other golf courses or golf resorts that are not affiliated with Lender, provided that such other ownership, leasing or management arrangements are disclosed to Lender in writing. Subject to the provisions of Section 16.24, Lender may acquire or own golf courses that may be geographically proximate to one or more golf courses that Borrower or Affiliates of Borrower may own, manage or lease.
16.23 Waiver of Jury Trial. XXXXXXXX AND XXXXXX XXXXXX AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE LOAN DOCUMENTS, OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION AND THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver is intended to be all encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this transaction, including contract claims, tort claims, breach of duty claims, and all other common law and statutory claims. Borrower and Xxxxxx acknowledge that this waiver is a material inducement to enter into a business relationship, that each has already relied on the waiver in entering into this Agreement, and that each will continue to rely on the waiver in their related future dealings. Borrower and Xxxxxx further warrant and represent that each has reviewed this waiver with its legal counsel, and that each knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.
54
16.24 Right of First Offer to Lease Additional Golf Courses Proximate to the Innisbrook Property. Neither Lender nor any of its Affiliates, either individually or with any other Person, shall at any time while the Loan is outstanding own, lease, finance and/or manage an existing property containing a golf course which is located within a twenty-five mile radius (the "Restricted Radius") of the Innisbrook Premises except in accordance with the terms of this Section 16.24. If at any time while the Loan is outstanding, Lender or any of its Affiliates shall be given the opportunity with an unrelated third-party (each such party, a "Third Party") to own or lease a golf course that is within the Restricted Radius, which opportunity Lender or any of its Affiliates intends to accept, then Lender shall send notice to Borrower of such opportunity together with a copy of the proposed agreement or term sheet (the "Proposed Agreement") between Lender or its Affiliate and the Third-Party pertaining to such opportunity. Within forty-five days of delivery of such notice to Borrower, Borrower and Lender shall endeavor in good faith to execute and deliver to the other a mutually satisfactory agreement setting forth such agreement, in lieu of the Third-Party, with the Lender or its Affiliate, on substantially the same terms and conditions in the Proposed Agreement. If agreement is not executed and delivered as aforesaid, then Lender and its Affiliates shall be free for a period of two hundred and seventy days to enter into such opportunity with the Third-Party on generally the same terms and conditions as set forth in the Proposed Agreement. Notwithstanding the foregoing, if any opportunity is presented to Lender or any of its Affiliates to own or lease a property that is within the Restricted Area and that has an existing and operating golf course, then Lender shall have no obligation to provide Borrower with the notice specified in this Section or to comply with the other requirements of this Section during the period that such property has a pre-existing arrangement with another owner, operator or manager, provided, that upon the expiration or termination of such pre-existing arrangement, Lender shall offer such opportunity to Borrower in accordance with the terms of this Section.
IN WITNESS WHEREOF, Xxxxxx and Borrower have caused this Agreement to be duly executed and delivered as of the date first above written.
| Borrower: | ||||||
GOLF HOST RESORTS, INC., a Colorado corporation |
||||||
By: |
/s/ XXXXXXX X. XXXXXXX |
|||||
| Its: | President | |||||
Lender: |
||||||
GOLF TRUST OF AMERICA, L.P., a Delaware limited partnership |
||||||
By: |
GTA GP, Inc., a Maryland corporation |
|||||
| Its: | General Partner | |||||
By: |
/s/ X. XXXXXXX XXXXX, XX |
|||||
| Its: | President | |||||
55
