EXHIBIT 10.35
AMENDED AND RESTATED LEASE
This Lease, made and entered into this 16th day of November, 2000, by and
between the Inhabitants of the Town of Carrabassett Valley, a body corporate
under the laws of the State of Maine (the "TOWN"), and Sugarloaf Mountain
Corporation, a corporation existing under the laws of the State of Maine, whose
address is Route 27, Carrabassett Valley, Maine ("LESSEE"), and amends and
restates in its entirety that certain Lease entered into by and between the TOWN
and Mountain Greenery, dated September 10, 1984, which lease was assigned from
Mountain Greenery to LESSEE on or about June 3, 1987.
WITNESSETH:
That for and in consideration of the rent to be paid by LESSEE and the
other consideration given by the LESSEE herein, the transfer of certain real and
personal property (the "Other Assets") by LESSEE to the TOWN, the obtaining by
LESSEE of the releases or subordination of liens in the Other Assets, and for
other good and valuable consideration, the TOWN hereby leases to the LESSEE, and
LESSEE takes and leases in an "as is" condition from the TOWN, the real and
personal property described and shown on the attachment labeled EXHIBIT A and
made a part hereof.
Said leased property, real and personal, shall hereinafter be referred to
as the "Premises."
TO HAVE AND TO HOLD the same Premises unto LESSEE, subject to the
conditions and covenants herein contained, for the term hereinafter specified.
The parties hereto further agree as follows:
ARTICLE I
TERM OF LEASE
The initial term ("Term") of this lease shall be for a term of 23 years,
commencing the 16th day of November, 2000, and terminating at midnight on the
16th day of November, 2023.
ARTICLE II
OPTION TO RENEW
Provided that no Event of Default by LESSEE then exists under the terms of
this Lease, LESSEE shall be entitled to renew the term hereof for one (1)
additional period of ten (10) years (the "Renewal Term") by giving written
notice (the "Renewal Notice") to the Town, in accordance with the terms of this
Lease, at least ten (10) months prior to the
expiration of the Term hereof. If LESSEE gives a Renewal Notice, this Lease
shall continue in full force and effect until the expiration of the Renewal
Term.
ARTICLE III
TERMINATION; HOLDING OVER
A. TERMINATION. Unless renewed pursuant to Article II, this Lease shall
terminate at the end of the Term without the necessity of any notice. LESSEE
shall, at its expense, at the expiration of the Term, or Renewal Term, if
applicable, or any earlier termination of this Lease, (a) promptly surrender to
the TOWN possession of the Premises in good order and repair (ordinary wear and
tear excepted), (b) remove therefrom the LESSEE's goods and effects and any
machinery, trade fixtures and equipment which are not owned by the TOWN, and (c)
repair any damage to the Premises caused by such removal. In addition, at the
expiration or earlier termination of this Lease, LESSEE shall continue to allow
the TOWN to use the clubhouse located near the Premises and used in connection
therewith for a period of one (1) year (during the golf season only) upon
payment by the TOWN to LESSEE of the fair rental value thereof.
B. HOLDING OVER.
(i) WITH CONSENT. If LESSEE shall be in possession of the Premises
after the expiration of the Term, or Renewal Term, if
applicable, or any earlier termination of this Lease, after
obtaining the TOWN's written consent to such continued
occupancy, such occupancy shall be deemed to be under a
month-to-month tenancy, which shall continue until either
party hereto notifies the other in writing, by at least
fifteen (15) days, that the notifying party elects to
terminate such occupancy at the end of such fifteen (15) day
period, in which event such occupancy shall so terminate, and
the rent due shall equal one hundred twenty-five percent
(125%) of the rent for the lease year during which expiration
of the Term, or Renewal Term, if applicable, or earlier
termination occurs.
(ii) WITHOUT CONSENT. If LESSEE continues to occupy the Premises
after the expiration of the Term, or Renewal Term, if
applicable, or any earlier termination of this Lease, without
having obtained the TOWN's written consent to such continued
occupancy, then, without altering or impairing any of the
TOWN's rights under this Lease or applicable law or implying
any right to remain in possession, LESSEE hereby agrees to pay
to the TOWN as rent for the Premises until the LESSEE
surrenders possession of the Premises to the TOWN, a sum
equaling two hundred percent (200%) of the amount of the rent
for the lease year during which
expiration of the Term, or Renewal Term, if applicable, or
earlier termination occurs.
ARTICLE IV
PURPOSE AND IMPROVEMENTS
LESSEE shall use the Premises for the operation and maintenance of a
public golf facility and appurtenances, and the Premises shall be used only for
such purposes unless consent to some other use is obtained from the TOWN in
writing in the TOWN's sole discretion. LESSEE shall use commercially reasonable
efforts to keep the golf course on the Premises open during the golf season,
weather permitting. The parties acknowledge that the typical golf season runs
from April 15 through November 15, subject to weather conditions.
A. MAINTENANCE. LESSEE shall maintain all portions of the Premises,
including but not limited to the maintenance garages comprising a portion of the
Premises, in first class quality, and to perform, at its sole expense (except as
otherwise provided herein), all repairs and improvements to the Premises
necessary to carry out the foregoing. Notwithstanding the foregoing, the costs
of Extraordinary Maintenance, as hereafter defined, shall be paid from an
account (the "Capital Reserve Account") to be established by the TOWN, all funds
in which Capital Reserve Account shall be the exclusive property of the TOWN.
Beginning after the expiration of the first three years of the Term, and each
and every year thereafter for the balance of the Term, each of the TOWN and
LESSEE shall contribute $15,000 annually to the Capital Reserve Account, such
contributions to be made on or before April 15 in each and every year. If LESSEE
sends a Renewal Notice, as provided in Article II, the Town and the LESSEE shall
agree in good faith on the amount of annual contributions to be made by each of
them during the Renewal Term.
"Extraordinary Maintenance" shall be defined as any single incident of
golf course maintenance costing in excess of $25,000 (the "Base Maintenance
Amount") during the first year of the Term. Beginning in the second year of the
Term, and during each and every year of the Term and Renewal Term thereafter,
the Base Maintenance Amount shall be adjusted based on changes in the Consumer
Price Index from year to year, with the base Consumer Price Index being that in
effect on the date of this Lease. To the extent that the cost of any such
maintenance project exceeds $25,000, as adjusted, then any such cost in excess
of $25,000, as adjusted, shall be paid by the Town solely from funds contained
in the Capital Reserve Account related. In the event that there are insufficient
funds in the Capital Reserve Account to pay such cost, then to the extent of
such insufficiency, the cost shall be shared equally by the TOWN and LESSEE.
Payments from the Capital Reserve Account shall be made to LESSEE within 5
business days of invoice.
B. LESSEE'S WORK. LESSEE shall cause to be performed all work on the
Premises referred to in EXHIBIT B attached hereto, and such other work as may be
approved by the TOWN. All such work shall be performed in good and workmanlike
manner, with contractors approved by the TOWN (such approval not to be
unreasonably withheld, conditioned or delayed). Other than improvements listed
in EXHIBIT B, LESSEE shall not make any material alterations, additions or
improvements to the Premises without first obtaining the TOWN's written consent,
which consent will not be unreasonably withheld, conditioned or delayed. For
purposes of the foregoing, a material alteration, addition or improvement shall
be any item with a cost in excess of $25,000. LESSEE shall hold the TOWN
harmless from any and all costs incurred on account of any work performed on the
Premises, other than those which are payable from the Capital Reserve Account.
LESSEE shall (a) within 30 days after it is filed or claimed, have
released (by bonding or otherwise) any mechanics', materialman's or other lien
filed or claimed against any or all of the Premises, by reason of labor or
materials provided for LESSEE or any of its contractors or subcontractors, or
otherwise arising out of LESSEE's use or occupancy of the Premises, and (b)
defend, indemnify and hold harmless the TOWN against and from any and all
liability, claim of liability or expense (including, by way of example rather
than of limitation, that of reasonable attorneys' fees) incurred by the TOWN on
account of any such lien or claim.
C. NON-DISCRIMINATION. The LESSEE agrees that the portions of the Premises
open to the public (together with access thereto for purposes of using the
Premises) shall be equally available to all adult members of the public without
discrimination. Any discrimination by the LESSEE in the dispensing of food and
beverage as provided for herein or in the use of any golf facility hereinabove
described on grounds of race, sex, religion or national origin shall be deemed
to be a breach of this Lease. It is understood and agreed that seasonal
memberships shall not constitute a breach of this agreement nor do preferred
arrangements for members.
The LESSEE agrees that it will not discriminate against any employee or
applicant for employment, to be employed in the operation of the Premises or the
performance of this Lease with respect to his or her hire, tenure, terms,
conditions or privileges because of age, except when based on a bona fide
occupational qualification or because of race, sex, religion or national origin.
LESSEE understands that any such discrimination shall be deemed to be a breach
of this Lease.
ARTICLE V
[RESERVED]
ARTICLE VI
RENT; LETTER OF CREDIT
A. BASE RENT. During the Term of this Lease, LESSEE covenants and agrees
to pay to the Town annual base rent ("Base Rent") equal to all principal,
interest and
other payments (such other payments to be in amounts previously approved by
LESSEE) incurred by the TOWN in connection with any municipal bond financing(s)
entered into by the TOWN after the date hereof and prior to November 1, 2001 for
improvements to the Golf Course (provided that all such amounts have promptly
been made available to LESSEE for such improvements), plus the sums set forth on
EXHIBIT C attached hereto. The TOWN shall notify LESSEE as soon as reasonably
possible of such amounts. Payments equal to 1/2 of the annual Base Rent due for
the year in question shall be made semi-annually on the 15th day of April and
October.
The Base Rent shall be adjusted during the Renewal Term, if any, based on
the average Base Rent for fourth through twentieth years of the Term, adjusted
for changes in the Consumer Price Index ("CPI") since the date of this Lease,
with the CPI on the date hereof being considered the base CPI for purposes of
calculating the change in CPI over the Term.
B. ADDITIONAL RENT. In addition to Base Rent, LESSEE shall pay all costs
and expenses in connection with the operation, maintenance (excluding
Extraordinary Maintenance, as defined in Article IV A hereof) and repair of the
Premises, including but not limited to, real and personal property taxes,
plowing, mowing, seeding and all other costs and expenses related to the
Premises.
C. CAPITAL RESERVE ACCOUNT. In addition to base rent and additional rent,
LESSEE shall pay into the Capital Reserve Account the amounts referred to in
Article IV.
D. LETTER OF CREDIT. Simultaneously with the execution of this Lease, and
continuously during the Term hereof, LESSEE shall provide to the TOWN a letter
of credit in favor of the TOWN, which shall be renewed from time to time (but no
more often than annually) in order to comply with this paragraph, and shall be
maintained in effect throughout the Term and any Renewal Term of this Lease. The
letter of credit shall be issued by Fleet National Bank or other bank reasonably
acceptable to the TOWN, shall be available to be drawn on by the TOWN upon an
Event of Default by LESSEE under this Lease, and shall otherwise be upon terms
and conditions as reasonably acceptable to the TOWN in writing, and at any point
in time during the term of this Lease, shall be in an amount not less than the
total Base Rent due hereunder for the eighteen (18) month period next following
any such point in time, less amount of any payments for such time period as
listed on Exhibit C. The letter of credit shall otherwise be on terms and
conditions acceptable to the TOWN in its reasonable discretion.
ARTICLE VII
QUALITY OF GOLF COURSE
LESSEE shall have sole possession of, and responsibility for, maintenance
(except "Extraordinary Maintenance") of, the Premises, including all
improvements constructed thereon.
The TOWN, from time to time, at its sole election, may cause the USGA or
another outside party reasonably acceptable to LESSEE, inspect and report on the
status and condition of the Premises, and recommendations relating to the same,
and its use and status as a first class golf course, such inspections to be paid
for by LESSEE, provided that LESSEE shall be obligated to pay for such
inspections not more frequently than once every two (2) years.
The TOWN shall advise the LESSEE in writing of any material deficiency in
the maintenance of the Premises, as reported by such outside party. LESSEE shall
diligently commence efforts to correct all such deficiencies promptly upon
receipt of written request thereof from the TOWN, and shall complete such
correction within 45 days of such notice. If such deficiencies are of a nature
as cannot reasonably be corrected within such 45-day period, LESSEE shall
commence the correction of such deficiency within said 45 day period and shall
diligently pursue the correction of such deficiency. LESSEE may propose to the
TOWN a different time period to cure any such deficiency, but such different
time period shall not become the applicable time period without the written
consent of the TOWN, which consent shall not be unreasonably withheld,
conditioned or delayed. The cost to correct any deficiency (or group of
deficiencies identified as part of the same inspection) caused by LESSEE's
negligence in the operation of the Premises shall be paid for by LESSEE. The
cost to correct all other deficiencies (or group of deficiencies identified as
part of the same inspection) shall be paid for from the funds in the Capital
Reserve Account.
ARTICLE VIII
OPERATION
A. DISCOUNTED RATES. The parties acknowledge that LESSEE shall have the
right to determine and set the fees charged for golf play on the Premises. The
parties further acknowledge that LESSEE has historically offered discounts off
its standard rates to residents and taxpayers of the Town of Carrabassett Valley
for play during off-peak periods. LESSEE shall, during the Term and any Renewal
Term of this Lease, continue to offer similar discounts and programs to
residents and taxpayers of the Town of Carrabassett Valley for play during
off-peak periods.
B. COMPLIANCE WITH LAW. In its operation of the Premises, LESSEE shall
observe all applicable federal, state and municipal laws, regulations and
ordinances and shall take such actions as may be necessary to the protection of
health, safety and well-being of the public.
LESSEE and American Skiing Company shall jointly and severally defend,
protect, indemnify and save harmless the TOWN, its successors and assigns, from
and against any and all liabilities, claims, demands, losses, costs, expenses
(including attorneys' fees and costs) and causes of action of any nature
whatsoever arising out of or related to any breach or violation of this Article
VIII B.
C. FOOD SERVICE REGULATIONS. LESSEE shall, at its expense, meet the
requirements of local and state health departments covering the handling and
dispensing of food and beverages. Adequate toilet facilities shall be provided
at acceptable locations on the golf course and at the clubhouse. Refuse and
waste materials shall be handled as required by applicable state and local laws,
ordinances and regulations.
D. PERMITS. LESSEE agrees to procure, at its expense, all meters and
permits necessary for making connections and continuing utility services, and
for conducting all operations relating to the Premises.
E. GOLF TOURNAMENTS. For purposes of promoting the facility, the TOWN may
from time to time join with the LESSEE in holding major golf tournaments of
State and National significance.
F. WINTER USAGE. LESSEE agrees that off-season usage of Premises
(excepting the clubhouse, and greens area) by the public in conjunction with the
touring trail system of the Carrabassett Valley Touring Center for snow shoeing,
cross country skiing, and hiking will be permitted. Notwithstanding the
foregoing, no mechanized grooming of the Premises shall occur without the prior
written consent of the TOWN and LESSEE.
ARTICLE IX
INSURANCE
During the Term and any Renewal Term of this Lease, LESSEE shall procure
and keep in force, or shall, where appropriate, require LESSEE's contractors and
subcontractors to procure and keep in force, the following insurances, with
companies acceptable to the TOWN:
A. Workers' compensation insurance, sufficient to meet State of Maine
statutory requirements, including employers liability coverage,
protecting all employees of LESSEE and employees of its contractors
or subcontractors during the Term and any Renewal Term of this
Lease.
B. Comprehensive general liability insurance, including property, with
limits, as to bodily injury liability, of $1,000,000.00 for each
occurrence and $2,000,000.00 in the aggregate and, as to property
damages liability of $1,000,000.00 for each occurrence and
$2,000,000.00 in the aggregate. Insurance policies required by
this paragraph shall name LESSEE as an Insured and the TOWN (as
Landlord and Lessor) as an additional Insured. Such insurance
shall be made effective prior to the beginning of the Term of
this Lease and shall remain in effect during the entire Term and
any Renewal Term of this Lease.
C. Comprehensive automobile liability insurance with limits, as to
bodily injury liability, of $1,000,000.00 for each person and
$1,000,000.00 for each occurrence. Such insurance shall be made
effective prior to the beginning of the initial term of this Lease
and shall remain in effect during the entire term of this Lease.
D. If LESSEE fails to obtain or timely renew any insurance policy
required herein, the TOWN may obtain or renew such policy and LESSEE
shall promptly reimburse the TOWN for all costs associated with the
same.
E. LESSEE agrees that thirty (30) days notice in writing shall be given
the TOWN in the event of cancellation, non-renewal, termination or
material change in any insurance policy required hereunder.
Duplicate originals or certificates of all insurance policies required
hereunder shall be delivered to the TOWN prior to occupation of the Premises by
LESSEE. Copies of all renewal certificates shall be delivered to the TOWN upon
request. The entire amount collected for losses under any fire and extended
coverage policies shall be made available to repair, restore, or rebuild the
damage to the Premises. Any excess portion of the insurance fund remaining after
the cost of repairs, rebuilding or restoration is paid, shall be paid to the
LESSEE. In the event the insurance fund is insufficient to cover the cost of
repairs, rebuilding or restoration the excess cost shall be paid for from the
Capital Reserve Account.
The parties hereto agree to have the insurance needs referred to in this
Article reassessed at least every five (5) years to determine whether or not the
coverages are adequate, and if in the reasonable judgement of the parties the
then current insurance amounts are inadequate, such amounts shall be adjusted to
mutually agreed levels.
ARTICLE X
LANDLORD'S RIGHT OF ENTRY
The TOWN and its agents shall be entitled to enter the Premises at any
time during the LESSEE's business hours and at any other reasonable time (a) to
inspect the Premises (b) to exhibit the Premises to any existing or prospective
purchaser, tenant or Mortgagee thereof, (c) to make any alteration, improvement
or repair to the Premises, or (d) for any other purpose relating to the
operation or maintenance of the Premises; provided, that the TOWN shall (i)
(unless doing so is impractical or unreasonable because of emergency) give the
LESSEE at least twenty-four (24) hours' prior notice of its intention to enter
the Premises, and (ii) use reasonable efforts to avoid thereby interfering with
the LESSEE's use and enjoyment thereof.
ARTICLE XI
NO ASSIGNMENT OF LEASE
LESSEE shall not encumber, assign, sublet or otherwise transfer this Lease
or any interest herein, in whole or in part, unless and until the TOWN approves
such encumbrance, subletting or assignment in writing, which approval shall not
be unreasonably withheld. The TOWN hereby acknowledges and reaffirms its
existing consent to LESSEE's leasehold mortgage in favor of Fleet National Bank,
as agent (f/k/a BankBoston, N.A.)("Fleet"), and agrees not to unreasonably
withhold consent to any replacement leasehold mortgage on similar terms. The
TOWN shall not encumber, assign, sublet or otherwise transfer this Lease or any
interest herein, in whole or in part, unless and until the LESSEE approves such
encumbrance, subletting or assignment in writing, which approval shall not be
unreasonably withheld.
ARTICLE XII
SUBORDINATION; ATTORNMENT AND NON-DISTURBANCE
A. SUBORDINATION. Provided LESSEE receives a non-disturbance agreement in
form and substance reasonably satisfactory to LESSEE, this Lease shall be
subject and subordinate to the lien, operation and effect of each mortgage, deed
of trust, and/or other instrument of encumbrance heretofore or hereafter granted
or created by the TOWN, in each case in favor of the lender executing such
non-disturbance agreement, and covering any or all of the Premises (and each
renewal, modification, consolidation, replacement or extension thereof) (each of
which is herein referred to as a "Mortgage"), all automatically and without the
necessity of any action by either party hereto.
B. ATTORNMENT AND NON-DISTURBANCE. Subject to LESSEE'S rights under
Article XII(A), the LESSEE shall, promptly at the request of the TOWN or the
holder of any Mortgage (herein referred to as "Mortgagee"), execute, acknowledge
and deliver such further instrument or instruments on commercially reasonably
terms acceptable to LESSEE:
(i) evidencing such subordination as the TOWN or such Mortgagee
deems necessary or desirable, and
(ii) attorning to such Mortgagee, provided that such Mortgagee
agrees with the LESSEE that such Mortgagee will, in the event
of a foreclosure of any such mortgage or deed of trust take no
action to interfere with the LESSEE's rights hereunder, except
on the occurrence of an Event of Default.
ARTICLE XIII
DEFAULT; REMEDIES
A. EVENTS OF DEFAULT. As used in this Lease, each of the following events
shall constitute, and is hereinafter referred to as, an "Event of Default":
(i) if the LESSEE fails (a) to pay any Base Rent, additional
rent or other sum which it is obligated to pay by any
provision of this Lease, within thirty (30) days of the
date when due and payable hereunder, provided LESSEE
receives five (5) days prior written notice of such
failure, or (b) perform any of its other obligations under
the provisions of this Lease within thirty (30) days of
receipt of written notice from the Town of such failure; or
(ii) if the LESSEE (a) applies for or consents to the appointment
of a receiver, trustee or liquidator of the LESSEE or of all
or a substantial part of its assets generally, or as related
to the Premises, or (b) files a voluntary petition under any
federal or state bankruptcy, insolvency, or reorganization
law, or admits in writing its inability to pay its debts as
they come due, (c) makes an assignment for the benefit of its
creditors, (d) files a petition or an answer seeking a
reorganization or any arrangement with creditors, or seeks to
take advantage of any insolvency law, (e) performs any other
act of bankruptcy, or (f) files an answer admitting the
material allegations of a petition filed against the LESSEE in
any bankruptcy, reorganization or insolvency proceeding; or
(iii) if (a) a petition or complaint is filed against LESSEE under
any state or federal bankruptcy, insolvency, or receivership
law, including, without limitation, an involuntary petition
under the federal bankruptcy code (the "Bankruptcy Code"), or
a complaint to appoint a receiver under state law, or (b) an
order, judgment or decree is entered by any court of competent
jurisdiction granting in whole or in part any of the relief
requested in a petition or complaint described in (a) above,
or (c) there otherwise commences as to the LESSEE or any of
its assets any proceeding under any bankruptcy,
reorganization, arrangement, insolvency, readjustment,
receivership or similar law, and if such proceeding continues
unstayed for more than sixty (60) consecutive days after any
stay thereof expires; or
(iv) if the LESSEE (a) fails to occupy and assume possession of the
Premises within fifteen (15) days after the Commencement Date
or (b) fails to continuously occupy and operate the Premises
pursuant to the terms hereof; or
(v) if there shall be a Change in Control of LESSEE, defined as
the sale or transfer of a majority of the stock of LESSEE, or
a sale, lease, disposition or transfer (other than encumbrance
in the ordinary course of business) of substantially all of
the assets of LESSEE, in either case without the prior consent
of the Town, which consent shall not be unreasonably withheld,
conditioned or delayed; provided, however, that the exercise
of rights under any
pledge of stock in LESSEE in favor of Fleet or any successor
or replacement lender holding a leasehold mortgage to which
the Town has consented under Article XI shall not be deemed a
Change in Control, but that any further sale or transfer of a
majority of any stock so pledged shall be deemed a Change of
Control; or
(vi) if LESSEE fails to obtain, prior to December 15, 2000, upon
terms reasonably satisfactory to the TOWN, the release of the
Other Assets (or subordination, with respect to easements
comprising a portion of the Other Assets) from the lien of any
mortgage or other encumbrance affecting the same; or
(vii) if LESSEE fails to pay its debts to creditors generally as
they become due.
B. REMEDIES. Upon the occurrence of any Event of Default, the TOWN
may do any one or more of the following:
(i) terminate this lease, by giving written notice to Lessee of such
termination; and/or
(ii) re-enter and repossess any or all of the Premises and any or all
improvements thereon and additions thereto, and receive from LESSEE
all reservations and deposits related to the Premises held by
LESSEE. In connection therewith, LESSEE shall cooperate with the
TOWN in accomplishing an orderly transfer of the Premises and will
assist with the transitional issues such as staffing and operations;
and/or
(iii) declare the entire balance of the Base Rent for the remainder of the
Term or Renewal Term hereof, as applicable, to be due and payable
immediately, and collect such balance in any manner not inconsistent
with applicable law. Accelerated payments hereunder shall not
constitute a penalty or forfeiture or liquidated damages, but shall
merely constitute payment of rent in advance, provided, however,
that LESSEE shall be entitled to a credit against such sums for any
rents or proceeds (net of commissions and other costs of reletting)
received by the Town from re-letting or operating the Premises
during all or any portion of the Term; and/or
(iv) in the TOWN's own name but either (i) as agent for the LESSEE, if
this Lease has not then been terminated, or (ii) for the benefit of
the LESSEE, if this Lease has then been terminated, relet any or all
of the Premises with or without any additional premises, for any or
all of the remainder of the Term or Renewal Term hereof, as
applicable, (or, if this Lease has then been terminated, for any or
all of the period which would, but for such termination, have
constituted the remainder of the Term or Renewal Term) or for a
period exceeding such remainder, on such terms and subject to such
conditions as are commercially reasonably, and collect and receive
the rents therefor. Anything contained in the provisions of this
Lease to the contrary notwithstanding, (i) the TOWN shall not have
any duty or
obligation to relet any or all of the Premises as the result of any
Event of Default, or any liability to the LESSEE or any other person
for any failure to do so or to collect any rent or other sum due
from any such reletting; and (ii) the LESSEE shall have no right in
or to any surplus which may be derived by the TOWN from any such
reletting, in the event that the proceeds of such reletting exceed
any rent due hereunder, installment thereof or other sum owed by the
LESSEE to the TOWN hereunder; and/or
(v) Cure such Event of Default in any other manner, but such cure, if
performed by or for the account of the TOWN, shall not constitute a
cure of any such default as to LESSEE, or a waiver of any rights of
the TOWN; and/or
(vi) Pursue any combination of such remedies and/or any other right or
remedy available to the TOWN on account of such Event of Default
under this Lease and/or at law or in equity.
Nothing herein contained shall limit or prejudice the TOWN's right to
obtain as damages, by reason of such termination, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved.
C. LESSEE TO REMAIN LIABLE. No such expiration of termination of this
Lease, or summary dispossession proceedings, abandonment, reletting, bankruptcy,
re-entry by the TOWN or vacancy, shall relieve the LESSEE of any of its
liabilities and obligations under this Lease (whether or not any or all of the
Premises are relet), and the LESSEE shall remain liable to the TOWN for all
damages resulting from any Event of Default, including but not limited to, any
damage resulting from the breach by the LESSEE of any of its obligations under
this Lease to pay rent and any other sums which the LESSEE is obligated to pay
hereunder.
D. ADDITIONAL REMEDIES. In addition to the TOWN's remedies set forth
above, the TOWN may, at its sole discretion and without notice, invoke the
following provisions:
(i) Upon the filing by or against LESSEE of any petition under the
Bankruptcy Code, to the fullest extent permitted by law, this
Lease and all rights of the LESSEE hereunder shall automatically
terminate with the same force and effect as if the date of any
such event were the date stated herein for the expiration of the
Term, or Renewal Term, as applicable, and the LESSEE shall vacate
and surrender the Premises, but shall remain liable as herein
provided. The TOWN reserves any and all remedies provided herein
or at law or in equity.
(ii) If this Lease is not terminated by the TOWN as set forth above
because such termination is not permitted under the Bankruptcy Code
upon the filing of a petition by or against LESSEE under the
Bankruptcy Code, the
LESSEE as LESSEE, and as debtor and debtor in possession, and any
trustee who may be appointed, shall be conclusively deemed to have
agreed as follows:
(a) TOWN cannot be required by applicable state of federal law,
other than the Bankruptcy Code, to accept performance from or
to render performance to a party other than LESSEE, the debtor
or the debtor in possession;
(b) to perform promptly each and every obligation of the LESSEE
under this Lease until such time as this Lease is either
terminated, or is rejected or assumed by order of a United
States Bankruptcy Court or other United States Court of
competent jurisdiction; or deemed rejected by operation of
law, pursuant to 11 U.S.C. ss.365(c)(4);
(c) to pay in advance on the 15th day of each April and October as
reasonable compensation for use and occupancy of the Premises
an amount equal to one half of all annual Base Rent and all
additional rent.
(d) to reject or assume this Lease within sixty (60) days of the
filing of such petition under Chapter 7 of the Bankruptcy Code
or within thirty (30) days of the filing of a petition under
any other Chapter, or within such earlier time as may be
required under the Bankruptcy Code;
(e) to give the TOWN at least forty-five (45) days prior written
notice of any proceeding relating to any assumption of this
Lease;
(f) to give the TOWN at least thirty (30) days prior written
notice of any abandonment of the Premises, any such
abandonment to be deemed conclusively a rejection of this
Lease;
(g) to be deemed conclusively to have rejected this Lease in the
event of the failure to comply with any of the above; and
(h) to have consented to the entry of an order by an appropriate
United States Bankruptcy Court providing all of the above,
waiving notice and hearing of the entry of same.
ARTICLE XIV
HAZARDOUS MATERIALS
The LESSEE represents and warrants to the TOWN that the present use and
condition of the Premises comply with all applicable state and federal
environmental laws, regulations and ordinances. LESSEE covenants that it will
not introduce or permit to be introduced or located on the Premises any
Hazardous Materials in violation of law any Hazardous Materials as hereafter
described, and that the LESSEE will not violate any Environmental Laws in
connection with the LESSEE's use, maintenance or operation of the Premises,
including but not limited to the maintenance garages comprising a portion of the
Premises (the "Maintenance Garages"), and the LESSEE shall, and hereby does,
totally and completely defend, save, and hold harmless the TOWN, its employees,
agents, officers, trustees, trust beneficiaries, and directors, successors and
assigns (the "Indemnified Parties") from and against, and shall promptly pay to
or reimburse the Indemnified parties for, all claims, demands, actions, losses,
penalties, costs, expenses and damages, including all attorneys' fees and
expenses and court costs (including any of the same incurred in connection with
enforcing this indemnity), investigation and laboratory fees, and cleaning and
removal costs incurred by or asserted against the Indemnified Parties by reason
of the inaccuracy or breach of the covenant contained in this subparagraph. Upon
termination of this Lease, the LESSEE covenants and agrees to remove any and all
Hazardous Materials introduced by it in violation of this Lease at its sole
expense. The LESSEE acknowledges and agrees that the expiration or sooner
termination of this Lease shall not relieve or release the LESSEE of any legal
liability or responsibility whether by way of damages, penalties, remedial
actions or otherwise for unlawful discharges of Hazardous Materials. As used
herein, "Hazardous Materials" shall mean any flammable explosives, radioactive
materials, hazardous materials, hazardous waste, hazardous matter, hazardous or
toxic substances, or toxic pollutants, oil or waste oil as any of those terms
are used or defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. ss.ss.9601 et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. ss.ss.2802, et
seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C.
ss.ss.6901, et seq.), applicable Maine statutes or any similar federal, state or
local law, or in the regulations adopted and publications promulgated pursuant
thereto, including all amendments to such laws and regulations and all
supplements or successors thereto, or any other pollutants, contaminants,
substances or materials that may constitute a hazard, peril or threat to the
health of persons, animals, plant life or the environment; excepting, however,
"Hazardous Materials" shall not for the purposes hereof include any materials or
substances in amounts or concentrations insufficient to require any remedial
action under any applicable law, order, rule or regulation of the federal, state
or local governments.
LESSEE and American Skiing Company shall jointly and severally defend,
protect, indemnify and save harmless the TOWN, its successors and assigns, from
and against any and all liabilities, claims, demands, losses, costs, expenses
(including reasonable attorneys' fees and costs) and causes of action of any
nature whatsoever arising out of or related to any breach or violation of this
Article XIV.
ARTICLE XV
INDEMNIFICATION
LESSEE shall defend, protect, indemnify and save harmless the TOWN, its
successors and assigns, from and against any and all liabilities, claims,
demands, losses, costs, expenses (including attorneys' fees and costs) and
causes of action of any nature whatsoever for injury to or death of persons or
loss or damage to property, occurring on the Premises or in any manner growing
out of or connected with the LESSEE's use and occupation of the Premises,
including but not limited to the Maintenance Garages, or the physical or
environmental condition of the Premises, including but not limited to the
Maintenance Garages, arising during the Term or Renewal Term of this Lease,
together with all costs and expenses (including reasonable attorneys' fees and
expenses) in connection with enforcing this indemnity.
ARTICLE XVI
WAIVER OF DEFAULT
Any waiver by the TOWN of any default or breach of this Lease in any one
instance shall not be construed to be a continuing waiver of such default or
breach, nor as a waiver or permission, express or implied, of any other or
subsequent default or breach.
ARTICLE XVII
FORCE MAJEURE
If by reason of strike, lockout, war, rebellion, material or labor
shortage due to a national emergency, fire, flood, hurricane or other casualty,
periods of excessive rain, or by any other matter not within its control, the
TOWN or LESSEE in good faith and without fault or neglect on its part is
prevented or delayed in the meeting of any condition except as relates to rental
payments or the maintenance of insurance which, under the terms of this Lease,
it is required to do or perform within a specified period of time, the period of
time within which such performance was to have been completed shall be extended
by a period of time equal to that of such delay or prevention, and the TOWN or
LESSEE, as the case may be, shall not be deemed to be in default if it
diligently performs and completes such work or covenant or specified period of
time as so extended.
ARTICLE XIII
EASEMENTS
This Lease is subject to all easements affecting the Premises that are on
record in the offices of the Registry of Deeds of Franklin County, and any
easements permitted to be granted hereafter.
ARTICLE XIX
GENERAL CLAUSES
A. BINDING NATURE. All references to the parties to this Lease and all
covenants, conditions and agreements of this Lease shall apply to and be binding
upon the TOWN and LESSEE and their respective heirs, executors, administrators,
legal representatives, successors and assigns (when assignment is made by LESSEE
in accord with the provisions hereof) as if they were in each case fully named
and stated. In this Lease, both the TOWN and LESSEE are referred to in the
singular and neuter gender. However, such words and all other terms and words
used in this Lease regardless of the number and gender in which they are used,
shall be deemed and construed to include any other number (singular or plural)
and any other gender, masculine, feminine or neuter, as the sense of the writing
herein may require, the same as if such words had been fully and properly
written in the required number and gender.
B. UNIQUE NATURE OF RELATIONSHIP OF PARTIES TO THIS LEASE. The TOWN and
LESSEE each acknowledge and agree that in entering into this Lease, they are
relying upon the unique attributes, abilities, goodwill, reputation, management
skill, and other characteristics of each other, and that performance of this
Lease, or any of the provisions of this LEASE, by any other party would not be
acceptable and would not constitute adequate consideration for entering into of
this Lease. The TOWN and LESSEE each acknowledge and agree that they would not
enter into a lease, upon the same terms and conditions hereof, with any other
party.
C. NOTICES. All notices to the TOWN shall be sent by certified or
registered mail addressed to the Town Manager, Carrabassett Valley, Kingfield,
ME 04947, or at such other address as the TOWN may in writing from time to time
designate by written notice to the LESSEE. All notices to LESSEE shall be sent
by certified or registered mail addressed to LESSEE at Carrabassett Valley, ME
04947, with a copy by telecopier to Samuel L. Richardson, Goodwin, Procter &
Hoar LLP, Exchange Place, Boston, MA 02149, Fax 617-227-8591, or at such other
addresses as LESSEE may from time to time designate by written notice to the
TOWN.
D. APPLICABLE LAW; SEVERABILITY. This Lease is made under the applicable
laws of the State of Maine and if any term, clause, provision, part or portion
of this Lease shall be adjudged invalid or illegal for any reason the validity
of any other part or portion of this Lease shall not be affected thereby any
invalid or illegal term, clause, provision, part or portion shall be deleted and
ignored as if the same had not been written.
E. DUE AUTHORIZATION. The TOWN and LESSEE each represent and warrant to
the other that the execution, delivery and performance by them of this Lease and
each of the transactions contemplated hereby have been authorized by all
necessary corporate (in the case of LESSEE) or municipal (in the case of the
Town) actions.
IN WITNESS WHEREOF, the parties have caused this Lease to be executed as
of the ____ day of November, 2000.
TOWN OF CARRABASSETT VALLEY
/s/ David Cota By: /s/ Robert Luce
- ------------------------------ ---------------------------------------
Witness
SUGARLOAF MOUNTAIN
CORPORATION
/s/ Jennifer S.G. Dionne By: /s/ Foster A. Stewart, Jr.
- ------------------------------ ---------------------------------------
Witness Its: Vice President
American Skiing Company hereby joins in this lease for purposes of Article
and XIV hereof.
American Skiing Company
By: /s/ Foster A. Stewart, Jr.
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LIST OF EXHIBITS
EXHIBIT A
A complete legal description of the Premises will be attached.
EXHIBIT B
Tenant's Work.
EXHIBIT C
Base Rent