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EXHIBIT 10.9
GOLF COURSE AGREEMENT
This Golf Course Agreement is made as of the 10th day of July, 1996 by
and between Howard Hughes Properties, Limited Partnership, a Delaware limited
partnership ("HHP"), Summerlin Corporation, a Delaware corporation and
Tournament Players Club at Summerlin, Inc., a Nevada corporation ("TPC").
RECITALS
A. HHP is constructing an eighteen hole championship golf course
which is commonly referred to as "The TPC at The Canyons" golf course (the
"Canyons Golf Course"). The Canyons Golf Course is located on the real
property described on Attachment "A" hereto (the "Golf Course Property").
B. Upon completion of the Canyons Golf Course, TPC will be the
operator of the Canyons Golf Course pursuant to the terms of that certain
Operating Agreement dated April 27, 1989 by and between TPC and Summa
International Corporation ("SIC") as predecessor in interest to Summerlin
Corporation.
C. HHP also owns and TPC operates an existing eighteen hole
championship golf course in the vicinity of the Canyons Golf Course commonly
known as the "TPC at Summerlin" (the "Stadium Course") which is the home course
of the Las Vegas Invitational PGA TOUR tournament (the "LVI").
D. TPC is an indirect wholly owned subsidiary of PGA TOUR, Inc.,
a Maryland corporation ("PGA TOUR").
E. HHP intends to sell the property immediately adjacent to the
Golf Course Property which is described on Attachment "B" hereto (the "Resort
Parcel") to a third party for development by such third party in compliance
with a general plan of development acceptable to HHP.
F. The development on the Resort Parcel is intended to consist of
a resort style hotel and gaming casino (the "Resort"). The third party
operator to whom HHP sells the Resort Parcel is hereinafter referred to as the
"Resort Operator".
G. HHP desires that the Resort Operator have the right to select
preferred starting times and other preferential accommodations at the Canyons
Golf Course in connection with the operation and marketing of the Resort
consistent with the terms of this Agreement and that such right run with the
land to the benefit of the Resort Operator.
H. TPC has the right to acquire the Golf Course Property and the
Canyons Golf Course pursuant to the terms of that certain Basic Agreement dated
April 27,1989 by and between TPC and Summa International Corporation and that
certain Option Agreement dated __________ by and between TPC and Summa
International Corporation.
AGREEMENT
ARTICLE 1. PREFERRED STARTING TIMES
1.1 Except as otherwise provided in this Agreement, TPC agrees
that Resort Operator will have the right to select and market a portion of the
starting times at the Canyons Golf Course as follows:
(a) For purposes of this Agreement all unreserved starting times
for play at the Canyons Golf Course will be deemed to be in one of two
"pools": the "Resort Pool" and the "Common Pool."
(i) Resort Operator shall have the exclusive right to
reserve any starting time in the Resort Pool at any time in
the manner provided below.
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(ii) Resort Operator may also reserve any starting time in
the Common Pool in the same manner and subject to the same
terms and conditions which apply, from time to time, to
members of the general public. TPC shall have the right to
reserve starting times in the Common Pool to any persons
including members of the general public upon such terms and
conditions as TPC may establish in its discretion from time to
time. TPC shall notify Resort Operator of any modification in
such terms and conditions applicable to the general public
before they take effect
(b) Resort Operator will reserve starting times by "Booking" (as
hereinafter defined) such times with TPC. Booking will be
accomplished by delivering a written notice (a "Booking Notice") to
the TPC Golf Coordinator (hereinafter defined) on a form that is
reasonably acceptable to Resort Operator and TPC. "Booking" shall
mean identifying a starting time by date and time of play and
specifying on the Booking Notice that such starting time is being
reserved by Resort Operator in one of the following three ways:
(i) Outing. Resort Operator may, at any time, Book any
starting time in the Resort Pool for a golf outing. A "golf
outing" shall mean a group of 16 or more players commencing
play in consecutive starting times.
(ii) Specific Group. Resort Operator may also, at any
time, Book any starting time in the Resort Pool for a specific
group of two to four persons by identifying at least one
person in the group by name.
(iii) Guaranty. Resort Operator may also, at any time,
Book any starting time in the Resort Pool for one to four
persons who are not yet identified as provided in subsection
(b)(ii) and are not part of a golf outing as provided in
subsection (b)(i); provided, Resort Operator shall in such
case guaranty payment of green fees and cart fees for such
starting time.
(c) The number of starting times available in the Resort Pool will
initially be as provided in subsection (c)(i) below and such number
will diminish as they are Booked by Resort Operator pursuant to this
Agreement or as the day of play approaches as follows:
(i) With respect to any day that is at least 180 days
prior to the day Resort Operator delivers a Booking Notice,
50% of all starting times (or 75% if Resort Operator has
exercised the option under Section 2.2) will be in the Resort
Pool and 50% will be in the Common Pool. If there are an odd
number of starting times available on such day the number in
the Common Pool will be one less than the number in the Resort
Pool. TPC will not reserve any starting times for any party
other than Resort Operator more than 180 days in advance of
the day of play except as provided in Section 1.10..
(ii) One-half (50%) of the starting times in the Resort
Pool that have not been Booked at least 90 days in advance of
the day of play will be transferred from the Resort Pool to
the Common Pool. All starting times then remaining in the
Resort Pool may be Booked by Resort Operator as provided in
subsection 1.1(b).
(iii) One-half (50%) of the starting times in the Resort
Pool that have not been Booked at least 45 days in advance of
the day of play will be transferred from the Resort Pool to
the Common Pool.
(iv) All starting times in the Resort Pool that have not
been Booked at least 14 days in advance of the day of play
will be transferred from the Resort Pool to the Common Pool.
(v) Whenever there are an odd number of starting times in
the Resort Pool on a day that Resort Pool times are to be
transferred pursuant to (ii), (iii) or (iv) above, the number
transferred to the Common Pool will be one less than the
number left in the Resort Pool.
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1.2 The foregoing right to reserve starting times will commence
upon and is contingent upon the opening of the Resort.
1.3 Resort Operator will be responsible for all starting times
previously Booked by Resort Operator pursuant to subsections 1.1 (b)(i) and
(b)(ii) and canceled less than seven days in advance of the date of play if not
otherwise filled; provided, TPC will use all commercially reasonable efforts to
fill such vacated starting times. Resort Operator will pay the green fees and
cart fees for such starting times within 30 days of invoice from TPC.
1.4 All green fees and cart fees will be determined solely by the
TPC. The fees charged to Resort Operator's guests will be the same as those
charged non-guests (other than the rates charged to Summerlin residents and
members of the TPC network and PGA TOUR member professionals). Any discounts
or special fee arrangements made available to members of the general public
will also be made available to guests of the Resort on substantially the same
terms and conditions.
1.5 TPC shall determine the number of rounds of play at the
Canyons Golf Course in its sole discretion. The parties acknowledge that
capacity of the course, in order to maintain a quality golf experience, is
estimated to be approximately 50,000 rounds, depending on weather conditions.
In addition, the parties acknowledge that a decrease in the availability of
water as a result of governmental restrictions could limit play on the Canyons
Golf Course.
1.6 TPC will have the right to enter into bill-back arrangements
with other hotels for starting times in the Common Pool.
1.7 TPC will have the right to promote and to market daily fee
play of Common Pool starting times in its discretion.
1.8 TPC and Resort Operator shall each designate to the other,
from time to time, an individual responsible for coordination of reservations
pursuant to this Agreement. The person designated by TPC (the "TPC Golf
Coordinator") will have principal responsibility for ensuring compliance by TPC
with the terms of this Agreement. The person designated by Resort Operator (the
"Resort Operator Golf Coordinator") will be responsible for coordinating with
the TPC Golf Coordinator and will be the only person authorized to deliver
Booking Notices; provided that an alternate person may from time to time be
designated by Resort Operator to act in the absence of the Resort Operator Golf
Coordinator.
1.9 Resort Operator will use all reasonable efforts to fill out a
foursome by grouping together any twosomes or threesomes with other twosomes or
unaccompanied players. TPC acknowledges, however, that certain guests of the
Resort may object to playing with strangers and it may not always be possible
to combine such guests with others to fill out foresomes. TPC may, subject to
Resort Operator's consent, fill out foresomes by combining Resort guests with
other players. If Resort Operator does not consent to TPC filling out a party
or unaccompanied player to make a foursome, Resort Operator will be responsible
for the fees that would otherwise be payable for the remaining unused spots in
the foresome.
1.10 The foregoing rights shall be subject to TPC's right to
schedule golf outings (a "TPC Outing") on the Canyons Golf Course as follows:
(a) a TPC Outing shall mean a group of not less than 72 players
with a shotgun start prior to 8 a.m. or after 1 p.m.
(b) TPC will advise Resort Operator of the TPC Outing at least 210
days prior to the day of play.
(c) TPC Outings shall not be scheduled in the months of February,
March, April, May, September, October, or November.
(d) there will be not more than six (6) TPC Outings in any
calendar year without Resort Operator's consent.
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(e) any remaining times available on the day of a TPC Outing will
be placed in the Resort Pool and will be subject to Resort Operator's
Booking rights as set forth in Section 1.1; subject, however, to
transfer to the Common Pool in accordance with subsections 1.1 (c)
(ii), (iii) and (iv).
(f) any starting times that would have been in the Resort Pool and
available for Resort Operator's use but for the effect of this Section
1.10 will be added to the Resort Pool on another day of Resort
Operator's choice in order that the total annual number of Resort Poll
starting times shall not be diminished as a result of TPC Outings.
ARTICLE 2. RESERVATION FEE. In consideration of the preferred
starting times and other preferential accommodations at the Canyons Golf
Course, Resort Operator will pay to TPC a fee (the "Reservation Fee") as
follows:
2.1 The Reservation Fee will initially be $ 500,000 per year
payable in equal quarterly installments due on the first day of each calendar
quarter during the term of this Agreement commencing on the earlier of (a) the
opening of the Resort or (b) December 31, 1998 (the "Fee Commencement Date").
The Reservation Fee shall be prorated for any partial quarter in which the Fee
Commencement Date occurs. The Reservation Fee will increase on the fifth
anniversary of the Fee Commencement Date and each successive fifth anniversary
of the Fee Commencement Date thereafter by an amount equal to 15% of the amount
paid in the preceding five year period. Therefore, by way of example, the
Reservation Fee will be $ 500,000 in each of years 1 through 5; $ 575,000 in
each of years 6 through 10; $ 661,250 in each of years 11 through 15; and so
on: subject, however to the terms of Section 2.2.
2.2 Resort Operator will have the option to increase the number of
preferred starting times by written notice to TPC. Subject to the terms of
Section 2.3 below, following exercise of such option, the number of starting
times initially in the Resort Pool under subsection 1. 1 (c)(i) will increase
to 75%. Upon exercise of such option, the annual Reservation Fee will increase
by $125,000 (the "Fee Adjustment") if the option is exercised prior to the
fifth anniversary of the Fee Commencement Date. The amount of the Fee
Adjustment will increase on the fifth anniversary of the Fee Commencement Date
and each successive fifth anniversary of the Fee Commencement Date thereafter
by an amount equal to 15% of the amount of the Fee Adjustment in the preceding
five year period. The increased number of starting times and the increased
Reservation Fee will become effective ninety (90) days after exercise of such
option by Resort Operator. The automatic increases in the Reservation Fee
referred to in Section 2.1 shall thereafter be based on the Reservation Fee in
effect following exercise of the option.
2.3 The increased availability of starting times pursuant to
Section 2.2 will be subject to reduction for any reservations made by the TPC
relating to this 25% of the starting times prior to exercise of such option.
The increased Reservation Fee shall also be reduced proportionately.
2.4 The obligation of Resort Operator to pay the Reservation Fee
is not in any way contingent on Resort Operator's exercise of its right to
reserve starting times.
ARTICLE 3. CASINO MARKETING. In any promotion or advertising by
Resort Operator of its relationship with the TPC, (i) no reference will be made
that the TPC is associated with a casino or with gambling, (ii) the name and
description of the Resort will contain no reference to gambling or the
operation of a casino, and (iii) there shall be no use of any PGA TOUR member
professional player's name or likeness without the player's written consent. TPC
will have right to review all marketing and promotional materials that refer to
the TPC in order to ensure compliance with the terms of this Article 3.
ARTICLE 4. PGA TOUR TOURNAMENTS.
4.1 TPC anticipates that a PGA TOUR sanctioned senior tournament
(the "Senior Tournament") will be held at the Canyons Golf Course once each
year. During the ten (10) day period ending on and including the day following
the Senior Tournament (typically a Monday), the Canyons Golf Course will not be
available to Resort Operator's guests. TPC may impose other additional
reasonable play restrictions in weeks leading up to the Senior Tournament.
Resort Operator will have an opportunity to become a sponsor of the
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Senior Tournament subject to such charges and limitations as determined by PGA
TOUR and provided (i) there is not an existing sponsor of the Senior
Tournament, and (ii) there shall be no mention of gambling in connection with
such sponsorship without TPC's consent. Resort Operator will be notified of
the date of the Senior Tournament for the upcoming year as soon as the schedule
is finalized by the PGA TOUR. The Canyons Golf Course will also be closed from
time to time for normal agronomic considerations such as overseeding and routine
maintenance as required.
4.2 Resort Operator acknowledges that there will be routine
"set-up" and "tear-down" activities customary to professional golf tournaments
approximately 6 weeks before and 2 weeks after each Senior Tournament; provided,
TPC will use all reasonable efforts to minimize the impact of such activities
on normal play of the Canyons Golf Course.
4.3 Resort Operator agrees to make available up to 150 rooms at
the Resort during the Senior Tournament for participants and officials and
other persons designated by the PGA TOUR who are connected to the operation of
the Senior Tournament. PGA TOUR will notify Resort Operator of the number and
dates for rooms at least thirty (30) days in advance of the Senior Tournament
and will guaranty all reservations. Rooms will be offered at the Resort's
"casino rate" in effect ninety (90) days prior to the Senior Tournament.
4.4 TPC anticipates that the LVI or another PGA TOUR sanctioned
tournament will be held at the Stadium Course once each year, typically in
October (the "Stadium Course Tournament"). Notwithstanding the terms of Article
2 hereof, TPC reserves the right to priority access to 50% of the starting
times on the Canyons Golf Course for the ten (10) day period ending on and
including the day following the Stadium Course Tournament (typically a Monday).
Any starting times that would have been in the Resort Pool and available for
Resort Operator's use but for the effect of this Section 4.4 will be added to
the Resort Pool on another day of Resort Operator's choice in order that the
total annual number of Resort Poll starting times shall not be diminished as a
result of Stadium Course Tournaments.
ARTICLE 5. GOLF OPERATION.
5.1 Resort Operator may arrange group play subject to the
following terms:
(a) A "group" is defined as 16 or more players commencing play in
consecutive starting times.
(b) Shotgun starts will be limited to groups of 72 players or
more. Shotgun starting times must be set prior to 8 a.m. or after 1
p.m. in peak season, which shall be deemed to be February 1 through
June 1 and September 1 through December 1. All shotgun starting times
will be determined at the discretion of the TPC. All persons
participating in a shotgun start will pay the golf fee then in effect
as well as a surcharge of $10 (with an annual escalator based on the
CPI) per player. Such surcharge will cover the additional costs
incurred by the TPC for providing a shotgun start.
5.2 The Resort Operator, at its option, may also purchase
additional golf tournament services from the TPC such as scorecard
preparations, scoring assistance, long drive and closest to the pin
competitions.
5.3 The TPC will provide bag storage for guests of Resort
Operator. The fee will be charged at a flat rate per day or such other method
as agreed to by TPC and Resort Operator. The Resort Operator or the player
will be responsible for transportation of clubs to the Canyons Golf Course.
5.4 Resort Operator will receive at no cost to Resort Operator a
network membership with both accompanied and unaccompanied guest privileges to
other clubs in the TPC Network. This will allow Resort Operator to entertain
meeting planners and other tour group decision makers at TPCs around the
country pursuant to applicable club bylaws and rules and regulations and rules
then in effect for access to TPC Network Facilities.
5.5 TPC will use its best efforts to cause PGA TOUR to provide the
following at no cost to Resort Operator:
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(a) a 15 to 20 minute video prepared by PGA TOUR Productions of a
quality similar to the Best Set of Clubs video.
(b) access to mailings for TPC members and PGA TOUR Partners (so
long as such program is in existence). Although PGA TOUR will not
share its mailing lists, TPC will use its best efforts to cause PGA
TOUR to include Resort Operator's materials in an annual special
mailing with Resort Operator responsible for any additional costs.
(c) promotional exposure in ON TOUR magazine (so long as it is
published) and television exposure on "Inside the PGA TOUR" (so long
as it is televised).
ARTICLE 6. AGREEMENT RUNS WITH THE LAND
6.1 This Agreement touches and concerns the real property
described herein as the Golf Course Property and the Resort Parcel and runs
with the land binding on the successors in title of the Golf Course Property
and for the benefit of the owners of the Resort Parcel and their respective
successors and assigns.
6.2 The parties agree to record a memorandum of this Agreement in
the form of Attachment "C" hereto. In the event this Agreement is terminated
for any reason the parties agree to record a memorandum of termination.
ARTICLE 7. DEFAULT AND REMEDIES
7.1 Resort Operator's Default. The Resort Operator shall be in
default under this Agreement upon the happening of any of the following events
or conditions ("Events of Default"):
(a) Failure of Resort Operator to make any payment required by
this Agreement when due. In such event, TPC shall deliver to Resort
Operator a notice of default and Resort Operator shall have ten days
to cure such default, except, however, no notice of default and no
opportunity to cure shall be required if during any six month period
TPC has already sent one notice to Resort Operator concerning
nonpayment or late payment under this Agreement.
(b) Failure of Resort Operator to perform any other obligation
contained in this Agreement within ten days after notice from TPC
specifying the nature of the default or, if the default cannot be
cured within ten days, failure within such time to commence and
pursue curative action with reasonable diligence.
(c) Any representation, warranty, certification or statement made
or furnished to TPC herein or in any other document by or on behalf of
Resort Operator proves to have been untrue in any material respect
when made or furnished.
(d) The commencement by Resort Operator of a voluntary case under
the federal bankruptcy laws or under other federal or state law
relating to insolvency or debtor's relief; the entry of a decree or
order for relief against Resort Operator in an involuntary case under
the federal bankruptcy laws or under any other applicable federal or
state law relating to insolvency or debtor's relief; the appointment or
the consent by Resort Operator to the appointment of a receiver,
trustee, or custodian of Resort Operator or of any of Resort
Operator's property; an assignment for the benefit of creditors by
Resort Operator or Resort Operator's failure generally to pay its
debts as such debts become due.
(e) The making or suffering by Resort Operator of a fraudulent
transfer under applicable federal or state law; concealment by Resort
Operator of any of its property from creditors; the making or
suffering by Resort Operator of a preference within the meaning of the
federal bankruptcy law; or the imposition of a lien through legal
proceedings or distraint upon any of the property of Resort Operator.
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7.2 TPC's Default. The TPC shall be in default under this
Agreement upon the happening of any of the following events or conditions
("Events of Default"):
(a) TPC fails in a material way to honor the Resort Operator's
request for reservation of starting times in accordance with the terms
of Article 1. In the event of any such failure, Resort Operator shall
deliver to TPC a notice of default specifying the particulars of such
default such as the times and guests involved in such failures. TPC
shall not be deemed to be in default if no subsequent failure occurs
at any time during the three month period following such notice to
TPC.
(b) Failure of TPC to maintain the Canyons Golf Course as a first
class eighteen hole championship golf course. In the event of any
such failure, Resort Operator shall deliver to TPC a notice of default
specifying the particulars of such failure to maintain and TPC shall
have ten days to cure such default.
7.3 TPC's Remedies.
(a) Nonpayment of the Reservation Fee. When any Event of Default
in payment of the Reservation Fee by the Resort Operator has occurred,
and is continuing, TPC may, as its sole and exclusive remedy, declare
this Agreement to be in default and terminate this Agreement and the
term hereof upon written notice to Resort Operator and proceed by
appropriate action to recover all amounts then due and payable by
Resort Operator to TPC hereunder and the costs and expenses incurred
by TPC arising from such Event of Default including, without
limitation, reasonable attorneys' fees and expenses. The foregoing
remedy is intended and agreed to be the exclusive remedy in law or in
equity available to TPC for the breach by Resort Operator of the
obligation to pay the Reservation Fee and TPC shall have no other
remedy against Resort Operator for such default.
(b) Other Default. When any Event of Default other than payment of
the Reservation Fee by the Resort Operator has occurred, and is
continuing, TPC may pursue any remedy available to it at law or in
equity.
7.4 Resort Operator's Remedies. When any Event of Default by the
TPC has occurred, and is continuing, Resort Operator may, at is option and
without further notice, declare this Agreement to be in default and exercise
either (but not both) of the following remedies:
(a) Terminate this Agreement and the term hereof upon written
notice to TPC and proceed by appropriate action to recover all amounts
then payable by TPC to Resort Operator hereunder and costs and
expenses incurred by Resort Operator arising from such Event of
Default including, without limitation, reasonable attorneys' fees and
expenses.
(b) Proceed by appropriate action either at law or in equity to
enforce performance by TPC of the applicable covenants of this
Agreement, to recover damages and expenses for breach thereof, and
costs and expenses incurred by TPC arising from such Event of Default
including, without limitation, reasonable attorneys' fees and
expenses.
The foregoing remedies are intended and agreed to be the exclusive remedies in
law or in equity available to Resort Operator for the breach of this Agreement
by TPC and Resort Operator shall have no other remedy against TPC; provided,
Resort Operator may bring successive actions for specific performance and
petition any court for other additional equitable relief in the event of
repeated breach of this Agreement by TPC.
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ARTICLE 8. MISCELLANEOUS PROVISIONS
8.1 Notices. All notices or other communications between HHP and
TPC required or permitted hereunder shall be in writing and personally
delivered or sent by certified United States mail, return receipt requested,
postage prepaid, to the following address (until a notice of change thereof
shall have been delivered as provided in this Section):
If to HHP:
HOWARD HUGHES PROPERTIES,
LIMITED PARTNERSHIP
3800 Howard Hughes Parkway
Las Vegas, Nevada 89109
Attention: General Counsel
If to TPC:
TPC AT SUMMERLIN, INC.
1700 Village Center Circle
Las Vegas, Nevada 89134
With a copy to:
PGA TOUR, INC.
112 TPC Boulevard
Ponte Vedra Beach, Florida 32082
Attention: Jim Triola
A notice shall be effective on the date of personal delivery if personally
delivered before 5:00 p.m., otherwise on the day following personal delivery,
or two (2) business days following the date the notice is postmarked, if
mailed.
8.2 Time of the Essence. Time is of the essence in this Agreement
and each and every term and provision hereof.
8.3 Governing Law. This Agreement shall be construed, interpreted
and governed by the laws of the State of Nevada.
8.4 Further Assurances: Survival. Each party will, whenever and
as often as it shall be requested to do so by the other party, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
any and all such further conveyances, assignments, approvals, consents and any
and all other documents and do any and all other acts as may be necessary to
carry out the intent and purpose of this Agreement.
8.5 Entire Agreement Amendments. This Agreement, together with the
other written agreements referred to herein, is intended by the parties to be
the final expression of their agreement with respect to the subject matter
hereof, and is intended as the complete and exclusive statement of the terms of
the agreement between the parties. As such, this Agreement supersedes any and
all prior understandings between the parties, whether oral or written. Any
amendments to this Agreement shall be in writing and shall be signed by both
parties hereto.
8.6 No Waiver. A waiver by either party hereto of a breach of any
of the covenants or agreements hereof to be performed by the other party shall
not be construed as a waiver of any succeeding breach of the same or other
covenants, agreements, restrictions or conditions hereof.
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8.7 Assignment. Neither TPC nor HHP shall assign any of its rights
or delegate any of its obligations hereunder without the prior written consent
of the other party hereto, provided, HHP shall have the right to assign its
interest hereunder without the consent of TPC to any entity under the control
of or under common control with HHP and provided further that HHP shall have
the right to assign all obligations hereunder to the Resort Operator. In the
event the Resort Operator shall assume all obligations of HHP hereunder, HHP
shall be relieved of any further obligation to TPC. Notwithstanding such
assignment and assumption, HHP shall retain the right to enforce the
obligations of TPC hereunder.
8.8 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
representatives, successors and permitted assigns.
8.9 Headings; Exhibits; Cross References. The headings and
captions used in this Agreement are for convenience and ease of reference only
and shall not be used to construe, interpret, expand or limit the terms of this
Agreement. All exhibits attached to this Agreement and the Recitals at the front
of this Agreement are incorporated herein by the references thereto contained
herein. All references in this Agreement to Sections and Exhibits shall be to
Sections and Exhibits of or to this Agreement, unless otherwise specified.
8.10 Severability. In the event that any phrase, clause, sentence,
paragraph, section, article or other portion of this Agreement shall become
illegal, null or void, or against public policy, for any reason, or shall be
held by any court of competent jurisdiction to be illegal, null or void, or
against public policy, the remaining portions of this Agreement shall not be
affected thereby and shall remain in force and effect to the full extent
permitted by law.
8.11 Performance of Acts on Business Days. Unless specifically
stated to the contrary, all references to days herein shall be deemed to refer
to calendar days. In the event that the final date for payment of any amount
or performance of any act hereunder falls on a Saturday, Sunday or holiday,
such payment may be made or act performed on the next succeeding business day.
8.12 No Third Party Beneficiaries. This Agreement is intended for
the exclusive benefit of HHP and TPC and their respective permitted assigns
and is not intended and shall not be construed as conferring any benefit on any
third party or the general public.
8.13 Survival. Termination shall not affect the rights or
obligations of either party which arise prior to the termination.
8.14 Arbitration. If at any time during the term of this Agreement
any dispute, difference, or disagreement shall arise upon or in respect of the
Agreement, and the meaning and construction hereof, every such dispute,
difference, and disagreement shall be referred to a single arbiter agreed upon
by the parties, or if no single arbiter can be agreed upon, an arbiter or
arbiters shall be selected in accordance with the rules of the American
Arbitration Association and such dispute, difference, or disagreement shall be
settled by arbitration in accordance with the then prevailing commercial rules
of the American Arbitration Association, and judgment upon the award rendered
by the arbiter may be entered in any court having jurisdiction thereof.
8.15 Attorney Fees. In the event an arbitration, suit or action is
brought by any party under this Agreement to enforce any of its terms, or in
any appeal therefrom, it is agreed that the prevailing party shall be entitled
to reasonable attorneys fees to be fixed by the arbitrator, trial court, and/or
appellate court.
8.16 Presumption. This Agreement or any section thereof shall not
be construed against any party due to the fact that said Agreement or any
section thereof was drafted by said party.
8.17 Computation of Time. In computing any period of time pursuant
to this Agreement, the day of the act, event or default from which the
designated period of time begins to run shall be included, unless it is a
Saturday, Sunday or a legal holiday, in which event the period shall begin to
run on the next day which is not a Saturday, Sunday or a legal holiday, in
which event the period shall run until the end of the next day thereafter which
is not a Saturday, Sunday or legal holiday.
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8.18 Titles and Captions. All article, section and paragraph title
or captions contained in this Agreement are for convenience only and shall not
be deemed part of the context nor affect the interpretation of this Agreement.
8.19 Pronouns and Plurals. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular or plural
as the identity of the Person or Persons may require.
8.20 Further Action. The parties hereto shall execute and deliver
all documents, provide all information and take or forbear from all such action
as may be necessary or appropriate to achieve the purposes of this Agreement.
8.21 Good Faith, Cooperation and Due Diligence. The parties hereto
covenant, warrant and represent to each other good faith, complete cooperation,
due diligence and honesty in fact in the performance of all obligations of the
parties pursuant to this Agreement. All promises and covenants are mutual and
dependent.
10
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8.22 Counterparts. This Agreement may be executed in several
counterparts and all so executed shall constitute one Agreement, binding on all
the parties hereto even though all the parties are not signatories to the
original or the same counterpart.
8.23 Term. The term of this Agreement shall commence upon full
execution hereof by all parties and will terminate on the ninety-ninth
anniversary thereof.
HHP: TPC:
HOWARD HUGHES PROPERTIES, LIMITED TOURNAMENT PLAYERS CLUB AT
PARTNERSHIP, a Delaware limited partnership SUMMERLIN, INC., a Nevada corporation
By: THE HOWARD HUGHES CORPORATION, a By: [SIG]
Delaware corporation, its sole general partner -----------------------------------
Title: President
By: [SIG] -------------------------------------
-------------------------------
Title: Sr. VP
----------------------------
SUMMERLIN CORPORATION:
SUMMERLIN CORPORATION, a Delaware
corporation
By: [SIG]
-------------------------------
Title: VP & Treasurer
----------------------------
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ATTACHMENT "A"
TO GOLF COURSE AGREEMENT
DESCRIPTION OF GOLF COURSE PROPERTY
LOT 2 OF BLOCK A, LOT 4 OF BLOCK B, AND LOT 7 OF BLOCK B AS SHOWN BY MAP
THEREOF ON FILE IN BOOK 71, PAGE 13 OF PLATS IN THE CLARK COUNTY RECORDER'S
OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN SECTION 25, TOWNSHIP 20 SOUTH, RANGE
59 EAST, AND WITHIN SECTIONS 29 AND 30, TOWNSHIP 20 SOUTH, RANGE 60 EAST,
M.D.M., CITY OF LAS VEGAS, CLARK COUNTY, NEVADA.
12
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ATTACHMENT "B"
TO GOLF COURSE AGREEMENT
DESCRIPTION OF RESORT PARCEL
ALL OF PARCEL 1 AS SHOWN BY MAP THEREOF ON FILE IN FILE 82, PAGE 64 OF PARCEL
MAPS IN THE CLARK COUNTY RECORDER'S OFFICE, CLARK COUNTY, NEVADA LYING WITHIN
THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 29, TOWNSHIP 20 SOUTH, RANGE 60 EAST,
M.D.M., CITY OF LAS VEGAS, CLARK COUNTY, NEVADA.
TOGETHER WITH
ALL OF PARCEL 2 AS SHOWN BY MAP THEREOF ON FILE IN FILE 82, PAGE 64 OF PARCEL
MAPS IN THE CLARK COUNTY RECORDER'S OFFICE, CLARK COUNTY, NEVADA LYING WITHIN
THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 29 AND THE SOUTHEAST QUARTER (SE 1/4)
OF SECTION 30, TOWNSHIP 20 SOUTH, RANGE 60 EAST, M.D.M., CITY OF LAS VEGAS,
CLARK COUNTY, NEVADA.
13
14
ATTACHMENT "C"
TO GOLF COURSE AGREEMENT
MEMORANDUM OF AGREEMENT
The real property described on Schedule "A" attached hereto (the "Golf
Course Property") and commonly known as the "TPC at the Canyons" golf course is
subject to the terms of that certain Golf Course Agreement dated as of the _____
day of __________, 1996 by and between Howard Hughes Properties, Limited
Partnership, a Delaware limited partnership ("HHP"), Summerlin Corporation, a
Delaware corporation and Tournament Players Club at Summerlin, Inc., a Nevada
corporation ("TPC"). The Golf Course Agreement touches and concerns the Golf
Course Property for the benefit of the owners of the real property described on
Schedule "B" attached hereto and their respective successors and assigns.
HOWARD HUGHES PROPERTIES, LIMITED
PARTNERSHIP, a Delaware limited partnership
By: THE HOWARD HUGHES CORPORATION, a
Delaware corporation, its sole general partner
By:
-------------------------------------------
Title:
----------------------------------------
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SCHEDULE "A"
DESCRIPTION OF GOLF COURSE PROPERTY
LOT 2 OF BLOCK A, LOT 4 OF BLOCK B, AND LOT 7 OF BLOCK B AS SHOWN BY MAP
THEREOF ON FILE IN BOOK 71, PAGE 13 OF PLATS IN THE CLARK COUNTY RECORDER'S
OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN SECTION 25, TOWNSHIP 20 SOUTH, RANGE
59 EAST, AND WITHIN SECTIONS 29 AND 30, TOWNSHIP 20 SOUTH, RANGE 60 EAST,
M.D.M., CITY OF LAS VEGAS, CLARK COUNTY, NEVADA.
15
16
SCHEDULE "B"
DESCRIPTION OF RESORT PARCEL
ALL OF PARCEL 1 AS SHOWN BY MAP THEREOF ON FILE IN FILE 82, PAGE 64 OF PARCEL
MAPS IN THE CLARK COUNTY RECORDER'S OFFICE, CLARK COUNTY, NEVADA LYING WITHIN
THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 29, TOWNSHIP 20 SOUTH, RANGE 60 EAST,
M.D.M., CITY OF LAS VEGAS, CLARK COUNTY, NEVADA.
TOGETHER WITH
ALL OF PARCEL 2 AS SHOWN BY MAP THEREOF ON FILE IN FILE 82, PAGE 64 OF PARCEL
MAPS IN THE CLARK COUNTY RECORDER'S OFFICE, CLARK COUNTY, NEVADA LYING WITHIN
THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 29 AND THE SOUTHEAST QUARTER (SE 1/4)
OF SECTION 30, TOWNSHIP 20 SOUTH, RANGE 60 EAST, M.D.M., CITY OF LAS VEGAS,
CLARK COUNTY, NEVADA.
16
17
ASSIGNMENT OF RIGHTS UNDER GOLF COURSE AGREEMENT
This Assignment of Rights under Golf Course Agreement (this
"Assignment") is made as of August 15, 1996.
R E C I T A L S
A. Reference is made to that certain Golf Course Agreement (the
"Agreement") between Howard Hughes Properties, Limited Partnership, a Delaware
limited partnership ("HHP") Summerlin Corporation, a Delaware corporation and
Tournament Players Club at Summerlin, Inc., a Nevada corporation ("TPC") dated
as of July 10, 1996.
B. HHP and Summerlin Corporation are hereinafter referred to
collectively as "Assignors."
C. Assignors desire to assign all of their right, title and
interest in and to the Agreement to The Resort at Summerlin, Limited
Partnership, a Nevada, limited partnership ("Assignee") which is the "Resort
Operator" as such term is used in the Golf Course Agreement.
D. Assignee desires to accept the foregoing assignment and to
assume, for the benefit of TPC, all of the duties, covenants and obligations of
Assignors arising from and after the date of this Assignment.
E. TPC has agreed to consent to said assignment, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the foregoing facts, and in
consideration of the covenants hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignors, Assignee and TPC agree as follows:
AGREEMENT
1 Assignment. Assignors hereby assign, transfer and set over to
Assignee all of Assignors' right, title and interest in and to the Agreement.
2. Acceptance. Assignee hereby accepts the foregoing assignment,
and hereby specifically agrees, represents and warrants, for the use and benefit
of TPC, that it has assumed all of the duties, covenants and obligations of
Assignors under the Agreement arising from and after the date of this
Assignment.
3. TPC's Consent. TPC does hereby consent to the foregoing
assignment and acceptance, and does hereby release Assignors from their
respective duties, covenants and obligations under the Agreement.
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18
4. HHP's Continuing Rights. Notwithstanding such assignment and
assumption, HHP hereby retains the right to enforce the obligations of TPC
under the Agreement.
5. Counterparts. This Assignment may be executed in several
counterparts and all so executed shall constitute one Assignment, binding on
all the parties hereto even though all the parties are not signatories to the
original or the some counterpart.
IN WITNESS WHEREOF, the undersigned have affixed their signatures
hereto as of the 15th day of August, 1996.
ASSIGNEE: ASSIGNORS:
- --------- ----------
THE RESORT AT SUMMERLIN, LIMITED HOWARD HUGHES PROPERTIES,
PARTNERSHIP, a Nevada limited LIMITED PARTNERSHIP HUGHES
partnership PROPERTIES, LIMITED PARTNERSHIP, a
Delaware limited partnership
By its general partner: The Resort at
Summerlin, Inc., a Nevada corporation By its general partner: THE HOWARD
HUGHES CORPORATION, a Delaware
corporation
By: [SIG]
-----------------------------------
Title: Senior Vice President By: [SIG]
-------------------------------- ------------------------------
Title: Executive Vice President
---------------------------
TPC:
- ----
TOURNAMENT PLAYERS CLUB AT SUMMERLIN CORPORATION, a Delaware
SUMMERLIN INC., a Nevada corporation corporation
By: [SIG] By: [SIG]
----------------------------------- ------------------------------
Title: President Title: Senior Vice President
-------------------------------- ---------------------------
ESCROW HOLDER hereby acknowledges receipt of this Assignment of Rights
Under Agreement for the Purchase and Sale of Real Property and agrees to act in
accordance with any amendments contained herein.
NEVADA TITLE COMPANY, a Nevada
corporation
By: [SIG]
-----------------------------
Title: Escrow Officer
--------------------------
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