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EXHIBIT 10.11
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OPRYLAND HOTEL - FLORIDA GROUND LEASE
DATED AS OF MARCH 3, 1999
BY AND BETWEEN
XENTURY CITY DEVELOPMENT COMPANY, L.C., AS LANDLORD
AND
OPRYLAND HOTEL - FLORIDA LIMITED PARTNERSHIP, AS TENANT
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INDEX
1. Certain Defined Terms............................................10
2. Construction of Project..........................................11
3. Landlord's Interest not Subject to Certain Liens.................23
4. Use..............................................................24
5. Landlord's Delivery of Utility Improvements......................30
6. Rent.............................................................30
7. Taxes and Assessments............................................41
8. Insurance........................................................44
9. Casualty.........................................................48
10. Alterations......................................................52
11. Repairs; Maintenance.............................................53
12. Assignment and Transfer; Leasing.................................56
13. Landlord's Right to Inspect......................................62
14. Operating Standards..............................................63
15. Default..........................................................65
16. Permitted Mortgages..............................................70
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17. End of Term......................................................76
18. Indemnity........................................................78
19. Easements; Use of Utilities......................................80
20. Condemnation.....................................................80
21. Encumbrances by Subtenants.......................................82
22. No Abatement of Rent.............................................82
23. No Representations...............................................82
24. Use of Names.....................................................83
25. No Waiver........................................................83
26. Estoppel Certificate.............................................84
27. Title to the Buildings and Furnishings...........................84
28. Force Majeure....................................................85
29. Notices..........................................................85
30. Time.............................................................86
31. Interest.........................................................87
32. Successors and Assigns...........................................87
33. Recordation of Lease.............................................87
34. Warranty of Title and Covenant of Quiet Enjoyment................87
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35. Costs and Attorneys'Fees.........................................87
36. Entire Agreement.................................................88
37. Applicable Law...................................................88
38. Waiver of Jury Trial.............................................88
39. Landlord May Cure the Tenant's Defaults..........................88
40. Waiver of Right of Redemption....................................89
41. Captions.........................................................89
42. Brokerage........................................................89
43. Consent or Approval of Landlord..................................89
44. Intentionally Omitte.............................................90
45. Limitation of Landlord's Liability...............................90
46. Fee Mortgage.....................................................91
47. No Merger........................................................91
48. Master Ground Lease..............................................92
49. Arbitratio.......................................................92
50. Exhibits.........................................................93
51. Counterparts.....................................................93
52. Construction of Agreement........................................93
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TABLE OF DEFINITIONS
Annual Escalator............................................................. 3
Annual Escalator Percentage.................................................. 3
Annual Gross Revenues Statements............................................. 27
Approved Sublease............................................................ 49
Base Rent.................................................................... 24
Buildings.................................................................... 2
CDD Project Agreement........................................................ 3
Convention Hotel............................................................. 2
Demised Premises............................................................. 1
Event of Default............................................................. 51
Extension Term............................................................... 1
Fee Mortgage................................................................. 3
First Permitted Leasehold Mortgagee.......................................... 55
Furnishings.................................................................. 51
Gross Revenues............................................................... 22
Hotel Management Agreement................................................... 3
Hotel Year................................................................... 23
Initial Term................................................................. 1
Land......................................................................... 4
Land Development Agreement................................................... 2
Master Ground Lease.......................................................... 74
Novation Ground Lease........................................................ 57
Opening Date................................................................. 23
Operating Standards.......................................................... 50
Percentage Rent.............................................................. 25
Percentage Rent Calculation Date............................................. 25
Percentage Rent Payment Date................................................. 25
Permitted Leasehold Mortgagee................................................ 55
Permitted Mortgage........................................................... 55
Pervious Only Area........................................................... 11
Plans........................................................................ 5
Quarterly Gross Revenues Statement........................................... 26
Rent......................................................................... 23
Shared Use Retention Pond Easement Area...................................... 2
Stabilization Date........................................................... 24
Substantial Commencement..................................................... 5
Taxes........................................................................ 31
Term-end Payment............................................................. 41
Work......................................................................... 4
Xentury City DRI Development Order........................................... 33
Xentury City POA............................................................. 33
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TABLE OF EXHIBITS
EXHIBIT "A" - Overall Xentury City Development Project
EXHIBIT "B" - Opryland Hotel - Florida Legal Description
EXHIBIT "B-1" - International Drive Easement Description
EXHIBIT "B-2" - Shared Use Retention Pond Easement Area Legal
Description
EXHIBIT "B-3" - Shared Drainage Line Easement Area Legal Description
EXHIBIT "B-4" - Southerly Parking Area Legal Description
EXHIBIT "B-5" - Pervious Only Area Legal Description
EXHIBIT "C" - Permitted Exceptions
EXHIBIT "D" - Approved Gaylord Insurance Coverage
EXHIBIT "E" - Approved Form of Assignment and Assumption of Lease
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OPRYLAND HOTEL - FLORIDA GROUND LEASE
THIS OPRYLAND HOTEL - FLORIDA GROUND LEASE (herein the "Lease") is made and
entered into as of the 1st day of March, 1999, between XENTURY CITY DEVELOPMENT
COMPANY, L.C., a Florida limited liability company (hereinafter referred to as
"Landlord"), and OPRYLAND HOTEL - FLORIDA LIMITED PARTNERSHIP, a Florida limited
partnership (hereinafter referred to as the "Tenant").
W I T N E S S E S T H :
Landlord and certain of the Landlord's Affiliates (as hereinafter defined)
are the owners and developers of a mixed-use development which consists of
approximately two hundred and twenty-five (225) acres in Osceola County, Florida
(the "Xentury City Development Project"), as depicted in Exhibit A annexed
hereto, and Landlord is the ground lessee of that certain parcel of land within
the Xentury City Development Project, containing sixty-five and three-tenths
(65.3) acres more or less, and more particularly bounded and described in
Exhibit B annexed hereto (the "Land").
LANDLORD HEREBY DEMISES AND LEASES THE LAND TO TENANT, and Tenant hereby
leases and takes the Land from Landlord, upon and subject to the terms,
covenants and conditions set forth herein;
Together with and subject to those easements, rights of way and other
reservations set forth in Exhibits B-1 and B-2 annexed hereto, and subject,
however, to those matters set forth in Exhibit C annexed hereto (all together
referred to herein as the "Demised Premises").
TO HAVE AND TO HOLD the Demised Premises unto the Tenant, on the terms and
subject to the conditions of this Lease, for a term commencing on the date
hereof and, unless sooner terminated as herein provided, expiring on January 31,
2074 (the "Initial Term"). Absent the existence of an uncured Event of Default
hereunder, the Initial Term shall be extended upon written election of the
Tenant by written notice given to Landlord (herein an "Extension Notification")
on or before a date that is two (2) years before the date of expiration of the
Initial Term (except that if any Permitted Leasehold Mortgage, as hereinafter
defined, in effect as of the beginning of such final 2-year period of the
Initial Term has a term extending beyond the Initial Term, such Extension
Notification will be deemed to be automatically given and effective unless
canceled in writing within the next to last year of the Initial Term with the
written joinder and consent of all such Permitted Leasehold Mortgagees, as
hereinafter defined), at the Rent (as hereinafter defined) reserved herein and
upon all of the other terms, conditions, covenants and provisions set forth
herein, for an additional successive period (the "Extension Term") ending on the
date which is the earlier to occur of (i) ninety-nine (99) years following the
Completion Date, as defined below, or (ii) January 31, 2101 (but subject to
sooner termination as herein provided). Promptly following the effectiveness of
such Extension Notification the parties shall execute and deliver for recording
a formal Amendment to Memorandum of Lease reflecting the extension of the Term.
Any reference in this Lease to the "Term" of this Lease shall be deemed to refer
to the Initial Term and, to the extent
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appropriate, to the Extension Term, unless sooner terminated in accordance with
the provisions of this Lease.
RESERVING UNTO THE LANDLORD, HOWEVER, a non-exclusive easement for shared
drainage facilities under and within the Shared Drainage Line Easement Area
described and depicted in Exhibit B-3 annexed hereto, a non-exclusive easement
across the driveways and access ways within the Demised Premises for access by
Landlord and its successors and assigns (including without limitation the
Xentury City Property Owners' Association, Inc.) to the Shared Use Retention
Pond Easement Area described in said Exhibit B-2 hereto, and an exclusive
easement for open green space and other compatible uses over and upon the
Pervious Only Area described and depicted in Exhibit B-5 annexed hereto, all in
accordance with the terms and conditions set forth in Sections 2.(h) and
elsewhere herein.
The Tenant has entered into or will enter into a Hotel Development
Agreement (the "Hotel Development Agreement") with Opryland Hospitality, Inc., a
Tennessee corporation ("OHI" or the "Developer"), with respect to the design and
construction of certain improvements to be built upon the Demised Premises
consisting of a first class destination hotel and convention center including
initially not less than One Thousand Four Hundred (1400) hotel guest rooms and
approximately Three Hundred Fifty Thousand (350,000) square feet of
convention/meeting/exhibit space, and related restaurant, retail shops and other
amenities and related improvements, as described in the Plans and to be located
upon the Demised Premises (such improvements being hereinafter referred to as
the "Convention Hotel" and, together with any and all permitted additions
thereto and replacements thereof and all other improvements hereafter located on
the Land, the "Buildings"). All provisions of the Hotel Development Agreement
which are stated therein to survive the expiration or termination of the Hotel
Development Agreement, or which contain obligations which are expressly assumed
in this Lease by a party hereto, or which are referred to in this Lease as
having continuing operative effect after the signing of this Lease are, except
if and to the extent otherwise provided in this Lease, hereby incorporated
herein by reference if and to the extent the same relate to the Demised Premises
and/or the Buildings so that the right and obligations of Tenant and Developer
under such provisions of the Hotel Development Agreement shall be the rights and
obligations of Tenant under this Lease.
The Tenant and Landlord have entered into a Land Development Agreement
dated of even date herewith (the "Land Development Agreement"), with respect to
the Landlord's completion of construction of all off-site improvements and other
work as specified therein to be completed by Landlord in connection with the
construction by the Tenant of the Convention Hotel upon the Demised Premises
(such obligations of the Landlord under the Land Development Agreement being
hereinafter referred to as the "Landlord Responsibilities"). All provisions of
the Land Development Agreement which are stated therein to survive the
expiration or termination of the Land Development Agreement, or which contain
obligations which are expressly assumed in this Lease by a party hereto, or
which are referred to in this Lease as having continuing operative effect after
the signing of this Lease are, except if and to the extent otherwise provided in
this Lease, hereby incorporated in this Lease by reference if and to the extent
the same relate to the Demised Premises and/or the Buildings so that the right
and obligations of Tenant under such provisions of the Land
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Development Agreement shall be the rights and obligations of Tenant under this
Lease, and the rights and obligations of Landlord under such provisions of the
Land Development Agreement shall be the rights and obligations of Landlord under
this Lease.
The Tenant has entered into or will enter into a CDD Improvements Purchase
and Sale Agreement with the Xentury City Community Development District (the
"Xentury City CDD"), with respect to the design, construction and purchase and
sale of certain Xentury City CDD improvements to be built upon the Demised
Premises in conjunction with the Convention Hotel, and the sale thereof to the
Xentury City CDD (the "CDD Project Agreement").
AND THE LANDLORD AND THE TENANT desire to set forth the rights and
obligations of the parties hereto with respect to the use and occupancy of the
Demised Premises.
NOW, THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, and the leasing of the Demised Premises hereunder, the Landlord
and the Tenant, for themselves and their respective permitted successors and
assigns, do hereby covenant and agree as follows:
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1. Certain Defined Terms. As used herein, the following terms shall have
the following meanings:
(a) "Annual Escalator" - The annual increase of the Base Rent under
Section 6(b)(ii)(3) of Article 6 below, as applicable following the
Stabilization Date.
(b) "Annual Escalator Percentage" - Three Percent (3%).
(c) "Benchmark Hotel" - The Nashville Opryland Hotel, or any replacement
Benchmark Hotel designated and approved in accordance with the provisions of
Section 14(a) hereof.
(d) "Completion Date" - The date on which the Convention Hotel has been
substantially completed (as established by certification of substantial
completion to Landlord by the Project Architect on standard AIA forms) and a
Certificate or Certificates of Occupancy have been issued permitting legal
occupancy of all or substantially all of the Convention Hotel.
(e) "Demised Premises" - The Land together with the easements, rights
of way and other reservations set forth in Exhibits B-1 and B-2 annexed hereto.
(f) "Fee Mortgage" - Any mortgage or mortgages hereafter placed by
Landlord or its successors on its interests in the Land under the Master Ground
Lease, or by the Ground Lessor or its successors on the fee of all or any part
of the Demised Premises.
(g) "Hotel Management Agreement" - Any agreement with an operator for
the management and operation of the Convention Hotel.
(h) "Insurance Requirements" - All requirements of the insurance
underwriting board or any other insurance inspection bureau having or claiming
jurisdiction, or any other body exercising similar functions, and of all
insurance companies from time to time selected by the Tenant to write policies
covering the Buildings or any part thereof, as well as with the insurance
provisions of Article 8 hereof applicable to the Buildings and/or the Demised
Premises and use and/or occupancy thereof.
(i) "Land" - That certain parcel of land within the Xentury City
Development Project, Osceloa County, Florida, and containing sixty-five and
three-tenths (65.3) acres more or less, as more particularly bounded and
described in Exhibit B annexed hereto.
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(j) "Legal Requirements" - All laws, ordinances, requirements, orders,
directions, rules and regulations, whether currently existing or promulgated
hereafter, of all federal, state, county and municipal governments and of all
other governmental authorities having or claiming jurisdiction over the Demised
Premises or the Buildings or any part of either, and of all their respective
departments, bureaus and officers.
(k) "Memorandum of Lease" - The Memorandum of this Lease to be executed
by the parties and delivered for recording pursuant to Section 33 hereof.
2. Construction of Project. The following terms and conditions shall apply
to the completion of all Landlord Responsibilities under the Land Development
Agreement and to construction of the Convention Hotel under the Hotel
Development Agreement:
(a) Landlord Responsibilities. Promptly following the execution of this
Lease, and (subject to extensions of said dates for reasons stated in Article
28) in accordance with the commencement, completion and other timing
requirements set forth under the Land Development Agreement, Landlord shall
commence, and shall thereafter diligently complete, the construction and
development of the Landlord Responsibilities under and as described in the Land
Development Agreement. Landlord shall complete the Landlord Responsibilities,
subject only to Excusable Delays, within the time periods provided under the
Land Development Agreement. The Landlord represents and warrants that the
Landlord Responsibilities shall be completed in accordance with the Land
Development Agreement and in a good workmanlike manner.
(b) Tenant Responsibilities. The provisions of this Section 2(b) shall
apply to the construction by the Tenant, or any other person or entity, of the
Convention Hotel in the first instance (other than work for which the Landlord
is responsible pursuant to the terms of this Lease or the Land Development
Agreement), to the construction by the Tenant or any other person or entity of
any further Buildings on the Demised Premises and, unless expressly stated to
the contrary, to all repairs, alterations, reconstruction or restoration
performed pursuant to Sections 8, 9, 10 and 11 hereof (the foregoing
construction being hereinafter referred to as "Work").
(i) Promptly following execution of this Lease, the Tenant shall
undertake completion of a final detailed conceptual Site Plan (the "Site Plan")
and detailed preliminary conceptual plans ("Design Concept Plan") and a detailed
project schedule ("Project Schedule") for construction of the entire Convention
Hotel and all related improvements to be constructed upon the Demised Premises
and to be operated as the "Opryland Convention Hotel") (sometimes referred to
herein as the "Project"). The Site Plan, Design Concept Plans and Project
Schedule, when completed, shall be submitted to the Landlord for approval, which
approval shall be limited to confirmation by Landlord that the Site Plan and
Design Concept Plan, and the Project Schedule for construction thereunder, are
consistent with the preliminary concept and site plans already approved by
Landlord as referenced in the Land Development Agreement (the "Opryland
Conceptual Site Plan"), the existing Xentury City Development Project DRI
approvals and the Tenant's obligation to develop and construct the Convention
Hotel as a first class destination hotel and convention
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center of comparable quality and standards with the Benchmark Hotel, in
accordance with the provisions of this Lease, and such approval shall not be
unreasonably withheld or delayed. The final Plans for the entire Project (the
"Plans") shall be provided to Landlord either (x) prior to Substantial
Commencement of construction or (y) on a phased basis commensurate with timely
completion of all Plan elements for each construction component of the Project
under a design-build program approved by Tenant's Architect, and shall be
consistent with the Site Plan and Design Concept Plan approved by the Landlord
and shall comply with all applicable laws and regulations. The Project Schedule
shall be updated as necessary with the approval of the Project Architect, which
updates shall be provided by Tenant to Landlord at least quarterly during the
course of construction of the Project. Notwithstanding other applicable
provisions of this Lease, Landlord shall use diligent efforts to respond to all
requests for approval as quickly as is practicable under the circumstances, and
where an accelerated review time in a specific instance has been identified in
good faith by Tenant as being of material advantage to timely construction of
the Convention Hotel the Landlord shall respond within ten (10) business days or
sooner if possible, provided that such response may if necessary identify
specific issues or questions that reasonably require further information from
Tenant or further review time for Landlord.
(ii) Promptly following the execution of this Lease, and subject to
the Landlord completing the Landlord Responsibilities in a timely manner
pursuant to the Land Development Agreement, the Tenant shall commence and/or
cause the Developer to commence, and shall thereafter diligently complete, the
design, development and construction of the Convention Hotel and all related
improvements described in the Plans. Promptly upon Substantial Commencement of
construction of the Convention Hotel, the Tenant shall give to Landlord written
notice of the date of Substantial Commencement of construction. For purposes of
this Lease the term "Substantial Commencement" of construction of the Convention
Hotel shall mean the completion of all building footings and slabs, including
related plumbing, electrical and mechanical rough work, with building permits in
place, for the primary guest room, entrance lobby and feature atrium and
convention space Buildings within the Convention Hotel, under circumstances
where the Tenant has a mutually-binding construction contract or contracts for
relevant portions of the Convention Hotel consistent with the Project Schedule
and has all necessary governmental approvals (including building permits for the
project, payment or securing agreements for payment of required impact fees, and
reservation of all necessary utility capacities, all as required consistent with
the stage of construction and the Project Schedule).
(iii) The Tenant's Work shall be completed in accordance with the
Plans and in accordance with the Hotel Development Agreement in a good and
workmanlike manner. Nothing herein shall prohibit or limit Tenant's ability to
approve change orders which are approved by the Project Architect and which are
consistent with the Opryland Conceptual Site Plan and the overall design of the
Project as a 1400-room destination convention hotel containing approximately
350,000 square feet of convention/meeting and exhibit space and related retail
and restaurant areas. The Tenant shall, if requested by Landlord, meet with a
representative of Landlord at mutually convenient times on a quarterly basis
during construction to update Landlord on the progress of the Work. For purposes
of the quarterly updates during the initial construction of the Convention
Hotel, the Landlord's
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representative shall be Steve Ivins and the Tenant's representative shall be
Pete Cesari and all such quarterly meetings shall be coordinated through such
representatives (who if no longer able to attend shall be replaced only by
mutually-acceptable substitute representatives). At the quarterly reviews Tenant
shall make available for review by Landlord's representative (and accompanying
expert consultant, if reasonably necessary to evaluate any technical information
being provided) current plans, notes, progress and construction reports of and
relating to the status of construction completed to date, including
certification to Landlord by the Architect regarding the completion of work and
compliance with plans on appropriate AIA forms, and shall conduct an in-depth
tour and review of the construction site and work in progress (but Landlord
shall not thereby assume any responsibility for the proper performance of the
Work in accordance with the terms of this Lease, nor any liability arising from
the improper performance thereof). In addition, the Tenant shall also make
available (in connection with such quarterly construction progress meetings)
up-dated as-built plans (by addendum or as otherwise revised and updated) as and
when the same are produced for Tenant, at each of the following four stages of
construction for the Project as construction progresses: (w) completion of
building footings and slabs including related plumbing, electrical and
mechanical rough work for the primary guest room, entrance lobby and feature
atrium and convention space Buildings within the Convention Hotel; (x)
completion of shell and steel erection for the guest room, atrium and convention
and restaurant buildings; (y) enclosure under roof and installation of exterior
windows and doors; and (z) Substantial Completion. In the event that at any time
the Landlord has a reasonable basis for concern that any of the work is
deviating or has deviated materially from the requirements of the approved plans
and specifications, the Landlord shall have the further right to inspect in
detail such work and to notify the Tenant and the Tenant shall promptly correct
any deviation or provide revised plans showing appropriate corrective changes
together with approvals thereof from the Architect.
(iv) The Tenant and Landlord agree to coordinate the Tenant's Work
with any construction activities of the Landlord to assure that the performance
of the Tenant's Work does not unreasonably disrupt or interfere with the other
construction and business activities or traffic in the Xentury City Development
Project. The Tenant and Landlord shall cooperate in coordinating their
respective development and construction activities in accordance with the Land
Development Agreement.
(v) The Tenant represents and warrants to Landlord that all of the
Tenant's Work will be performed in a good and workmanlike manner and in
accordance with the provisions of the Hotel Development Agreement and this
Lease.
(vi) Before the commencement of each stage and component of the
Tenant's Work: (1) the Plans relating to such stage or component shall be filed
with, and approved by, all government departments or authorities having or
claiming jurisdiction, if required by such departments or authorities, and with
any public utility companies having an interest therein, if required by such
utility companies; (2) all necessary governmental approvals and permits shall
have been issued, and (3) the Tenant shall have delivered to Landlord
certificates showing that all applicable insurance required under Section 8
hereof has been secured.
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(vii) If and to the extent applicable, upon substantial completion
of each significant portion or phase of the Tenant's Work in accordance with the
Plans, the Tenant shall deliver to Landlord: (1) copies of a Certificate or
Certificates of Occupancy for those structures or phases completed for which a
Certificate of Occupancy is required (or available when properly completed)
together with copies of any other certificates required for the lawful use and
occupancy of such structures or phases for the uses permitted herein and of all
facilities constructed and to be operated pursuant hereto, including if
applicable (but not limited to) (x) Fire Underwriters certificates; and (z)
certificates from departments having jurisdiction over the supply of water, gas,
electricity and other utilities, sanitation and environmental protection (but,
as to construction of the Buildings in the first instance, excluding
certificates, if any, which may be related solely to the Developer's
Requirements under the Land Development Agreement); (2) a complete copy of the
"as built" plans and specifications with respect to such Work for the initial
Convention Hotel construction and any major improvements, reconstruction or
renovations (instead of delivering same to Landlord the same may be maintained
and updated as necessary by the Tenant at the Convention Hotel, and made
available to Landlord upon request), confirmed in writing to Landlord by the
Project Architect as being complete as built plans in all material respects or
otherwise approved as complete as built plans by Landlord; (3) a final survey
showing the location and configuration of the Buildings on the Land (except that
with respect to any Tenant's Work performed subsequent to the initial
construction of the Convention Hotel, a survey shall only be required if and to
the extent that the Buildings are relocated and/or reconfigured); and (4) a
certificate from the Architect verifying that the Tenant's Work has been
substantially completed in accordance with the Plans. The issuance of the
foregoing shall not be deemed to relieve the Tenant of its obligation under the
terms of this Lease to complete the Tenant's Work in accordance with the Plans.
Reasonably soon following Substantial Completion and the Opening Date the
Tenant's and Landlord's representatives shall coordinate the Landlord's final
inspection of the completed Convention Hotel by Landlord and its consultants and
promptly thereafter the Landlord shall deliver a formal written notification
identifying, if applicable, with reasonable specificity, any aspect of material
non-compliance with the approved Plans or any term of this Lease identified by
Landlord, and if none exist (or at such time as any identified deficiencies are
cured) confirming acceptance by Landlord of the completed Convention Hotel (but
Landlord shall not thereby assume any responsibility for the proper performance
of the Work in accordance with the terms of this Lease, nor any liability
arising from the improper performance thereof).
(viii) In performing any of the Tenant's Work, the Tenant shall
comply (subject to the Tenant's right to contest and defer compliance during
such contest) with all Legal and/or Insurance Requirements. There shall be no
unauthorized encroachment on any street or on any adjoining premises by the
Buildings. Landlord shall sign any governmental applications necessary for the
Tenant's Work if required so to do by law, order, rule, or regulation, and the
Tenant shall reimburse Landlord for reasonable costs incurred by Landlord in
connection therewith.
(ix) Except to the extent specifically provided to the contrary
herein, or in the Land Development Agreement, all of the Tenant's Work shall be
performed at the Tenant's cost and expense and free of any expense to Landlord,
and the Tenant shall, during
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construction and upon completion of the Tenant's Work, timely pay, when due, all
bills for labor or materials supplied in connection with such Tenant's Work.
(c) The Tenant shall use diligent efforts, subject only to Excusable
Delays or other unavoidable delays, to cause the Tenant's Work to be completed
consistent with the Project Schedule, and in any event shall substantially
complete the initial construction of the Convention Hotel on or before July 1,
2004. Upon substantial completion of the Tenant's Work, the Tenant shall apply
for a Certificate or Certificates of Occupancy for the Buildings, copies of
which shall be provided to Landlord. Promptly following the occurrence of the
Completion Date the parties shall execute and deliver for recording a formal
Amendment to Memorandum of Lease reflecting the Completion Date. Any Work which
does not materially conform to the provisions of this Lease shall, if so
required by Landlord or by law, be removed or reconstructed by the Tenant at the
Tenant's cost. Notwithstanding the occurrence of the Completion Date, the Tenant
shall remain responsible to fully complete construction of the Buildings and
other Convention Hotel Improvements.
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(d) Notwithstanding anything to the contrary contained in this
Lease, or in any of the other Development Documents, in the event that the
Tenant, after using its diligent best efforts to obtain all necessary financing
upon reasonable market terms and to obtain all necessary development and
construction permits and to enter into all necessary construction contracts upon
reasonable market terms (and to enforce the same), is unable to substantially
complete construction of the Convention Hotel so that the Completion Date occurs
by no later than July 1, 2004, and provided that the Tenant (i) is able, and
posts reasonable security for all estimated costs, to remove any improvements
and restore the Land if so requested by Landlord, (ii) provides the written
consent and joinder of each Permitted Leasehold Mortgagee to such termination
and (iii) is able, upon termination of this Lease as provided below, to deliver
full possession of the Demised Premises to Landlord free and clear of any and
all lien, encumbrance, claim or interest whatsoever except as has been approved
by Landlord as surviving the termination hereof under Section 17 below; then the
Tenant may, at its option, by written notice to the Landlord on or before July
31, 2004 (a "Termination Notice"), terminate this Lease, in which event: (i) at
the Landlord's option, within ninety (90) days of the Termination Notice (which
90-day period shall be extended by up to an additional 180 if necessary to
complete such removal provided that the Tenant has promptly commenced and is
diligently and continuously prosecuting such removal), the Tenant, at the
Tenant's expense, shall remove any improvements constructed by the Tenant on the
Land and restore the Land to the condition existing as of the date of this Lease
(except for improvements made by Landlord or any other improvements completed by
the Tenant which Landlord chooses to retain); (ii) within ten (10) business days
of the date of the Termination Notice, the Tenant shall execute and deliver to
Landlord a formal Acknowledgment of Termination in recordable form and shall
redeliver possession of the Demised Premises in strict accordance with the terms
and requirements set forth in Section 17 hereof, upon which all interests of the
Tenant and any and all parties claiming by, through or under Tenant in the Land
and Demised Premises shall terminate; (iii) within ten (10) business days of the
date of the Termination Notice, pay to the Landlord all Rent and other amounts
due hereunder through July 1, 2004; and (iv) within ten (10) business days of
the date of the Termination Notice, pay to the Landlord a lease termination fee
of Five Million Eight Hundred Ninety-Six Thousand and No/100 Dollars
($5,896,000.00) plus an additional Ninety Thousand Six Hundred Twenty-Five and
50/100ths Dollars ($90,625.50) per month (prorated for any partial month) for
each month from March 1, 1999 to the date of termination, or to the Base Rental
Increase Date as defined hereinbelow, whichever is earlier. Following
termination of this Lease and satisfaction of the obligations set forth in the
foregoing sub-Sections (d)(i), (ii), (iii) and (iv), the Tenant shall be
released from any further obligations to the Landlord under this Lease.
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(e) In the event that Substantial Commencement of construction of
the Convention Hotel does not occur by December 31, 1999, then the Landlord
shall have a reciprocal right to terminate this Lease by giving formal written
notice at any time thereafter but prior to such Substantial Commencement, after
which the Tenant shall have ninety (90) days [provided however that such 90-day
period shall be extended by one (1) day for each day prior to March 1, 2000 that
any such notice shall be given so long as the Tenant shall have commenced and is
undertaking in good faith significant construction in addition to site grading
and filling activities] to substantially commence construction absent which the
Landlord may, at its option, give a final Termination Notice in accordance with
the foregoing provisions in which event: (i) this Lease and all interests of the
Tenant and any and all parties claiming by, through or under Tenant in the Land
and Demised Premises shall terminate effective as of the date of the Termination
Notice, the Tenant shall execute and deliver to Landlord a formal Acknowledgment
of Termination in recordable form and the Tenant shall immediately redeliver
possession of the Demised Premises to Landlord in strict accordance with the
terms and requirements set forth in Section 17 hereof; (ii) at the Landlord's
option, within ninety (90) days of the Termination Notice (which 90-day period
shall be extended by up to an additional 180 if necessary to complete such
removal provided that the Tenant has promptly commenced and is diligently and
continuously prosecuting such removal), the Tenant, at the Tenant's expense,
shall remove any improvements constructed by the Tenant on the Land and restore
the Land to the condition existing as of the date of this Lease (except for
improvements made by Landlord or any other improvements completed by the Tenant
which Landlord chooses to retain); and (iii) within ten (10) business days of
the date of the Termination Notice, pay to the Landlord Rent and other amounts
due to the Landlord hereunder through the date of termination and full payment
of such sums. Following termination of this Lease and satisfaction of the
obligations set forth in the foregoing sub-Sections (e)(i), (ii), and (iii), the
Tenant shall be released from any further obligations to the Landlord under this
Lease.
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(f) For a non-competition period ending on the earlier of: (i) the
later of July 1, 2006, or two (2) years following the effective date of any such
Termination under the foregoing Sub-sections 2(d) or 2(e), or (ii) any earlier
time following the date of Substantial Commencement when the Tenant has
effectively and irrevocably waived its termination right under this Section 2 by
formal written notice to Landlord, neither the Tenant or OHI or any affiliate
thereof shall own or participate in any way with the development or operation
of, and the Opryland name shall not be used in connection with, any convention
or other hotel in Osceola County or elsewhere within a twenty-five (25) mile
radius of the Xentury City Development Project (this restriction shall not apply
in any event to the potential golf resort hotel project, not involving
significant convention or meeting space areas, currently being considered by OHI
and/or its Affiliate Gaylord Entertainment Company, a Delaware corporation
("GEC") in or adjacent to the Lake Nona project in Orange County and located
southeast of Orlando International Airport, or to any complementary or otherwise
non-competing arrangement (x) taking effect only after Substantial Commencement
and which will not continue during the non-competition period established
hereunder in the event of any termination of this Lease, (y) not involving
during the term of this non-competition period ownership or use of the Opryland
Hotel name by GEC or any affiliate of or for a destination convention hotel and
(z) which is expressly approved by GEC's Board of Directors as a co-existent and
not an alternative project to the Convention Hotel). The Tenant hereby
stipulates and agrees that the foregoing non-competition agreement shall be
enforceable by injunction without the requirement of a bond and that, because
Landlord's actual damages would be difficult if not impossible to estimate, in
the event of any breach of this non-competition agreement by Tenant Landlord
shall be entitled to recover liquidated damages from Tenant in an amount equal
to Tenant's net cash proceeds before taxes from any such activity undertaken by
Tenant in violation of this Paragraph 2.(f).
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(g) Nothing in this Article or elsewhere in this Lease shall be
deemed to authorize the Tenant to construct additional Improvements not set
forth in the Plans, except that the parties acknowledge that the Tenant may
erect additional guest rooms and related improvements, not to exceed a maximum
of Four Hundred (400) additional guest rooms for a total of up to One Thousand
Eight Hundred (1800) guest rooms and related meeting/exhibit and convention
space as contemplated by this Lease, subject only to (i) the Tenant obtaining
all the necessary governmental approvals in addition to the allocation of
available development rights and approvals for 1800 hotel rooms and related
improvements as contemplated herein under and within the current development
phase of the existing development of regional impact ("DRI") approvals for the
Xentury City Development Project, which is hereby granted and acknowledged by
Landlord (the "Current DRI Allocation"), and (ii) approval by Landlord of the
plans and specifications for such additional improvements, which approval shall
be limited to confirmation by Landlord that such plans are consistent with the
Tenant's obligation to operate a first class destination hotel and convention
center comparable to the Benchmark Hotel, in accordance with the provisions of
this Lease, and with the terms and conditions of the Xentury City Development
Project DRI approvals, and such approval shall not be unreasonably withheld or
delayed. The Tenant's right to construct up to 400 additional hotel rooms in
excess of the initial 1400 rooms to be constructed by Tenant as set forth above
and related convention space expansion (the "400-Unit Expansion"), within the
Current DRI Allocation is hereby acknowledged and agreed by Tenant to be subject
to the time limits set forth in the Xentury City Development Project DRI
approvals. In the event that Tenant does not commence construction of the
400-Unit Expansion prior to the currently-scheduled expiration of the Current
DRI Expansion Landlord and Tenant shall cooperate in good faith to obtain either
an extension of the Current DRI Allocation expiration period, if possible, or
else to undertake such steps as are necessary to move the 400-Unit Expansion
into the next available phase under the Xentury City Development Project DRI
approvals so long as Tenant agrees at the time to pay and bear its fair share of
all necessary costs of obtaining any such extension, or of including the
400-Unit Expansion in and of obtaining the right to proceed with development
under, any such succeeding phase, based upon the relative transportation demands
of the 400-Unit Expansion in proportion to other current-phase capacity
successfully deferred or related-phase capacity so enabled, as applicable.
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(h) Landlord reserves (for itself, its parent company, their
related, affiliated and subsidiary companies, their successors and assigns, the
Xentury City POA and Landlord's contractors and agents): (1) a non-exclusive
easement and right of ingress and egress over the service roads and driveways
which will be constructed within the Project for access to (including and
together with the right to cross any intervening areas immediately contiguous to
and which must be crossed to reach) the Shared Pond Easement Area described in
Exhibit B-2 hereto and all improvements constructed by Landlord therein such as
drainage facilities and structures, Xentury City Development Project entrance
features and landscaping, billboard signage, and/or Xentury City POA common area
improvements for the sole purpose of installation and construction and
maintenance of any such improvements and the Landlord shall diligently cooperate
in good faith with Tenant to the extent possible to minimize any unnecessary
interfere of such entrance features and landscaping, billboard signage, and/or
Xentury City POA common area improvements with sight lines from public
rights-of-way adjacent to the Project or otherwise-available on-site Project
signage and to cause the same to be designed consistently with the Project; (2)
a shared use easement and right for underground storm water drainage under and
across the Shared Drainage Line Easement Area described in Exhibit B-3 annexed
hereto ("Shared Drainage Line Easement Area"), and within the underground storm
water drainage facilities to be constructed by Tenant therein as part of the
Project for storm water drainage flows from lands located within the Xentury
City Development Project south of the Land as identified in Schedule 1 to said
Exhibit B-3 and which have been permitted or which in the future obtain any
necessary permits to drain into the storm water retention and/or detention
facilities constructed and located from time to time within the Shared Pond
Easement Area; and (3) an exclusive easement over and upon the Pervious Only
Area described and depicted in Exhibit B-5 annexed hereto ("Pervious Only
Area"), for landscaping, open space, green belt, conservation, recreation,
underground utilities and other uses ("Pervious Land Uses") which (x) are
compatible with adjacent uses within the Convention Hotel and (y) do not prevent
necessary portions of the Pervious Only Area, as designated on the approved land
use and development permits for the Convention Hotel, from qualifying as
"pervious" areas which are deemed and/or classified to be pervious to stormwater
drainage under applicable Legal Requirements including without limitation
permits and approvals issued for the Convention Hotel by Osceola County,
Florida, the South Florida Water Management District and the Reedy Creek
Improvement District ("Pervious Requirements"). Landlord shall provide Tenant
with proper evidence of insurance coverage naming Tenant as an additional
insured as reasonably requested by Tenant at such time and during any time when
uses of the Pervious Only Area by Landlord hereunder are not merely passive or
maintenance uses but instead affect the Tenant's sole possession and control of
the Pervious Only Area. Until the Project access drives are completed the
Landlord and its designees shall have the right to cross the Land for access to
the Shared Pond Easement Area in such locations as may be appropriate for proper
access which does not unreasonably interfere with Tenant's construction, and
thereafter the Tenant shall have the right to designate a suitable access route
for access to the Shared Pond Easement Area hereunder.
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(i) The Plans and all other plans and working drawings with respect
to the development, construction and alterations of the Convention Hotel shall
be the property of the Tenant, provided however that the Tenant shall provide to
Landlord copies of all as-built plans or access to them at the Project as
provided above. No approval of plans and specifications by Landlord shall be
construed as approval of the structural adequacy of the structures detailed
therein or their conformity to applicable building codes or other legal
requirements, it being agreed that the Tenant shall indemnify and hold Landlord
harmless from all claims and liabilities arising therefrom. Notwithstanding the
foregoing, in the event that this Lease is terminated in connection with a
Termination Notice as contemplated above, or by Landlord pursuant to the
provisions of Article 15 by reason of the default of the Tenant prior to
completion of any Work, including, without limitation, the construction of the
Convention Hotel in the first instance, then, and provided the time periods
within which any Permitted Leasehold Mortgagee may exercise any of its rights
under subparagraph c of Section 16 of this Lease shall have elapsed without the
exercise thereof by any Permitted Leasehold Mortgagee (or with such exercise but
without performance by such Permitted Leasehold Mortgagee as required as a
result of such exercise), all plans, specifications, designs, drawings,
sketches, reports, estimates, models and other documents, matters and
information prepared in connection with the construction of the Buildings
including, without limitation, all Plans including Site, Concept, Engineering,
Architectural or other plans for the Project, shall become the sole property of
Landlord, and the Tenant shall deliver same to Landlord, subject, however, to
the rights of any Permitted Leasehold Mortgagee therein if it elects to enter
into a Novation Ground Lease with Landlord pursuant to Article 16 hereof
(j) [Intentionally Omitted]
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(k) Subject to the provisions of Article 28, the failure of the
Tenant to prosecute to completion any Work once commenced (including correction
of any defects or deviations from the Plans) with reasonable diligence
(consistent with the Project Schedule, if applicable) or the failure of the
Tenant either to complete the initial construction of the Convention Hotel in
the absence of a timely Termination Notice and completion of a release and
conveyance to Landlord hereunder and satisfaction of all related conditions
within the time periods provided in Sections (d) and (e) of this Article, shall
constitute a default by the Tenant hereunder. At such time as any default of the
nature referred to in the immediately preceding sentence becomes an Event of
Default (as hereinafter defined) pursuant to the provisions of Article 15
hereof, Landlord may, if it elects so to do and as an alternative to any other
remedies it may have pursuant to this Lease, take over the completion of the
Work in question and, at its option, complete such Work or cause same to be
completed. In such event, the Landlord may receive advances from any Permitted
Leasehold Mortgagee in respect of insurance or condemnation proceeds, if
Landlord and any such Permitted Leasehold Mortgagee so agree, without liability
of either to the Tenant. Whether or not Landlord shall elect to terminate this
Lease by reason of such default by the Tenant and whether or not Landlord shall
elect to complete such Work, the Tenant nevertheless shall not be released from
any liability under this Lease and shall indemnify Landlord for all loss, costs,
damage and expense (including reasonable attorneys', architects', engineers' and
other professional fees and disbursements) sustained by Landlord in connection
with the completion by Landlord of construction of such Work, and which the full
amount thereof shall constitute additional rent under Section 6 below.
Notwithstanding the foregoing provisions of this Section 2(k), unless all the
then Permitted Leasehold Mortgagees otherwise agree in writing, Landlord shall
not have the right to take over completion of any Work pursuant to this
paragraph unless and until the time within which each Permitted Leasehold
Mortgagee could, under the terms of Article 16 hereof, have cured the default
relating to the Tenant's failure to complete or diligently prosecute Work has
elapsed without any such Permitted Leasehold Mortgagee curing such default;
although Landlord may thereafter exercise its right to take over completion of
the Work, nothing in this Section 2(k) is otherwise intended to diminish the
rights of any Permitted Leasehold Mortgagee contained in Article 16 hereof.
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3. Landlord's Interest not Subject to Certain Liens. (a) The Landlord's
interest in the Demised Premises shall not be subjected to liens of any nature
by reason of the Tenant's construction, alteration, repair, restoration,
replacement or reconstruction of any Buildings on the Demised Premises or by
reason of any other act or omission of the Tenant (or of any person claiming by,
through or under the Tenant) including, but not limited to, mechanics' and
materialmen's liens. All persons dealing with the Tenant are hereby placed on
notice that such persons shall not look to Landlord or to Landlord's credit or
assets (including Landlord's interest in the Demised Premises or the Buildings
constructed thereon) for payment or satisfaction of any obligations incurred in
connection with the construction, alteration, repair, restoration, replacement
or reconstruction thereof. The Tenant has no power, right, or authority to
subject Landlord's interest in the Demised Premises or in the Buildings to any
mechanic's or materialman's lien or claim of lien. If a lien, a claim of lien or
an order for the payment of money shall be imposed against the Demised Premises
or the Buildings thereon on account of work performed, or alleged to have been
performed, for or on behalf of the Tenant, the Tenant shall, within thirty (30)
days after written notice of the imposition of such lien, claim or order, cause
the Demised Premises and the Buildings to be released therefrom by the payment
of the obligation secured thereby or by furnishing a bond or by any other method
prescribed or permitted by law or as may be otherwise approved by Landlord
(which approval shall not be unreasonably withheld or delayed). Upon payment or
satisfaction of a lien, the Tenant shall thereupon furnish Landlord with a
written instrument of release otherwise in form for recording in the office of
the Clerk of the Circuit Court, Osceola County, Florida, sufficient to establish
the release as a matter of record.
(b) The Tenant may, at its option, contest the validity of any lien or
claim of lien if the Tenant shall have first posted an appropriate and
sufficient bond in favor of the claimant or paid the appropriate sum into court,
if permitted by law, and thereby obtained the release of the Demised Premises
and the Buildings from such lien, or if Tenant provides other security or
assurances reasonably approved in writing by Landlord. If judgment is obtained
by the claimant of any lien, the Tenant shall pay the same immediately after
such judgment shall have become final and the time for appeal therefrom has
expired without appeal having been taken. The Tenant shall, at its own expense,
defend the interests of the Tenant and Landlord in any and all such suits;
provided, however, that Landlord may, at its election, and at its expense,
engage its own counsel and assert its own defenses, in which event the Tenant
shall cooperate with Landlord and make available to Landlord all information and
data which Landlord deems necessary or desirable for such defense.
(c) Prior to commencement of any of the Tenant's Work on the Demised
Premises for which a Notice of Commencement is required pursuant to Chapter 713,
Florida Statutes (or its successor), the Tenant shall record such a notice in
the office of the Clerk of the Circuit Court, Osceola County, Florida
identifying the Tenant as the party for whom such work is being performed and
requiring the service of copies of all notices, liens or claims of lien upon the
Tenant and the Landlord.
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4. Use. (a) The Tenant shall operate the Project as a first class
destination hotel and convention center in accordance with the Operating
Standards for the accommodation of hotel and convention guests, and for related
convention, meeting and similar purposes, throughout the Term hereof, with
related shops, stores, restaurants and such other amenities as are in keeping
with operation of such a facility, and for no other purpose, and except for
reasonable interruptions for reasonable periods for repairs, renovations,
replacements and rebuilding in the ordinary course of operations, all of which
will be carried out pursuant to, and in accordance with, the applicable
provisions of this Lease. There will be no change in the primary use of the
Project as a first class destination hotel and convention center (time-sharing
or time interval Landlordship will be deemed a change in use) or any
discontinuance of use, without the prior written consent of Landlord. Until and
unless the balance of the Xentury City CDD property shall be fully developed and
built out, the Tenant shall not increase the number of guest rooms above 1800,
or amount of convention area above the greater of (i) 350,000 square feet or
(ii) 260 square feet per hotel guest room (exclusive or "pre-function" or
"back-of-the-house"areas), without the prior written consent of the Landlord
which may be withheld in the Landlord's sole discretion unless the Landlord
determines that any such increase will not limit or delay or potentially
increase the burden or conditions on or otherwise adversely impact, or have a
reasonable potential to adversely impact, the development of all remaining
undeveloped parcels. Notwithstanding the foregoing or any other provision of
this Lease to the contrary, changes in configuration, size or use of the guest
room space, common areas, meeting and exhibit space, number or size of
restaurants, retail facilities or any other aspect of the Project shall not,
subject to the provisions of Section 10 of this Lease, require the consent of
the Landlord, provided the Project shall continue to be operated in a manner
consistent with operation of a first class destination hotel and convention
center consistent and in accordance with the Operating Standards. Throughout the
Term the Tenant shall reserve and make available to Landlord or Landlord's
designee upon reasonable prior request (written or through the Convention Hotel
reservation process) one of the Convention Hotel's larger suites at the
Convention Hotel's most-favored corporate rate for use from time to time on an
as-requested basis, subject to unreserved availability.
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(b) The Tenant represents, covenants and warrants that throughout the
Term, the Tenant shall, at its own cost and expense, timely observe and comply
in all material respects: with all Legal Requirements and with all Insurance
Requirements applicable to the Buildings and/or the Demised Premises and use
and/or occupancy thereof. Anything herein to the contrary notwithstanding, the
Tenant may contest any Legal Requirements or Insurance Requirements which it, in
its reasonable judgment, deems unreasonable or inapplicable, and may, during the
pendency of such contest, defer compliance with any Legal Requirements provided
that such contest and/or non-compliance: (1) does not subject the Tenant's
interest in the Demised Premises, the Buildings, the Furnishings or any part of
the foregoing to the imminent risk of sale or forfeiture; (2) does not
imminently jeopardize the continuing operation of the hotel business as
contemplated under this Lease or Tenant's ability to pay all amounts coming due
and payable hereunder, or imminently threaten any reduction in Gross Revenues;
and (3) does not subject Landlord to damages, a fine or a penalty for which
Tenant has not provided to Landlord adequate security or other adequate
assurances of payment, or the risk of forfeiture of its interest in the Demised
Premises, the Buildings or the Furnishings, or any part thereof. The Tenant
agrees to give Landlord written notice of any violation of any Legal and/or
Insurance Requirement affecting the Project, which is posted on, or fastened or
attached to, the Land, or of which the Tenant otherwise becomes aware, within
ten (10) days after receipt or posting of any such notice or the Tenant obtains
actual knowledge of such violation, unless such violation: (1) would not subject
the Tenant's interest in the Demised Premises, the Buildings, the Furnishings or
any part of the foregoing to the imminent risk of sale or forfeiture; (2) would
not imminently jeopardize the continuing operation of the hotel business as
contemplated under this Lease or Tenant's ability to pay all amounts coming due
and payable hereunder, or imminently threaten any reduction in Gross Revenues;
and (3) would not subject Landlord to damages, a fine or a penalty for which
Tenant has not provided to Landlord adequate security or other adequate
assurances of payment, or the risk of forfeiture of its interest in the Demised
Premises, the Buildings or the Furnishings, or any part thereof. The Tenant
shall indemnify Landlord against all liability for damages, interest, penalties
and expenses (including reasonable attorneys' fees and disbursements) resulting
from, or incurred in connection with, any such contest or non-compliance, except
to the extent of any actual fault of Landlord in connection therewith.
(c) The Tenant shall not use or occupy or allow or suffer the Demised
Premises or the Buildings or any part thereof to be used or occupied for any
purpose other than as set forth in paragraph (a) of this Article, or which is in
contravention of any Certificate of Occupancy, nor shall the Tenant commit or
suffer any use, occupancy, act or omission to be done or condition to exist in
the Buildings, or on the Demised Premises which may constitute a nuisance,
public or private, provided the Tenant shall not be in violation of this
covenant, provided the Tenant has undertaken to cure any such condition upon the
Tenant obtaining knowledge of such condition, and the Tenant is diligently
pursuing the cure of such condition.
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(d) Subject to the rights of the Xentury City CDD and interests and
activities (including public interests) contemplated under the CDD Project
Agreement, the Tenant shall not knowingly suffer or permit the Demised Premises
to be used by the public in a such manner which would impair Landlord's title
to, or its reversionary interest in, the Demised Premises, Buildings or
Furnishings or any portion thereof, or which would support or provide a claim or
claims of adverse usage or adverse possession by the public, or of implied
dedication of the Demised Premises or any portion thereof or interest therein.
(e) The Tenant shall have no right to convert the use of the Buildings
and/or its leasehold estate under this Lease to any time sharing, time interval
or cooperative form of ownership, or to subject the same to any condominium
regime. Tenant shall have no right to otherwise alter the legal nature of its
ownership of the leasehold estate created by this Lease or its ownership of the
Buildings, but nothing in this sentence shall be deemed to limit the rights of
Tenant under Article 12 hereof.
(f) The Tenant's use of that portion of the Demised Premises legally
described in Exhibit B-4 attached hereto and by this reference made a part
hereof (the "Southerly Parking Area") shall be limited at all times hereunder to
use for Convention Hotel guest and employee (and occasional short-term bus)
parking only, and the Southerly Parking Area shall not be used for any other use
including without limitation truck, maintenance vehicle, bus, camper, or RV
parking [other than occasional short-term bus parking for periods of not more
than 5 days during times of peak parking demands], and shall be improved,
maintained and used only in accordance with the terms of this Paragraph 4.(f).
The Southerly Parking Area shall be improved only for passenger vehicle parking
and related access ways, curbs, gutters, drainage and landscaping, and shall be
improved and maintained at all times with adequate landscaping buffers to
minimize visual or other impacts upon adjacent development parcels within the
Xentury City Development Project. The Landlord hereby reserves the right, at
Landlord's sole cost and expense, in connection with the development of adjacent
parcels within the Xentury City Development Project, to unilaterally (and the
Tenant hereby agrees to) modify the boundaries and relocate and reconstruct
improvements of and within the Southerly Parking Area, as required by Landlord
under plans developed with Tenant or provided for Tenant's prior written
approval (which shall not unreasonably be withheld, conditioned or delayed)
provided only that: (1) the number of passenger vehicle parking spaces therein
is not reduced; (2) reasonably equivalent driveway connections to the balance of
the Demised Premises and site landscaping are maintained or replaced; (3) all
Southerly Parking Area site drainage and similar infrastructure facilities are
preserved or replaced in accordance with all applicable Legal Requirements; and
(4) Tenant is provided with a reasonable opportunity to approve in advance all
construction scheduling in order to minimize any necessary adverse impacts on
Tenant's activities at the Demised Premises. To the extent that such relocation
by Landlord requires Tenant to provide temporary off-site parking for guests and
employees other than upon lands adjacent to the Convention Hotel which are
provided at no charge by or at the request of Landlord, then Landlord shall
reimburse Tenant for all additional costs incurred by the Tenant in providing
such facilities such as (but not limited to) the costs of signage, security and
transportation, if any.
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(g) The Tenant's and the Landlord's shared use of the use of the Shared
Drainage Line Easement Area and the Shared Use Retention Pond Easement Area
shall be exercised strictly in accordance with the following terms and
conditions of this Paragraph 4.(g):
(i) Tenant shall (subject to its right to obtain a partial
reimbursement from Landlord as provided below) properly maintain and repair the
Shared Drainage Line Easement Area and the shared use drainage facilities
located therein at Tenant's expense at all times, and the Shared Use Retention
Pond Easement Area and the shared drainage facilities located therein shall be
maintained by the Xentury City POA at its cost and expense at all times as
Common Elements under the Declaration (as identified and defined below);
(ii) The Tenant's right to drain into and drainage capacity within
the Shared Use Retention Pond Easement Area and the drainage facilities located
therein shall be non-exclusive of other properly permitted drainage or other
compatible uses and shall be limited to, and Landlord and/or the Xentury City
POA shall construct and maintain shared drainage facilities therein adequate to
accept, drainage flows only from the specific portion of the Land as generally
depicted in Schedule I to Exhibit B-2 attached hereto and by this reference
incorporated herein and containing approximately twenty-five and six tenths
(25.6) acres and limited to flows which would be generated from development
intensity and impervious surface thereon resulting in a maximum discharge into
the shared drainage facilities within the Shared Drainage Line Easement and then
into the Shared Use Retention Pond Easement Area of no more than one hundred and
forty-three (143) cubic feet per second of properly designed and permitted storm
water flows based on a 50-year 72-hour design storm which is the regulated
design storm as of the initial construction of the Project (the "Design Storm
Event").
(iii) Similarly, the Landlord's right to drainage capacity through
the Shared Drainage Line Easement Area shall be non-exclusive of Tenant's other
properly permitted drainage and shall be limited to, and Tenant shall construct
and maintain shared drainage facilities therein adequate to transmit, drainage
flows only from the adjacent properties in the Xentury City Development Project
as generally depicted in Schedule I to Exhibit B-3 attached hereto and by this
reference incorporated herein, or other adjacent properties, containing not more
than fifteen and five tenths (15.5) acres and limited to flows which would be
generated from development intensity and impervious surface thereon resulting in
a maximum discharge into the shared drainage facilities within the Shared
Drainage Line Easement of no more than eighty-seven (87) cubic feet per second
of properly designed and permitted storm water flows based on the Design Storm
Event. In consideration of Tenant's properly maintaining the Shared Drainage
Line Easement Area and all the shared drainage facilities located therein, the
Landlord shall reimburse Tenant on an annual basis (subject to Tenant furnishing
reasonably acceptable evidence of the costs actually incurred in maintaining all
drainage-related facilities) for its Volumetric Share of available shared
drainage transmission capacity within the Shared Easement Area reserved and
allocated to Landlord, which has been established as Forty Percent (40%).
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(iv) Landlord and Tenant do each hereby covenant and agree for the
benefit of the other not to discharge, or to cause or allow to be discharged,
any pollutants in excess of quantities or levels permitted by law, whether in
connection with a single incident or over time, either directly or indirectly,
from their respective parcels into, onto, through or upon the Shared Drainage
Line Easement Area or the Shared Use Retention Pond Easement Area. For purposes
hereof, "pollutants" shall be defined as any pollutant contaminant, toxic or
hazardous substance, or gasoline, oil or any petroleum product, all as defined
in or contemplated by any federal, state, local or other applicable governmental
authority's law, rule, guideline, standard, regulation or ordinance. Each party
hereto shall be solely and completely responsible for assuring that no
pollutants in excess of quantities or levels permitted by applicable law,
whether in connection with a single incident or over time, will be discharged
from its respective parcel or parcels into, onto, through or upon the Shared
Drainage Line Easement Area or the Shared Use Retention Pond Easement Area. Each
party shall be liable to the other parties hereto, except in the instance of the
active negligence or intentional misconduct of the other party, or its
respective successors and assigns, for any and all damage, loss, cost or other
liability incurred as a result of or in any way connected with pollutants in
excess of such quantities or levels discharged into, onto, through or upon the
Shared Drainage Line Easement Area or the Shared Use Retention Pond Easement
Area from such party's parcel or property without regard to fault, knowledge or
lack of knowledge of, or acquiescence to, such discharge on the part of said
party, it being the intent hereof that each party shall be strictly liable for
the discharge of pollutants into, onto or upon the other party's property. Such
party shall reimburse the other party for any and all costs and expenses
incurred as a result of or in any way connected with any claims related to or
arising out of any such discharge of pollutants from said party's parcel,
including payment of reasonable attorneys' and consultants' fees and costs. In
the event that either party to this Lease, including its successors or assigns,
is actively negligent and such active negligence causes or contributes to any
such damage or liability incurred as a result of or in any way connected with
pollutants discharged from another party's parcel, such actively negligent party
shall be responsible for its negligence and proportionate share of the damages,
including attorneys fees and costs as provided above, as determined by law.
(v) Landlord and Tenant each hereby agree that to the extent that
either party hereto shall be responsible for construction or maintenance of any
of the facilities contemplated to be located within the Shared Drainage Line
Easement Area or the Shared Use Retention Pond Easement Area, then said party
agrees, for the benefit of the other party hereto, that: (i) there shall be no
design or structural defects in such facilities or defects in workmanship
related to such facilities, (ii) there shall be no personal injury or property
damage, including without limitation, personal injury or property damage to
third parties, arising from or in connection with any construction or
maintenance activities, (iii) there shall be no failure to undertake and
complete such maintenance, repair and replacement activity as is contemplated
herein, and (iv) that there shall be no disturbance of or damage to any utility
facilities located within any relevant utility easement areas and the
construction or maintenance activities shall not result in the need for
repairing, replacing and/or relocating any such utility facilities. In the event
that any party breaches the provisions of this subparagraph, the injured parties
shall be entitled to recover all losses and/or damages incurred or assessed
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against such injured parties as a result of such breach, including reasonable
attorneys' and consultants' fee and costs.
(vi) Subject to the rights of third parties under existing
agreements with the Landlord and its affiliates, Landlord agrees that billboard
signage, once constructed by Landlord and its affiliates or their successors or
assigns within the Shared Use Retention Pond Easement Area in accordance with
currently existing billboard signage approvals which have been obtained from
Osceola County, shall not be expanded or enlarged in any material way which
would cause or increase any material and direct adverse impact on sight lines to
the Project or Project signage from adjacent roadway areas without the prior
written approval of the Tenant, which approval shall not unreasonably be
withheld, conditioned or delayed so long as all reasonable efforts are made to
minimize unnecessary impacts on the Project or if such changes are necessitated
by changes in regulations applicable to such billboard signs.
(h) The Tenant's use of that portion of the Demised Premises legally
described in Exhibit B-5 attached hereto and referred to herein as the "Pervious
Only Area" shall be limited at all times hereunder to use for landscaped green
space or similar uses which do not prevent the Landlord from the full exercise
and enjoyment of its reserved easement rights to use the Pervious Only Area for
Pervious Uses, and to other intermittent and short term uses requested by Tenant
and approved in writing by Landlord from time to time, which approval shall not
be unreasonably conditioned, withheld or delayed so long as Tenant's proposed
short-term uses do not materially interfere with Landlord's proper use of the
Pervious Only Area, and the Pervious Only Area shall not be used for any other
use including without limitation stormwater management or other site
infrastructure or parking or any vertical development, and the Pervious Only
Area shall be improved, maintained and used only in accordance with the terms of
this Paragraph 4.(h). The Pervious Only Area shall be improved and maintained at
all times by the Tenant as a properly landscaped green area, recognizing however
the location of the Pervious Only Area toward the rear of the Project, but
landscaped consistently with the adjacent exterior areas of the Convention Hotel
and adjacent areas of development parcels within the Xentury City Development
Project. The Landlord hereby reserves the right, at Landlord's sole cost and
expense, in connection with the development of adjacent parcels within the
Xentury City Development Project, to unilaterally (and the Tenant hereby agrees
to) modify the boundaries of and relocate the Pervious Only Area, as required by
Landlord under plans developed with Tenant or provided for Tenant's prior
written approval (which shall not unreasonably be withheld, conditioned or
delayed) provided only that reasonably equivalent landscaping is maintained or
replaced, that such relocation of the Pervious Only Area does not cause a
violation of any permit issued under applicable Legal Requirements for the
Convention Hotel, and Tenant continues to have reasonable access for ongoing
maintenance of the Pervious Only Area and the Pervious Only Area continues to be
contiguous to the balance of the Demised Premises. Notwithstanding the foregoing
the Tenant shall also be entitled to use the Pervious Only Area for construction
staging activities prior to the Completion Date but only in accordance and
subject to all applicable terms of Paragraph 6(e) of the Land Development
Agreement.
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5. Landlord's Delivery of Utility Improvements. (a) As part of the Landlord
Responsibilities, Landlord shall be responsible, at its sole cost and expense,
to arrange for the delivery of permanent installations for potable water,
sanitary sewer lines, natural gas lines, electricity and storm drainage
connections (the "Utilities"), telephone lines and cable television lines to
locations along the property line of the Land. Landlord covenants that the
Utilities, telephone lines and cable television lines shall enter the Demised
Premises only through the beds of public streets and/or through underground
easements or rights of way which shall be granted by Landlord to the relevant
utility companies (the "Utilities Easements"). The parties shall endeavor to
cooperate with each other and to coordinate their efforts in provision for the
supply of the Utilities, telephone lines and cable television lines to the Land.
The Utilities shall be in place at the property line by the dates set forth in
the Land Development Agreement. In the event the Utilities are not in place by
the dates set forth in the Land Development Agreement, the Tenant may exercise
the remedies set forth in the Land Development Agreement, including, without
limitation, the right to arrange for completion of the delivery and installation
of the Utilities, with the costs incurred by the Tenant to be offset against
Rent owed by the Tenant to the Landlord hereunder.
(b) Except for the Landlord Responsibilities, the Tenant will be
responsible, at its sole cost and expense, for preparation of the Land and will
provide for all other on-site requirements for the Convention Hotel, including,
without limitation, roads, bridges, parking, walkways, any utilities, on-site
drainage requirements and systems, lakes and any recreational activities within
the Land; Landlord shall have no obligation to provide for any on-site
requirements except for the Landlord Responsibilities or as otherwise expressly
provided for in this Lease or in the Land Development Agreement.
(c) Except as otherwise expressly provided herein or in the Land
Development Agreement, the Tenant will be responsible for any on-site utilities
and shall pay customary hook-up and service fees, including, without limitation,
the cost and construction of the substations to be located on the Land with the
exception of the equipment which may be supplied by the utility company, i.e.,
the Tenant shall construct and pay for the duct bank to connect the manhole to
the substation, the pad and the enclosure.
6. Rent. (a) Certain additional Definitions. For the purposes of this
Article 6 the following terms shall have the following definitions:
(i) "Accounting Month" shall mean each period of time consisting
of not less than three (3) nor more than six (6) full calendar weeks that is
used by the Tenant or its manager of the Convention Center and Hotel within the
Project (the "Manager") in its accounting of the operations of the Project as
one of not less than twelve (12) accounting periods in any calendar year during
the Term of this Lease. Tenant shall notify Landlord, promptly following the
Opening Date, of the commencement and expiration dates of each Accounting Month
as in effect following the opening of the Convention Hotel and shall thereafter
notify Landlord of any modifications thereto, forthwith upon Tenant's first
becoming aware of same.
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(ii) "Affiliated Entity" shall mean any entity controlling,
controlled by of under common control with Tenant, or any general partner in
Tenant if Tenant is a partnership, or any officer or director (or stockholder,
if Tenant is a privately held corporation) of Tenant if Tenant is a corporation,
or any trustee of Tenant if Tenant is a trust, or any beneficiary of Tenant if
Tenant is a private trust; and as used in the provisions of this Lease other
than this Article 6, "Affiliate of Tenant" shall mean any entity controlling,
controlled by or under common control with Tenant, or any constituent partner,
or any officer, director, employee, agent, representative, successor or assign
of any of the foregoing (or any stockholder if Tenant is a privately held
corporation), or any trustee of Tenant if Tenant is a trust, or any beneficiary
in Tenant if Tenant is a private trust.
(iii) Intentionally Omitted.
(iv) "Annual Escalator Amount" shall mean, for each period
following the Stabilization Date during which the Base Rent is subject to
increase by the Annual Escalator Amount, the Annual Escalator Percentage times
the annualized amount of Base Rent in effect immediately prior to such increase.
(v) Intentionally Omitted.
(vi) Intentionally Omitted.
(vii) "Exclusion Items" shall mean and include only the following
items of or related to revenue, which shall be excluded from (or deducted to the
extent included in) the calculation of Gross Revenues hereunder:
(1) interest income earned by Tenant;
(2) the sale of used equipment, trade fixtures or other
capital assets, and of supplies or inventory;
(3) loan proceeds, capital contributions, condemnation
proceeds (other than those received in respect of a temporary taking),
and insurance proceeds other than so-called "rent or rent interruption
insurance" proceeds;
(4) such credits, allowances, and refunds as may be
customary from time to time in the hotel industry, including without
limitation actual charge-offs for "errors and concessions" against
hotel revenues and actual bad debt charge-offs of accrued amounts
receivable to the extent previously included in Gross Revenues (but
not allowances for bad debts) and returns of merchandise from or on
behalf of customers;
(5) credit card company fees customarily deducted from
credit card remittances;
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(6) third-party travel agent commissions and amounts
actually disbursed to third parties by the Convention Hotel, if any,
for hotel guest frequency programs;
(7) service charges paid by guests to the extent paid to
employees of the Project as tips and gratuities;
(8) rents and license fees from subtenants and
concessionaires;
(9) the amount of any sales, use or excise taxes, taxes on
rents and other similar taxes; use or excise taxes, taxes on rents and
other similar taxes;
(10) expenses paid by Tenant to licensees, subtenants and
Affiliates of Tenant which are (and only to the extent of the amount)
included again in Gross Revenues hereunder as Gross Revenues of any
such licensee, subtenant or Affiliate;
(11) pass-through charges paid by hotel guests, including
amounts included with guest room charges by contract with
convention-booking agencies, and paid in full to unrelated third
parties without retention of any portion thereof by Tenant, including
items such as transportation charges or parking charges payable to
third-party parking providers; and
(12) deposits received for reservations in any other hotel
to the extent the deposit is paid over to the other hotel.
(viii) "Generally accepted hotel accounting principles" shall mean
the Uniform System of Accounts for Hotels of the Hotel Association of New York
City, Inc. (as the same may be revised from time to time) or, if such system is
no longer generally recognized by the hotel industry in the United States as a
standard for generally accepted hotel accounting principles, such successor or
other standard as is then so recognized and as is most consistent with the
accounting principles and practices theretofore applied with respect to the
Project.
(ix) "Gross Revenues" shall mean and include all revenues and
receipts derived by Tenant, and/or by any subtenants or concessionaires of
Tenant (or when the term is used with respect to any entity other than Tenant,
all revenues derived by such other entity) in respect of the Project from
whatever source, including without limitation all hotel departments, services
and operations, on- and off-premises catering, all meetings, conventions,
entertainment venues, and all sales and services in, about, and originating
from, the Project (including any common areas and the Buildings), and excluding
but only excluding the "Exclusion Items" as defined above. Gross Revenues shall
not be deemed cumulative
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from one Hotel Year to any succeeding Hotel Year but, rather, they shall be
computed separately for each Hotel Year on an accrual basis in accordance with
generally accepted hotel accounting principles, consistently applied. For the
purpose of determining Percentage Rent under this Article, Gross Revenues
derived by a subtenant or concessionaire of Tenant or any Affiliated Entity, or
by any person for the use, account or benefit of Tenant, shall be deemed Gross
Revenues received by Tenant.
(x) "Hotel Year" shall mean, for the first Hotel Year, the period
commencing on the first day of the Accounting Month during which the Opening
Date occurs and ending on December 31 in the calendar year during which the
Hotel is first opened to the public for business and, for subsequent Hotel
Years, each consecutive twelve (12) calendar-month period, after the first Hotel
Year, which commences on January 1 and ends on December 31 throughout the
remainder of the Term; provided, however, that the final Hotel Year shall
consist of the period commencing on the January 1 immediately following the
penultimate Hotel Year and ending on the last day of the Accounting Month during
which this Lease expires or is terminated in accordance with its terms.
(xi) "Opening Date" shall mean the date on which the Project opens
for business with the general public.
(xii) "Prime Rate" shall mean the fluctuating annual rate equal at
all times to two percent (2%) per annum above the highest annual prime rate (or
base rate) published from time to time in The Wall Street Journal under the
heading "Money Rates" or any successor heading as being the rate in effect for
corporate loans at large U.S. money center commercial banks (whether or not such
rate has actually been charged by any such bank) or if such rate is no longer
published, then the highest annual rate charged from time to time at a large
U.S. money center commercial bank selected by Landlord (by notice to Tenant) on
short-term, unsecured loans to its most creditworthy large corporate borrowers.
Each change in the Prime Rate shall take effect on the first day of the
Accounting Month immediately succeeding the Accounting Month in which the
corresponding change occurs in the then applicable rate referred to above, and,
in the event of multiple changes in such applicable rate during the subject
Accounting Month, the change in the Prime Rate shall be based on the last such
applicable rate in effect during the subject Accounting Month.
(xiii) "Rent" shall mean all rent reserved under this Article 6
including the Base Rent, Percentage Rent and all Additional Rent, and any
further sums due from Tenant whether or not characterized as additional rent
under the provisions of this Lease; all such further sums shall be collectible
in the same manner and by the same remedies as rent reserved under this Article.
(xiv) "Rent Commencement Date" shall mean April 1, 1999.
(xv) "Stabilization Date" shall mean the earlier of (i) the first
day of the first calendar month following the first consecutive twelve (12)
month period in which Project hotel room occupancy meets or exceeds an average
of Eighty Percent (80%), or (ii) the fifth (5th) year anniversary of the Opening
Date for the Project.
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(b) Base Rent.
(ii) No Rent shall be payable with respect to any period
during the Term of this Lease prior to the Rent Commencement Date.
(iii) From and after the Rent Commencement Date, Base
Rent shall be payable as follows:
(1) For the period commencing on the Rent
Commencement Date, and expiring on the day immediately prior
to the date (the "Base Rent Increase Date") which is the
earlier of the Opening Date or March 1, 2002, Tenant shall
pay as initial Base Rent for each Hotel Year (or portion
thereof) during such period, an annual sum of Eight Hundred
Fifteen Thousand Four Hundred and Fifty Dollars ($815,450)
per year, payable monthly in advance in equal monthly
payments of Sixty-Seven Thousand Nine Hundred Fifty Four and
17/100 Dollars ($67,954.17) per month commencing on the Rent
Commencement Date and continuing on the first day of each
month thereafter, which initial Base Rent amount shall not
be subject to adjustment by the Annual Escalator.
(2) From and after the Base Rent Increase Date,
the Base Rent shall be increased to Two Million Nine Hundred
Ninety Thousand Four Hundred and Fifty Dollars ($2,990,450)
per year and shall thereafter continue to be payable
monthly, in advance, on or before the first day of each
calendar month in equal monthly installments of Two Hundred
Forty-Nine Thousand Two Hundred Four and 17/100 Dollars
($249,204.17) per month.
(3) On and as of the Stabilization Date, and then
again on and as of the next January 1 immediately following
the Stabilization Date (which the parties acknowledge in all
likelihood will not be a full year thereafter), and then
continuing annually on and as of January 1 of each year
thereafter, the amount of the Base Rent shall be increased
by the Annual Escalator Amount, and the monthly installment
payments thereof shall be increased accordingly.
(c) Percentage Rent. From and after the Opening Date,
Percentage Rent shall be payable by Tenant to the Landlord hereunder as follows:
(i) Tenant shall pay to Landlord Percentage Rent on an
annual basis in an amount equal to the Percentage Rent Percentage of annual
Gross Revenue for the Project for the immediately preceding Hotel Year. The
Percentage Rent Percentage initially shall be equal to Five Tenths of One
Percent (0.5%), but shall be subject to upward adjustment as follows:
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(1) Stabilization of Project. Beginning on the
Stabilization Date, the Percentage Rent Percentage shall
increase by One Quarter of One Percent (.25%); and
(2) Non-Recourse Financing. Beginning with the
year following the year in which the First Permitted
Leasehold Mortgage secures Full Nonrecourse Debt, the
Percentage Rent Percentage shall increase by One Quarter of
One Percent (.25%) [for purposes of this sub-Section
6(c)(i)(2), "Full Nonrecourse Debt" shall be defined as debt
which is non-recourse to the Tenant and its Affiliates as to
the payment of principal and interest (other than for
principal and interest which could become payable with
recourse under specifically-enumerated conditions such as
potential fraud, environmental liability, misapplication of
insurance proceeds or hotel revenues and similar
eventualities), and Tenant agrees to use its best efforts to
secure Full Nonrecourse Debt as such time as the same
becomes available to Tenant upon commercially reasonable
terms acceptable to the Tenant]; and
(3) Ten Year Operation. Beginning with the tenth
(10th) year following the Opening Date for the Project, the
Percentage Rent Percentage used to calculate Percentage Rent
for the 10th Hotel Year (and each Hotel Year thereafter)
shall increase by One Quarter of One Percent (.25%).
In no event shall the total amount of the Percentage Rent in any Hotel
Year exceed One and One-Quarter Percent (1.25%) of Gross Revenue for
the immediately preceding Hotel Year.
(ii) Percentage Rent shall be calculated on or before
the end of the first Accounting Month following the end of each Hotel Year (each
a "Percentage Rent Calculation Date") based on Gross Revenue for the immediately
preceding Hotel Year, and shall be paid to the Landlord on or before forty-five
(45) days following the end of the Hotel Year for which such Percentage Rent is
payable and has been calculated (each a "Percentage Rent Payment Date"). For
purposes of calculating the Percentage Rent the definition of "Gross Revenues"
hereunder shall be deemed to include, without limitation, all revenues within
the definition of Gross Revenues set forth above, and the Tenant's calculation
thereof shall be subject to audit by the Landlord in accordance with the audit
provisions set forth herein.
(iii) As provided above, once commenced the Annual
Escalator shall apply to increase the Base Rent on an annual basis, however the
Percentage Rent shall be subject to adjustment in accordance with this
sub-paragraph 6.(c)(iii). On or before each Percentage Rent Calculation Date
following the Stabilization Date, the Tenant shall deliver to the Landlord
written notice calculating (i) the increase in the Base Rent for the immediately
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preceding Hotel Year (the "Adjustment Year"), resulting from the Annual
Escalator, over the amount of the Base Rent for the previous Hotel Year (the
"Base Rent Increase"), and the amount of the increase, if any, in the Percentage
Rent to be paid to the Landlord for the Adjustment Year over the amount of the
Percentage Rent for the previous Hotel Year (the "Percentage Rent Increase").
The amount of the Percentage Rent shall be reduced by the amount of the
Percentage Rent Increase, if any, up to a maximum reduction amount, however,
equal to (and not to exceed) the amount of the Base Rent Increase.
(iv) Percentage Rent for the final Hotel Year shall be
payable on the last day of the Lease Term, based upon Tenant's good faith
estimate consistent with relevant daily occupancy and sales levels, and shall be
subject to final adjustment between the parties based upon actual Gross Revenues
on or before forty-five (45) days following the end of the Lease Term.
(d) Quarterly Gross Revenues Statements. On or before the
thirtieth (30th) day following the last day of the last Accounting Month during
each calendar quarter of each Hotel Year (the "Subject Quarter"), Tenant shall
submit to the Landlord a statement (the "Quarterly Gross Revenues Statement"),
setting forth in reasonable detail all items of Gross Revenues and the
derivation thereof, and the gross rents and license fees referred to in the
definition of Gross Revenues hereunder, in each case, derived by or for the
benefit of Tenant or otherwise from the Project in respect of the Subject
Quarter and the resulting amount of the Percentage Rent for the Subject Quarter,
notwithstanding that the same shall not be payable until following the end of
the subject Hotel Year; together with copies of any statements received by
Tenant or its Affiliates from the Hotel Manager and/or from Tenant's subtenants
and concessionaires with respect to the matters referred to in the foregoing
clauses of this section [for any Tenant which is, or which is a consolidated
affiliate of, a publicly-traded entity with regulated quarterly and annual
financial statement filing requirements with the United States Securities and
Exchange Commission or equivalent (herein a "SEC Filing Tenant"), the quarterly
and annual statement dates provided in this paragraph and the immediately
following paragraph shall be extended to the date which is two (2) business days
following the regular due dates of such public quarterly and annual filings, as
applicable]. In addition, notwithstanding the provisions of sub-section
6.(c)(ii) above, each Tenant which is a SEC Filing Tenant shall pay each annual
payment of Percentage Rent for the prior Hotel Year on or before the Percentage
Rent Payment Date as set forth above or within five (5) business days following
release of such SEC Filing Tenant's annual earnings announcement, whichever is
earlier, based upon internally-available calculations (or to the extent
unavailable, good faith estimations) of Gross Revenues for the prior Hotel Year
just ended, but shall not be obligated to release to Landlord any Gross Revenues
statements or other financial information relative to the Convention Hotel until
the Annual Gross Revenues Statement is due hereunder.
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(e) Annual Gross Revenues Statements. Tenant shall, by no
later than sixty (60) days following the end of each Hotel Year, furnish to
Landlord for such Hotel Year: (i) a complete statement (the "Annual Gross
Revenues Statements"), certified by an independent certified public accountant
who is actively engaged in the practice of his profession and is acceptable to
Landlord or for any SEC Filing Tenant, certified by internal CPA auditors
employed by the Tenant as also being consistent in all material respects with
information furnished in connection with and forming the basis for independently
audited annual financial statements for the SEC Filing Tenants's consolidated
reporting group (which statement shall also be certified either by an officer
of, or a partner in, Tenant or by the Hotel Manager), setting forth, with
respect to such Hotel Year, the matters dealt with by the Quarterly Gross
Revenues Statement (the term "Hotel Year" being substituted for the term
"Subject Quarter" where applicable for the purposes of the Annual Gross Revenues
Statements), and (ii) copies of statements from the Hotel Manager and from
Tenant's subtenants and concessionaires as to their respective operations at the
Project setting forth in reasonable detail all Gross Revenues derived, by them,
respectively, in respect of the Project [it being understood that Tenant shall
not be in breach of this clause (ii) for failure to provide any such statement
if the Hotel Manager, a subtenant or concessionaire has failed to deliver such
statement to Tenant, provided that: (x) Tenant's Hotel Management Agreement (as
hereinafter defined) with such Hotel Manager or Tenant's sublease or concession
agreement with such subtenant or concessionaire (as the case may be) includes
provisions obligating such Hotel Manager, subtenant or concessionaire to prepare
and deliver such statement in sufficient time to allow Tenant to comply with
this clause (ii); and (y) Tenant is using its best efforts to obtain compliance
with such provisions and continues to do so]. If the Annual Gross Revenues
Statement for any Hotel Year indicates that any payments of Percentage Rent
theretofore made with respect to such Hotel Year exceed the actual final amounts
due for such Hotel Year, the amount of any such overpayment, together with
interest thereon calculated as set forth below in this paragraph, shall be
credited against the next payment or payments of Rent (including Base Rent as
well as Percentage Rent) falling due. Alternatively, if the Annual Gross
Revenues Statement indicates that total payment of Percentage Rent theretofore
made with respect to such Hotel Year is less than the Percentage Rent amount due
for such Hotel Year as established under the Annual Gross Revenues Statement,
then Tenant shall distribute the balance together with interest thereon
calculated as set forth below in this paragraph, to the Landlord concurrently
with the submission of the Annual Gross Revenues Statement. Any underpaid amount
of Percentage Rent shall accrue interest at the Prime Rate from the date due and
payable under the Agreement until the date on which the Annual Gross Revenues
Statement is due, and thereafter shall bear interest at the highest rate allowed
by law until paid in full.
(f) Rent Abatements. There shall be no abatement of any
Rent due under this Lease for any reason except as specifically provided for
herein.
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(g) Miscellaneous Rent Provisions. (i) Tenant shall at all
times during the Term of this Lease keep and maintain (separately from any of
its other books, records and accounts) accurate, complete and up-to-date books
and records pertaining to the Project, including books of account reflecting the
operations of the Project and all matters referred to in this Article and in the
other Articles of this Lease. Following the opening of the Project to the public
for business, the Landlord or its representatives shall have, at all reasonable
times during normal business hours, reasonable access, on reasonable advance
notice, to the books and records of Tenant pertaining to the Project, including
books of account properly reflecting the operations of the Project, which books
and records shall be kept at the Project, and the Landlord shall have the right
to cause an independent audit of said books and records to be made at any time
[but not more frequently than once in any twelve (12) month period unless a
material misrepresentation or omission of Tenant's reported Gross Revenues are
discovered], at Landlord's expense. Such right of inspection and audit may be
exercised by Landlord at any time within three (3) years after the end of the
Hotel Year to which such books and records relate (but only once for each Hotel
Year absent evidence of an material misrepresentation or omission not disclosed
by a prior audit for any Hotel Year), and Tenant shall maintain all such books
and records for at least such period of time and, if any dispute between the
parties with respect to this Lease has arisen and remains unresolved at the
expiration of such period of time, for such further period of time until the
final resolution of such dispute. Further, each lease or concession agreement or
other agreement entered into by Tenant with a subtenant or concessionaire in
connection with the Project shall contain a provision pursuant to which Tenant
and Landlord are granted the same rights with respect to the books and records
to be maintained as aforesaid, which provisions Tenant shall use its best
efforts to enforce. Any Annual Gross Revenues Statement shall be deemed accepted
by Landlord as correct if Landlord does not give its objections to Tenant, with
reasonable specificity as to such objections, within three (3) years after the
giving of such Statement. Should Landlord so request, Tenant shall furnish
Landlord with true copies of sales and use tax returns filed with the Florida
Department of Revenue (or its successor) by Tenant and by its subtenants,
concessionaires and other persons or entities whose revenues are included in
Gross Revenues.
(ii) If, upon any examination by Landlord or its
representatives of the books or records of Tenant or any other person or entity
referred to in this Article 6, an error shall be revealed which results in there
being due to Landlord additional Percentage Rent of any nature, all Percentage
Rent calculations prior to the date such discovery is made shall be reviewed
(whether or not such Percentage Rent has been audited pursuant to this
paragraph) and the amount of any overpayments or underpayments of Percentage
Rent which may be disclosed by such review, together with interest accrued
thereon from the date on which such underpayment or overpayment was made until
the amount thereof is paid at the rates set forth above in the case of an
underpayment, shall be paid by Tenant to Landlord upon demand, or, in the case
of any overpayment, be credited to the next installment or installments of Rent
falling due (or, if this Lease shall have terminated other than by reason of
Tenant's default, be repaid by Landlord to Tenant). If such error results in
there being due to Landlord additional Percentage Rent for any Hotel Year in any
amount as a result of an intentional misrepresentation or omission, or in an
amount equal to or exceeding five percent (5%) of the Percentage Rent
theretofore paid by Tenant in respect of such Hotel Year as to any other error,
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then all actual costs of such examination incurred in good faith by Landlord
shall also be paid by Tenant to Landlord upon demand.
(iii) All payments of Rent shall be made to the
Landlord at the address for Notices to the Landlord set forth hereinbelow, or to
such other mailing address as Landlord may from time to time designate by notice
to Tenant.
(iv) It is the intention of the parties that any and
all rents reserved by this Article shall be net rents, and Landlord shall
receive the same free from all costs, charges, expenses and damages, and in
addition to all other amounts that by the provisions of this Lease are made
expressly, although in general terms, payable by Tenant. All Rent and other
payments due to Landlord under this Lease shall be free from all claims, demands
or set-offs of any nature whatsoever which Tenant may have or allege against
Landlord (other than such credits for overpayment of Percentage Rent as are
expressly provided for in this Article 6 or any other credits or offsets as are
specifically provided for elsewhere under this Lease) and all such payments
shall, upon receipt by Landlord, be the absolute and sole property of the
Landlord.
(v) All payments due under this Lease shall be made in
current legal tender of the United States as the same is by law constituted at
the time of such payment. Any extension, indulgence or change by Landlord in the
mode or time of payment of Rent or any other amount payable hereunder on any
occasion shall not be construed as a waiver of any provision of this Lease, or
as requiring or granting a similar extension, indulgence or change by Landlord
upon any subsequent occasion.
(vi) If and to the extent that the amount of Base Rent
or Percentage Rent should change during any applicable payment period, whether
as a result of the occurrence of the Base Rent Increase Date, the Annual
Escalator, or of changes in the Percentage Rent Percentage, or otherwise, the
amount of the Base Rent or Percentage Rent shall change and be prorated
effectively as of the date of any such change and the applicable payment amount
adjusted accordingly as of the next applicable payment date.
(vii) The obligation to pay all Rent reserved herein
shall survive the expiration or termination of this Lease. Landlord's obligation
to repay to Tenant overpayments of Percentage Rent as expressly provided for in
this Article 6 shall also survive the expiration or termination of this Lease,
unless such termination is by reason of the breach or default of Tenant.
(viii) Whenever the terms "subtenant" or
"concessionaire" are used in this Article they shall include Tenant and any and
all subtenants, concessionaires and licensees whether they receive their rights
in respect of the Demised Premises and/or the Buildings directly from Tenant or
indirectly through another subtenant or licensee.
(ix) Except as may otherwise be provided in this Lease,
Rent shall be prorated as of the expiration of the Term.
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(x) Except as otherwise expressly provided in this
Article 6, in the event that any dispute should arise between Landlord and
Tenant in respect of the application of the terms and provisions of this Article
relating to the calculation and payment of Percentage Rent (other than those
contained in Paragraph 6.(c)(i) above) and/or in respect of any of the
calculations, statements or forecasts made or prepared pursuant thereto and/or
in respect of either party's compliance with such terms and conditions, either
party to this Lease may give the other notice of such dispute (a "Percentage
Rent Dispute Notice") setting forth the subject of such dispute and a brief
description of such party's contentions with respect thereto. If such dispute is
not resolved to the mutual satisfaction of both parties within twenty (20) days
after delivery of the Percentage Rent Dispute Notice relating thereto, either
party shall have the right to submit such dispute to arbitration as provided for
in Article 49 of Lease by serving upon the other party an Arbitration Notice in
accordance with said Article 49, whereupon the provisions of said Article 49
shall apply. The arbitrators appointed pursuant to Article 49 shall resolve such
dispute by applying the terms and provisions of this Article, and their decision
shall specify measures or action which Landlord and/or Tenant must take to
comply with such terms and provisions and shall order Landlord and/or Tenant to
take such measures or action.
(h) Confidentiality Provisions. All Confidential
Information received by one party to this Lease from the other party shall be
kept confidential and shall not, without the prior written consent of the
disclosing party, be disclosed or used in any way by the receiving party, its
agents, representatives, or employees in any manner whatsoever, in whole or in
part, to any person who is not a party to this Lease, unless legally compelled
to do so by proper legal process. This provision shall be binding upon the
parties hereto, their respective successors and assigns and all representatives,
agents, and employees thereof. For purposes hereof, "Confidential Information"
shall mean, collectively, any information relating to the business affairs,
operations or financial conditions of the parties hereto made available by a
party hereto, pursuant to the terms of this Lease, or any other agreements
entered into in connection herewith, including, without limitation, all
financial statements, reports, construction reports, notes, and other data, all
plans and specifications for the Improvements, any advertising, promotion or
marketing plans or procedures, and such other data or information related to the
development and construction of the Improvements and/or the operation of the
Convention Hotel pursuant to the terms of this Lease. Notwithstanding the
foregoing, the Confidential Information shall not include any information which
is or becomes:
(i) generally available to the public, other than as a
result of a disclosure in violation of this provision; or
(ii) available to the receiving party on a
non-confidential basis from a source other than the delivering party which
source is not known or reasonably believed by the receiving party to be
prohibited from disclosing such information to the receiving party by a legal,
contractual, or fiduciary obligation.
In the event that a party hereto which receives Confidential Information becomes
legally compelled to disclose such Confidential Information, the receiving party
shall provide the
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disclosing party with prompt notice so that the disclosing party may seek a
protective order or other appropriate remedy and/or waive compliance with the
provisions of this section.
7. Taxes and Assessments. (a) Subject to apportionment at the beginning and
the end of the Term of this Lease, the Tenant shall bear, pay and discharge, not
later than the last day on which payment may be made without penalty or
interest, all taxes (including any sales and use taxes on rents or that are
otherwise by law imposed on and payable by the Tenant or Landlord in connection
with this Lease, the Demised Premises and all related agreements), assessments
(including special assessments), water and sewer rents, rates and charges,
public and private utility charges, excises, levies, license and permit and
impact fees and other governmental impositions and charges of every kind and
nature whatsoever, general and special, extraordinary as well as ordinary, seen
and unforeseen, and each and every installment thereof which shall or may during
or in respect of the Term be charged, laid, levied, assessed, imposed, become
due and payable or liens upon, or arise in connection with the use, occupancy or
possession of, or grow due or payable out of or for, the Land or any part
thereof, the Buildings or any part thereof, any items of personal property, or
such franchises as may be appurtenant to the Land, Buildings or Demised
Premises, and all taxes charged, laid, levied, assessed or imposed in lieu of or
in addition to the foregoing under or by virtue of all present or future laws,
ordinances, requirements, orders, directions, rules or regulations of federal,
state, county and municipal governments and of all other governmental
authorities whatsoever (each individually a "Tax" and collectively, the
"Taxes"). To the extent that the same may be permitted by law and shall be
permitted by each Permitted Mortgage, the Tenant shall have the right to apply
for the conversion of any special assessment for local improvements in order to
cause the same to be payable in installments and, upon such conversion, shall be
obligated to pay and discharge punctually only such of said installments as
shall become due and payable during or in respect of the Term. The Tenant shall
also pay and discharge punctually all installments due during or in respect of
the Term with respect to special assessments imposed prior to the commencement
of the Term. The Tenant shall furnish Landlord with satisfactory evidence of the
payment of any Tax promptly after the Tenant receives receipts therefor or
within thirty (30) days of any written request therefor by Landlord. Landlord
shall, promptly after the execution hereof, make application to the appropriate
taxing authorities for a separate assessment of the Land together with any
Buildings located thereon, so that the Taxes shall be billed directly to the
Tenant. Until the Land is separately assessed, Landlord shall pay all of the
Taxes (exclusive of any Taxes on rent or any personal property Taxes) on the
Land in the tax lot of which the Demised Premises are a part, and Tenant will
pay to Landlord that portion of such Taxes as is equitably apportioned to the
Demised Premises and the Buildings.
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(b) The Tenant shall have the right to contest or review, by legal
proceedings or in such other manner as it may deem suitable (which, if
instituted, shall be conducted by the Tenant at its own expense and free of any
expense to Landlord), and in the name of Landlord if necessary, the amount of
any assessed valuation or rate in respect of any Taxes or the validity of any
Taxes enacted after the date of this Lease. The Tenant may pay under protest or
defer payment of a contested item to the extent permitted by law provided that
in the case of such a deferral of payment such contest does not subject Landlord
to criminal liability, and that prior to the institution of any such
proceedings, the Tenant shall furnish to Landlord and to any Permitted Leasehold
Mortgagee if so required by the terms of its Permitted Mortgage: (i) an
indemnity from a party with a net worth reasonably acceptable to Landlord and
such mortgagee indemnifying Landlord against all losses, costs, damages and
expenses including, without limitation, reasonable attorneys' fees and
disbursements incurred by reason of such contest; or (ii) a surety company bond,
cash deposit or other security reasonably satisfactory to Landlord and such
mortgagee, sufficient to cover the amount of the contested item or items and
interest and penalties covering the period which such proceedings may be
expected to take, securing payment of such contested items, interest, penalties
and all costs in connection therewith. Notwithstanding the furnishing of any
such indemnity, bond or security (other than a cash deposit), if the Demised
Premises or the Buildings or any part of either shall at any time be in imminent
danger of being sold, forfeited or otherwise lost, then the Tenant shall
promptly pay such contested item or items; provided, however, that if the Tenant
shall have made a cash deposit, then Landlord or such Permitted Leasehold
Mortgagee, as the case may be, shall thereupon pay the contested item or items
out of the cash deposit, and any balance of the cash deposit remaining after the
payment or cancellation thereof shall be repaid to the Tenant without interest.
The legal proceedings herein referred to shall include appropriate proceedings
to review tax assessments, appeals from orders therein and appeals from any
judgments, decrees or orders, but all such proceedings shall be commenced as
soon as practicable after the imposition or assessment of any contested item and
shall be prosecuted to final adjudication with dispatch; except as specifically
permitted by this paragraph, the Tenant shall have no right to contest or review
any Tax. Any refunds recovered by the Tenant may be retained by and shall be the
property of the Tenant except that such refunds (net of the costs of collection)
shall belong to Landlord if and to the extent they are in respect of a period
prior to the commencement of the Term.
(c) Landlord shall not be required to join in any proceedings referred
to in paragraph (b) above unless the provisions of any law or the requirements
of any governmental authority at the time in effect shall require that such
proceedings be brought by or in the name of Landlord, in which event Landlord
shall join in such proceedings or permit the same to be brought in its name.
Landlord shall not be subjected to any liability for the payment of any costs or
expenses in connection with any such proceedings, and the Tenant shall indemnify
and save harmless Landlord from any such costs and expenses, including
reasonable attorneys' fees and disbursements.
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(d) Notwithstanding any provision of this Lease to the contrary, the
Tenant shall not pay any of Landlord's franchise, corporate, estate,
inheritance, succession, capital levy or capital stock taxes, or any of
Landlord's income, profits, gross receipts taxes or any other taxes (except any
sales and use taxes that are by law imposed on and payable by the Tenant or
Landlord in connection with the Demised Premises and all related agreements)
that are imposed solely because of the nature of the business entity of
Landlord; provided, however, that if any tax, excise or fee measured by or
payable in respect of amounts payable to Landlord relating to the Demised
Premises shall be levied against Landlord in lieu of, in substitution for, or
supplemental to, the Taxes in effect at the date of the execution of this Lease,
such tax, excise or fee payable in respect of amounts payable to Landlord
relating to the Demised Premises shall constitute a Tax within the meaning of
that term as used in this Lease, but the amount thereof shall be measured as if
the amounts payable to Landlord relating to the Demised Premises were the sole
taxable income, and the Demised Premises and the Buildings were the sole asset,
of Landlord.
(e) Notwithstanding that the Base Rent and Percentage Rent otherwise
shall be payable to the Landlord hereunder without offset or reduction except as
specifically provided for herein, the Landlord acknowledges and agrees that the
Tenant shall be entitled to deduct from and offset against all Rent and any
other amounts payable to the Landlord hereunder the amount of any Special
Assessments or similar capital charges under the recorded Declaration of
Covenants, Conditions and Restrictions for Xentury City dated July 11, 1994 and
recorded on July 15, 1994 in Official Records Book 1201, Page 607, Public
Records of Osceola County, Florida, as the same may be amended from time to time
with the written consent of the original Declarant thereunder or the Landlord
(the "Declaration"), or by the Xentury City CDD, other than and not including,
however, "Normal Assessments," as defined below. For purposes of the foregoing,
"Normal Assessments" shall be defined as assessments attributable to the
operation, administration, maintenance, repair and replacement (but not the
initial construction of) those items of infrastructure, or project
administration under zoning requirements (including, without limitation,
landscaping, drainage, sewer, wetlands, potable and irrigation water, roads,
sidewalks and utilities) directly benefitting or servicing, or intended to serve
or benefit, the Land or more than one site or parcel of land within the Xentury
City Development Project included within the lands developed under the DRI
Development Order for Xentury City (and referred to as the "Xenorida DRI
Project") under the Amendment to the Little England Development Order dated
August 23, 1994 and recorded on September 9, 1994, in Official Records Book
1211, Page 17, and as amended by the Second Amendment thereto dated December 12,
1994 and recorded on January 27, 1995, in Official Records Book 1236, Page 1947,
both in the Public Records of Osceola County, Florida, as further amended from
time to time (herein the "Xentury City DRI Development Order"), or adjacent
lands in Orange County owned by Landlord or its Affiliates and developed and
operated as part of the Xentury City Development Project (and subjected to the
Declaration), and which meet the following criteria:
(i) They are owned by or are the responsibility of the Xentury City
CDD or the Xentury City Property Owners' Association as the "Association" under
the Declaration (the "Xentury City POA") or their successors; and
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(ii) Such items of infrastructure are commonly found in first class
resorts or first class mixed-use developments in the Central Florida area; or
such items of infrastructure or project administration are required by the
zoning and land use approvals applicable to all of the Xentury City Development
Project land such as the cost of a "Ride Share Coordinator" as required in the
Xentury City DRI Development Order.
So long as the Landlord or Landlord's Affiliates continue to have the power to
do so, Tenant shall be entitled to appoint or have approved or elected as the
case may be one member to each of the Board of Directors of the Xentury City POA
and the Board of Supervisors of the Xentury City CDD. Similarly, so long as the
Landlord or Landlord's Affiliates have the power to do so, Tenant shall be
entitled to contract with the Xentury City POA and/or Xentury City CDD for
Tenant to maintain Xentury City Development Project common areas and
improvements located within and immediately adjacent to the Demised Premises in
return for payment to Tenant by the Xentury City POA or Xentury City CDD, as
applicable, of the amounts which normally would otherwise be payable for such
maintenance, provided only that the Tenant fully and properly fulfills and has
fulfilled its obligations to so maintain Xentury City Development Project common
areas within or adjacent to the Demised Premises.
8. Insurance. (a) During the Term, the Tenant shall:
(i) keep the Buildings and the Furnishings, including all
alterations, changes, additions and replacements thereto, insured against loss
or damage caused by: (1) fire, windstorm and perils generally included under
extended coverage; (2) sprinkler leakage; (3) vandalism and malicious mischief;
and (4) boilers and machinery, all in an amount which reasonably assures there
will be sufficient proceeds to replace the Buildings (excluding excavation and
foundation costs and costs of underground tanks, conduits, pipes, pilings and
other similar underground items) and the Furnishings in the event of a loss
against which such insurance is issued. All insurance required hereunder, and
all other insurance maintained by the Tenant on the Buildings and the furnishing
in excess of or in addition to that required hereunder, shall include the
Tenant, as named insured (and shall name Landlord and the Tenant as loss payees
but may provide that any loss shall be adjusted only with the Tenant, subject to
the rights of any Permitted Leasehold Mortgagee, unless all or a portion of the
insurance proceeds on account of the loss are payable to Landlord pursuant to
the provisions of this Lease), and shall include: the interest of each Permitted
Leasehold Mortgagee and each Fee Mortgagee (as hereinafter defined), to then be
held for the benefit of the parties hereto and such mortgagees and applied as in
this Lease provided); and in the case of insurance on the Furnishings, the
interest of any person who is the holder of a security interest encumbering any
of the Furnishings or the lessor or title holder of any of the Furnishings, as
such person's interest may appear (in which event the loss to the extent of such
person's security interest on or other interests in the Furnishings will be
payable only to such person or the First Permitted Mortgagee). The Tenant and
the Landlord shall negotiate in good faith upon the request of Landlord at not
greater than three (3) year intervals (and in no event before three (3) years
after the Completion Date), to determine a mutually-acceptable insurance
purposes valuation of the Buildings and the Furnishings and adjust the amount of
the foregoing insurance, if necessary, to limits which will then satisfy the
requirements set forth above. Notwithstanding the provisions of the preceding
sentence, immediately after completion of any additional
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Tenant's Work (except non-structural repair work performed pursuant to the
provisions of Article 11 hereof), the Tenant and Landlord shall also negotiate
in good faith at Landlord's request, to determine a new insurance purposes
valuation of the Buildings and adjust the amount of the foregoing insurance, if
necessary, to limits which will then satisfy the requirements set forth above
(if for any reason the parties can't in good faith agree on an insurance
purposes valuation as provided for hereunder, or if Tenant's insurer requires an
appraisal to issue required insurance hereunder, then the Tenant shall obtain
and provide an acceptable appraisal within ninety (90) days after the request of
Landlord based upon a mutually-selected appraiser or if the parties can't agree
an appraiser the average of the two closest appraisal value under a 3-appraisal
whereby Landlord and Tenant each provide an appraisal and pay for a third
appraisal from an appraiser selected by the two appraisers selected by Landlord
and Tenant.
(ii) provide and keep in force general liability insurance
(including blanket contractual, commercial operations, broad form property
damage, Explosion, Collapse and Underground Hazard) and automobile insurance
against liability for personal injury, death or property damage having a
combined single limit of not less than Fifty Million Dollars ($50,000,000) with
respect to injuries or damages in any one occurrence or accident provided. Said
insurance, and any and all other liability insurance maintained by the Tenant in
excess of or in addition to that required hereunder, shall include protection
for, and shall name, Landlord [and, to the extent insurance providing protection
for the following is available, Landlord's managers and affiliates having an
insurable interest in or contractual or common law liability for activities at
the Land (herein collectively referred to as "Landlord's Affiliates")] as an
additional insured under said insurance, the effect of which will insure it
(and, if so available, them) in respect of any and all loss or liability
resulting from personal injury, death or property damage arising or occurring
upon, or in connection with, the Land, the Buildings, the Furnishings or
equipment (including, but not limited to, boilers and elevators) or by reason of
the operation of the Buildings or occupancy of the Demised Premises. All
applicable deductible, coverage and other specified dollar amounts established
under this Article 8, and the stated casualty proceeds deposit dollar figure in
the third line of Paragraph 9.(b) below, shall automatically increase every
three (3) years during the Term based upon increases in the Consumer Price Index
applicable to the Orlando, Florida area, and also at the end of each three (3)
years of the Term, upon Landlord's request, the Tenant shall review with
Landlord the limits of the said policy or policies and, at that time, shall
cause such liability limits to be adjusted if necessary in view of reasonable
exposure anticipated by Tenant in connection with operations at the Demised
Premises over the next ensuing three (3) years; provided, however, that in no
event shall such limits be adjusted lower than the limits stated above (without
taking into account any CPI-based increases for the most recent three-year
period.
(iii) provide and keep in force workers' compensation insurance
covering all persons employed in connection with the performance of work of any
nature in or about the Land, in a form prescribed by the laws of the State of
Florida, and employers' liability insurance in an amount of at least One Million
Dollars ($1,000,000).
(iv) provide and keep in force, prior to the commencement of, and
during, any construction on the Land, and as often as the Tenant may construct,
replace,
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reconstruct, restore or make a substantial alteration to, any improvement
thereon; property insurance in the so-called "All Risk Contract Form," on a
"completed value basis," in accordance with the requirements of this Article.
(v) Intentionally Omitted.
(vi) procure policies for all such insurance for periods of not
less than one (1) year and renewals thereof from time to time at least ten (10)
days prior to the expiration thereof; and
(vii) perform and satisfy the requirements of such insurance
carriers as the Tenant may from time to time select hereunder so that Tenant's
selected Qualifying Insurers shall at all times be willing to write and continue
such insurance.
(b) All insurance which the Tenant is required to provide under this
Lease shall be effected under valid, enforceable policies written, in form
reasonably acceptable to Landlord, by insurers of recognized responsibility,
which have been approved by Landlord, which approval shall not be unreasonably
withheld or delayed [insurers having a general policy holders rating of no less
than A/Category "X" or higher in Best's' rating guide (or equivalent if Best's
ratings are ever no longer available) shall be deemed to be "Qualifying
Insurers" not requiring Landlord's approval hereunder].
(c) All insurance which the Tenant is required to maintain under this
Lease shall, to the extent obtainable, contain clauses or endorsements to the
effect that:
(i) such insurance shall not be canceled without at least thirty
(30) days' prior written notice to Landlord, or modified in any way to
materially reduce the coverage afforded thereunder below the insurance required
hereunder without at least ten (10) days' prior written notice to Landlord;
(ii) Landlord shall not be liable for any premiums thereon or
subject to any assessments thereunder;
(iii) the coverage afforded thereby shall not be affected by any
work in or about the Buildings or the Land; and
(iv) the insurer waives its rights of subrogation except with
respect to workers' compensation insurance and any gross negligence of Landlord.
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(d) Nothing contained in this Article 8 shall prohibit the Tenant
from obtaining insurance of the nature and in the amounts provided for in this
Lease under a blanket policy or policies covering the Demised Premises and other
properties owned or operated by the Tenant, provided, however, that any such
blanket policy shall specify therein, or the Tenant shall furnish Landlord with
a written statement from the insurer or its agent specifying, the amount of the
total insurance allocated to the Demised Premises and the Buildings, the
Furnishings and the equipment thereon.
(e) The Tenant shall pay the premiums for all insurance policies
which the Tenant is obligated to carry under this Article and, at least five (5)
days prior to the date any such insurance must be in effect, deliver to Landlord
signed certificates thereof naming Landlord (and where applicable Landlord's
Affiliates having insurable interests as provided above) as insureds as required
by the provisions of this Article 8, specifying all coverages, exclusions and
endorsements, specifically stating whether the provisions required by paragraph
c. above have been obtained, and otherwise evidencing that all policies of
insurance required under this Lease (and where applicable all renewals thereof)
are in full force and effect. The Tenant shall also deliver to Landlord copies
of all policies, or certificates thereof, of insurance covering the Buildings
and the Furnishings and of all policies of liability insurance maintained by the
Tenant and providing coverage for the Project and the Tenant's activities
relevant thereto in excess of, or in addition to, the insurance required by this
Article.
(f) Any insurance maintained by the Tenant may have deductible
provisions, but the deductible amounts shall not exceed One Hundred Thousand
Dollars ($100,000) for each type of insurance unless the Tenant shall
demonstrate that it or its General Partners have adequate net worth to
reasonably support, and the Landlord shall have consented in writing to, a
higher deductible amount.
(g) Each party will cooperate with the other party in connection with
the collection of any insurance proceeds that may be payable in the event of
loss and execute and deliver to the insurers such proofs of loss and other
documents required for the recovery of any such insurance proceeds.
(h) Notwithstanding the provisions of this Article, Landlord has
approved the insurance, if any, specified on Exhibit D hereto as being in
compliance with the requirements of this Lease on the date hereof, but such
approval shall apply only to the Opryland Hotel - Florida Limited Partnership as
the initial GEC-related Tenant and any permitted successor Tenant which is
controlled by GEC and in which GEC has a significant direct or indirect
ownership interest.
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9. Casualty. (a) If, during the Term, the Buildings shall be destroyed or
damaged in whole or in part by fire or other cause, the Tenant shall give
Landlord immediate written notice thereof and, subject to the provisions of
paragraph (b) of this Article, shall repair, reconstruct or replace, in
accordance with the provisions of Article 2 hereof, the Buildings, or the
portion thereof so destroyed or damaged (whichever is reasonably required),
and/or restore the Furnishings (in compliance with Article 2 hereof), as nearly
as practicable to the function and character thereof existing immediately prior
to such occurrence and as necessary to maintain the Operating Standards. All the
work related to the repair, reconstruction and restoration of the Buildings
shall be started as soon as practicable and diligently completed, at the
Tenant's sole cost and expense (to which the insurance proceeds will be applied
as hereinafter provided), and paid for as promptly as the Tenant's exercise of
due diligence makes practicable. The Tenant shall, however, immediately take
such action as is necessary to assure that neither the Buildings nor the Land,
or any conditions thereat, constitutes a nuisance, otherwise presents a health
or safety hazard, such the work to be accomplished as the Tenant's sole cost and
expense (but the Tenant shall be reimbursed out of the insurance proceeds, such
right of reimbursement to survive the termination of this Lease). Subject to the
rights of a Permitted Leasehold Mortgagee, except as otherwise specifically
provided herein, insurance proceeds shall be paid to the Tenant to be
distributed to pay the cost of rebuilding the Project.
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(b) In the event of a casualty resulting in a loss payment for the
Buildings in an amount greater than three percent (3%) of the total insurable
value of the affected improvements (or $250,000 if larger), the proceeds of all
insurance policies maintained by the Tenant shall be deposited with the First
Permitted Leasehold Mortgagee [or if there be none, then (subject to paragraph e
of this Article) deposited in an escrow account in a bank approved by Landlord
and the Tenant or, failing mutual approval, in the Lending Institution having an
office in the City of Orlando which has the highest net worth of any Lending
Institution in such cities or in another federally-insured commercial bank
selected by Tenant with a greater net worth], and shall be used by the Tenant
for the repair, reconstruction or restoration of the Buildings and Furnishings.
Such proceeds shall be disbursed periodically pursuant to the terms of this
Lease by the First Permitted Leasehold Mortgagee or the escrowee, as the case
may be, upon certification of the architect or engineer having supervision of
the Work that such amounts are the amounts paid or payable for the repair,
reconstruction or restoration (subject to reasonable retentions if required
under the First Permitted Mortgage, as hereinafter defined). As a condition to
such disbursement, the Tenant shall, at the time of such deposit with the First
Permitted Leasehold Mortgagee or establishment of such escrow account, and from
time to time thereafter until said Work shall have been completed and paid for,
furnish Landlord and the First Permitted Leasehold Mortgagee with adequate
evidence that at all times the undisbursed portion of the funds, together with
any funds made available by the Tenant, is sufficient to pay for the repair,
reconstruction or restoration in its entirety. The Tenant shall obtain, and make
available to Landlord and the First Permitted Leasehold Mortgagee, receipted
bills and, upon completion of said Work, full and final waivers of lien. If the
First Permitted Leasehold Mortgagee elects to do any of the work due to any
failure by the Tenant to do so in a satisfactory manner, the First Permitted
Leasehold Mortgagee may use the proceeds to pay for such Work. If any funds
remain after said Work is fully paid for, the remaining funds will be paid over
to the Tenant (subject to the rights of the Permitted Leasehold Mortgagees in
the order of their priority). In the event of a casualty resulting in a loss
payment for the Building in an amount equal to, or less than, three percent (3%)
of the total coverage of all insurance applicable to a loss of such nature, the
proceeds shall be paid directly to the Tenant, unless otherwise provided by the
terms of the First Permitted Mortgage, and shall be applied towards repair,
reconstruction and restoration (and if any funds remain after said Work is fully
paid for, the remaining funds will be kept by the Tenant or the Permitted
Leasehold Mortgagees).
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(c) Notwithstanding (a) above, and subject to the rights of any
Permitted Leasehold Mortgagee, if, at any time during the last ten (10) years of
the Initial Term or any Extension Term then in effect, the Buildings shall be
destroyed or so damaged to an extent greater than the Applicable Percentage, as
defined below, of the full insurable value of the Convention Hotel, the Tenant
may (but only with the consent of all Permitted Leasehold Mortgagees) elect to
terminate this Lease by delivering written notice to that effect in recordable
form given to Landlord not later than sixty (60) days after the occurrence of
the casualty, whereupon this Lease shall cease and terminate as of the effective
date of such termination and the fee simple ownership of any and all interests
in the Land, Buildings, Furnishings and all other elements of the Convention
Hotel shall revert to and automatically vest in Landlord in accordance with the
provisions of Section 17 hereof, provided however, that such election shall not
be effective unless and until (i) all Permitted Leasehold Mortgagees and any
other entity having any claim to such insurance proceeds have released all
rights to all insurance proceeds; (ii) the Tenant shall pay or assign to
Landlord all net proceeds (after payment of any remaining principal amounts
scheduled as of the date of any such termination to be repaid to any Permitted
Leasehold Mortgagee for the balance of the then-current Term for borrowed funds
used to finance, or to refinance the unpaid principal balance of, the costs of
the construction of or capital improvements to the Buildings) received or
receivable under all policies of insurance covering the Buildings attributable
to the Landlord's interest in the Land; (iii) the Tenant shall pay to Landlord
all Rent and all other payments due from the Tenant with respect to the period
up to and including the effective date of termination; and (iv) if such damage
or destruction shall not have been covered by collectible insurance as a result
of the insurance deductibles and/or self-insurance maintained by Tenant or the
failure of the Tenant to maintain insurance in the limits required under this
Lease, the Tenant shall pay to Landlord an amount equal to such insurance
deductibles, self-insurance amounts and the excess of the amount of insurance
proceeds that would have been collectible in connection with such damage if the
Tenant had maintained insurance in accordance with the requirements of Article 8
over the amount of insurance proceeds, if any, actually collectible in
connection with such damage. If the Tenant does not elect to terminate this
Lease as aforesaid, the Term shall be extended as provided in paragraph (g) of
this Article 9, and the Tenant shall promptly comply with the provisions of
paragraph (a) of this Article 9. For purposes of the foregoing the term
"Applicable Percentage" shall mean and be defined as: (x) Fifty Percent (50%) or
more during the Tenth through Sixth Lease Years prior to the end of the
then-current Term, and (y) Ten Percent (10%) or more during or following the
Fifth Lease Year prior to the end of the Term.
(d) Nothing contained herein shall relieve the Tenant of its obligations
under this Article if the destruction or damage is not covered, either in whole
or in part, by insurance, or if the net insurance proceeds shall be insufficient
to pay the entire cost of the repair, restoration or replacement; and the
Tenant's liability under this Article shall survive any termination of this
Lease other than a termination pursuant to paragraph c. of this Article.
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(e) Notwithstanding anything to the contrary contained in this Article,
if at any time there is no Permitted Mortgage in existence, then during such
time the First Fee Mortgagee shall be entitled to exercise the rights granted in
this Article to the First Permitted Leasehold Mortgagee, provided that the First
Fee Mortgagee is any commercial, national or savings bank, savings and loan
association, trust company, insurance company or any other national or
established international lender-mortgagee (such as an eleemosynary institution
or foundation, publicly held corporation or its pension funds, real estate
investment trust, pension fund or the like), that such Fee Mortgagee shall have
agreed in writing to make any proceeds received by it available for the purposes
and in the manner provided in this Article, and that such Fee Mortgagee shall in
fact apply such proceeds in the manner set forth in this Article. It is
understood that any entity meeting the foregoing requirements of this paragraph
e. which makes or holds a mortgage in the capacity of agent or trustee for one
or more parties who have interests in the mortgage, regardless of whether or not
such parties themselves meet such requirements, shall also be entitled to
exercise said rights of a Permitted Leasehold Mortgagee in the circumstances
contemplated by this paragraph e.
(f) Any provision of this Lease (including, without limitation, those
contained in this Article and in Article 20) to the contrary notwithstanding, if
this Lease is terminated by reason of the occurrence of an Event of Default,
unless a Permitted Leasehold Mortgagee complies with the restoration obligations
of the Tenant under this Article and Article 20 of this Lease or the
corresponding provisions of any Novation Ground Lease granted pursuant to
Article 16 hereof (other than any obligations to perform emergency repairs), all
net insurance proceeds and/or condemnation awards (after payment of the
principal amounts scheduled as of the date of any such termination to be repaid
to any Permitted Leasehold Mortgagee for the balance of the current Term for
borrowed funds used to finance or refinance the construction of or capital
improvements to the Buildings) shall be turned over to Landlord, on demand, for
application to restoration of the Buildings or as Landlord otherwise directs.
(g) In the event of the occurrence of (i) a taking by eminent domain of
a portion of the Buildings (as hereinafter defined) and/or the Land, if this
Lease is not terminated pursuant to the provisions of Article 20, or (ii) a fire
or other casualty, if this Lease has not been terminated pursuant to this
Article 9, then and in either such event the Term shall be extended for a number
of days equal to the cumulative number of days that each hotel guest room was
unavailable due to time spent for restoration, building or repairing of the
Buildings divided by the total number of hotel guest rooms in the Convention
Hotel as of the date of the taking or casualty, but the operation of this
sentence shall in no event extend the Term for a cumulative period in excess of
five (5) years; when such restoration, rebuilding or repairing is completed, the
parties shall execute, in recordable form, a certificate stating the expiration
date of the Term as extended pursuant to this paragraph.
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10. Alterations. (a) The Tenant may, at any time or times during the Term,
at its own cost and expense, make alterations, changes and additions to the
Buildings without Landlord's consent provided that:
(i) the same shall not weaken or impair the structural strength of
the Buildings, materially impair the use of any of the service or other
facilities, or fundamentally affect the character or suitability of the
Buildings for first class destination hotel and convention center purposes
consistent with the Operating Standards;
(ii) no structural or substantial portion of the Buildings shall be
demolished or removed unless replaced with functionally equivalent improvements
(either as new construction or within other existing Convention Hotel
improvements) of equal or greater quality consistent with the Operating Standard
and the number of hotel guest rooms and amount of convention and meeting space
shall not be reduced in any way which reasonably could be anticipated to
materially and adversely affect the overall value of and revenue to be generated
from and by the Convention Hotel; and
(iii) to the extent the cost of any such repair or replacement is
estimated to exceed One Million Five Hundred Thousand and No/100 Dollars
($1,500,000), the Tenant shall provide the Landlord with copies of plans and
specifications for such work (provided however that this provision shall not be
construed to require Tenant to generate or obtain any such plans or
specifications which are not required by law or which Tenant otherwise
reasonably determines not to be necessary) and copies of all applicable
governmental permits and approvals if not otherwise previously provided pursuant
to the terms of this Lease.
(b) Except as permitted under Section 9(a) above, the Tenant shall not
have the right to make any other material structural alterations to the
Buildings, or material alterations to the Land, without the Landlord's prior
written consent, which shall not unreasonably be withheld, conditioned or
delayed.
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11. Repairs; Maintenance. (a) The Tenant shall, at all times during the
Term and at its own cost and expense (whether or not insurance proceeds are
available for such purpose), keep and maintain the Buildings in good repair and
in safe order and condition, shall make all repairs thereto, both inside and
outside, structural and non-structural, extraordinary and ordinary, howsoever
the necessity or desirability for repairs may occur, as necessary for the normal
operation of the Project as a first class destination hotel and convention
center consistent with the Operating Standards, and shall not commit, suffer or
knowingly permit waste or injury to the Buildings or the Land. The Tenant shall
also, at its own cost and expense, keep and maintain in good repair the
sidewalks on, or immediately adjacent to, the Land. The Tenant shall also, at
its own cost and expense, keep, replace and maintain the Furnishings in good
repair and in safe order and condition, howsoever the necessity or desirability
for repairs may occur, as necessary for the normal operation of the Project as a
first class destination hotel and convention center consistent with the
Operating Standards. The Tenant may at any time and from time to time remove and
dispose of any of the Furnishings which have become obsolete or unfit for use or
which are no longer useful in the operation of the hotel business conducted by
the Tenant on the Land; provided, however, that the Furnishings so disposed of
shall be promptly replaced with other Furnishings not necessarily of the same
character, but of at least equal usefulness and quality as, those disposed of,
and in any event in accordance with, and in compliance with the Operating
Standards. Landlord shall not be required to make any alterations,
reconstructions, replacements, changes, additions, improvements or repairs
during the Term.
(b) Nothing contained in the foregoing paragraph shall be deemed to
require the Tenant to make repairs to the Buildings or the Furnishings as a
result of ordinary wear and tear so long as the same are maintained at all times
in a manner consistent with operation of a first class destination hotel and
convention center and in accordance with the Operating Standards, taking into
account the age of the Convention Hotel (i.e., the Convention Hotel needn't
always be maintained in an "as new" condition).
(c) The Tenant shall at all times maintain the Buildings, including the
grounds and the landscaping, in a manner consistent with operation of a first
class destination hotel and convention center consistent with the Operating
Standards, and shall have no exterior signage in any Public Area except that
which (i) is shown in the approved Plans, (ii) is permitted by applicable law
and otherwise approved by Landlord, which approval shall not be unreasonably
withheld or delayed.
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(d) In consideration of Tenant's obligation to properly maintain the
Convention Hotel at all times throughout the Term in accordance and consistent
with the Operating Standards and the provisions of this Article 11, and to
re-deliver possession of the Demised Premises and deliver possession of the
Improvements and Furnishings to Landlord in accordance with the requirements of
Article 17 hereof upon expiration of the Term or any earlier termination hereof
(the "End of Term"), the Landlord agrees to pay to the Tenant an amount equal to
the net book value as of the End of Term, as determined below, of all Applicable
Capital Expenditures (the "Term-end Payment"). The Term-end Payment shall be the
sum of (A) the lesser of (x) the sum of all Applicable Capital Expenditures
(defined as the sum of all Maintenance Capital Expenditures and all Approved
Capital Expenditures), less Accumulated Depreciation in respect thereof (and
proper write-offs for obsolete or replaced assets), for the final ten (10) years
of the Term, or (y) eight percent (8%) of the Fair Market Value of the
Convention Hotel including the Furnishings (exclusive of any value attributable
to the Land or the Demised Premises or to lease rights under this Lease which
are expiring) as of the End of Term, plus (B) the Buyout Price of any Additional
Assets under Paragraph 17(e) below. Such Term-end Payment shall be determined
and payable in accordance with the following terms and conditions:
(i) During the eleventh (11th) year before the scheduled end of the
then-current Term, the Landlord and the Tenant will negotiate in good faith in
order to establish (A) the ten-year weighted average, during the immediately
preceding ten (10) Hotel Years (the "Lookback Period"), of the percentage ratio
that the amount of all "Capital Expenditures for Maintenance Purposes" [defined
herein as capital expenditures for ongoing maintenance, repair and replacement
of capital assets within the Convention Hotel, including both Improvements and
Furnishings, with a useful life of no less than three (3) years] during the
Lookback Period (excluding amounts expended during the Lookback Period for
"deferred maintenance" which is maintenance to correct any condition of
non-compliance with Articles 11 or 14 hereof as of the beginning of the Lookback
Period, and including only a 10-year portion on a straight-line amortization
basis of capital expenditures with a useful life in excess of 10 years) bears to
total Gross Revenues for the Lookback Period (the "Cap-ex Percentage"); and (B)
a related depreciation schedule (the "Depreciation Schedule") based upon the
useful life [under generally accepted accounting principles approved by the
AICPA or future equivalent ("GAAP")] of the Capital Expenditures for Maintenance
Purposes during such Lookback Period. If the Landlord and the Tenant cannot
agree on a reasonable Cap-ex Percentage and Depreciation Schedule by the end of
the 11th year before the End of Term, or in the event that there is a dispute
regarding the determination of Accumulated Depreciation or proper write-offs, a
Qualified Accounting Arbiter (defined as a Big Five Accounting Firm approved by
the AICPA or future equivalent) will determine the Cap-ex Percentage and
Depreciation Schedule, and settle such disputes as necessary.
(ii) "Maintenance Capital Expenditures" for purposes hereof shall
equal the lesser of (A) the total cumulative sum of all Capital Expenditures for
Maintenance Purposes, as expended in Tenant's sole discretion in order to comply
with applicable provisions of this Lease or otherwise, during the last ten (10)
years of the Term ending on the End of Term ("Final Lease Decade") (in which
event Accumulated Depreciation in respect thereof shall be based upon actual
depreciation allowances in accordance with GAAP), or (B)
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the cumulative sum of the Cap-ex Percentage of Gross Rents for each year of the
Final Lease Decade (in which event Accumulated Depreciation in respect thereof
shall be based upon the Depreciation Schedule).
(iii) "Approved Capital Expenditures" shall include and be defined
as the sum of (A) the amount of any Capital Expenditures for Maintenance
Purposes which Tenant is required by the terms of this Lease to make for the
Improvements or Furnishings during the Final Lease Decade as a result of a major
failure significantly prior to the reasonably anticipated useful life of any
capital asset or reasonable unanticipated casualty not required to be covered by
insurance hereunder, or as a result of a change in applicable laws during the
Final Lease Decade requiring Tenant to make new capital improvements or
alterations to the Improvements, all as approved by Landlord which approval
shall not be unreasonably withheld, to the extent that the amount thereof would
cause the cumulative sum to date of all Capital Expenditures for Maintenance
Purposes during the Final Lease Decade to exceed the cumulative sum of the
Cap-ex Percentage of Gross Revenues for such period, and (B) amounts expended by
Tenant for any type of extraordinary capital improvement expenditure with a
useful life of no less than three (3) years and as approved in writing in
advance by the Landlord, which approval may be withheld by Landlord in its sole
discretion (provided that Landlord's right to withhold Landlord's consent
consistent with the foregoing shall not preclude Tenant from making capital
improvements consistent with other provisions of this Lease, but such capital
expenditures shall not be deemed to be a part of the Applicable Capital
Expenditures used for calculating the Term-end Payment hereunder).
(iv) The foregoing and all calculations under this Paragraph 11(d)
shall be based upon GAAP and other applicable financial accounting standards
approved by the AICPA or future equivalent, as the same may be modified from
time to time generally consistent with current interpretation and construction
of such terms and concepts. Throughout the Final Lease Decade the Tenant shall
provide to Landlord on at least an annual basis a separate report with all
supporting data and calculations in reasonable detail setting forth all capital
expenditures and related depreciation and other information relating to the
Term-end Payment as may reasonably be requested by Landlord.
(v) The Fair Market Value of the Convention Hotel will be determined
at the End of Term based upon a valuation completed by an independent Qualified
Appraiser acceptable to both parties.
(vi) If the Landlord and Tenant can not agree on acceptable
independent Qualified Accounting Arbiter or Qualified Appraiser, the reasonable
costs of whom shall be paid one-half by each party, then the amounts and
information to be determined thereby shall be determined under a multiple
Arbiter/Appraiser method whereby each party shall have the right to select (and
pay all costs of) a qualified Arbiter/Appraiser who in turn selects a third
Arbiter/Appraiser (paid one-half by each party) and the final determination of
any relevant item shall be based upon the average of the determination of the
closest two out of the three Arbiter/Appraisers.
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(vii) The Landlord and Tenant shall negotiate in good faith in
order to agree upon a mutually-satisfactory mechanism for payment of the
Term-end Payment, which may be paid at Landlord's election as a reduction of or
credit against Rent payable by Tenant hereunder, or simultaneously with the End
of Term and subject to offsets for any sum payable by Tenant to Landlord
hereunder, and if no agreement can be reached then the Term-end Payment shall be
due in cash at the End of Term.
12. Assignment and Transfer; Leasing. (a) Subject to the consent and other
rights of Landlord specifically provided for in this Section 12 of this Lease,
the Tenant shall have the right to sell, assign or otherwise transfer the
Demised Premises, any other interests in the Project, and any rights or interest
which the Tenant may have under this Lease, or sublease the Demised Premises or
any interest therein or any other interest which it has in the Project or any
part thereof, or otherwise permit the use thereof by any other entity.
(b) If the Tenant or any successor to the Tenant hereunder is a
corporation that is neither a Lending Institution or a corporation (or a
wholly-owned consolidated reporting subsidiary thereof) whose shares are traded
on a national securities exchange, or if a corporation that is neither a Lending
Institution or a corporation (or a wholly-owned consolidated reporting
subsidiary thereof) whose shares are traded on a national securities exchange is
a general partner of the Tenant or any such successor, then a sale, assignment,
transfer, exchange or other disposition of the stock in such corporation which
results in a change of control, or a merger, consolidation or other combination
of such corporation with another entity which results in a change of control,
shall be deemed an assignment hereunder, it being the specific intent of the
parties hereto that the sale, assignment, transfer, exchange or other
disposition of the stock in a corporation that is either a Lending Institution
or a corporation (or a wholly-owned consolidated reporting subsidiary thereof)
whose shares are traded on a national securities exchange, shall not be an
assignment subject to the provisions of this Section 12 and shall not require
the consent of the Landlord. If the Tenant or its permitted successor hereunder
is a general or limited partnership, then the sale, assignment, transfer,
exchange or other disposition of a general partner's interest or the
substitution of a general partner (or the addition of a general partner which
will be treated as a general partner for the purposes of this Article 12),
except for the addition of a general partner under circumstances where OHI or
another wholly-owned subsidiary of GEC remains a general partner of the Tenant,
shall be deemed an assignment hereunder, it being the specific intent of the
parties hereto that the sale, assignment, transfer, exchange or other
disposition of a general partner's interest or the substitution of a general
partner (or the addition of a general partner which will be treated as a general
partner for the purposes of this Article 12), except for the addition of a
general partner under circumstances where OHI or another wholly-owned subsidiary
of GEC no longer remains a general partner of the Tenant, shall not be an
assignment subject to the provisions of this Section 12 and shall not require
the consent of the Landlord. For purposes of this Lease, a joint venture shall
be deemed to be a partnership and a joint venturer a partner.
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(c) Notwithstanding any other provision of this Article to the
contrary, and provided that the Xentury City CDD accepts any assignment of
interests of the Tenant in relevant portions of the Demised Premises and the
Convention Hotel pursuant to the CDD Project Agreement subject to the terms and
obligations of the Tenant under this Lease, the Hotel Development Agreement and
all ongoing related agreements relating to the Landlordship and operation of the
Convention Hotel (collectively, the "Related Agreements"), the sale of the CDD
Project to the Xentury City CDD pursuant to the CDD Project Agreement shall not
require the consent or approval of Landlord, and the Landlord shall enter into
such agreements as are reasonably required by the Tenant and/or the Xentury City
CDD to protect its ownership interests in the CDD Improvements subject to and
consistent with the terms of this Lease.
(d) Notwithstanding any other provision of this Article to the
contrary, and provided, as to a transfer described in clauses (i), (ii), (iii),
(iv) and (v) below, that the assignee or transferee of Tenant's interest in this
Lease has agreed, in writing in recordable form consistent in all material
respects with the form of Assignment and Assumption of Lease set forth in
Exhibit E attached hereto and by this reference made a part hereof and delivered
to Landlord promptly after execution thereof (herein a "Conforming Assignment
Document"), to be bound by all the terms and conditions of this Lease and to
accept all the duties and obligations of the Tenant under this Lease and under
the Land Development Agreement and Hotel Development Agreement if then still in
effect (collectively, the "Related Agreements"), none of the following events
shall require the consent or approval of Landlord:
(i) a sale, assignment, transfer, exchange or other disposition of
this Lease (A) to a general partner in Tenant which is a wholly-owned (whether
directly or indirectly) and controlled subsidiary of GEC, or (B) to a limited
partnership having as its sole general partner either (x) a wholly-owned
(whether directly or indirectly) and controlled subsidiary of GEC, or (y) a
limited partnership in which a wholly owned and controlled subsidiary of GEC is
the sole general partner, or (C) to a general partnership having as its sole
general partners an entity described in clauses (A) and (B) above and a Lending
Institution, or its wholly-owned and controlled designee, that has a net worth
at least equal to Fifty Percent (50%) of the then-current market value of the
Convention Hotel exclusive of the value of the Land (hereinafter called the "Net
Worth Test");
(ii) a judicial sale of this Lease in a proceeding to foreclose a
Permitted Leasehold Mortgage;
(iii) an assignment in lieu of foreclosure of a Permitted Leasehold
Mortgage to the holder of such mortgage or a nominee controlled by such holder;
(iv) a sale, assignment, transfer, exchange or other disposition of
this Lease to a Lending Institution that meets the Net Worth Test and a
simultaneous sublease of the Demised Premises by such Lending Institution to its
assignor or to any entity described in clauses (A), (B), or (C) of subparagraph
12.(d)(i) above if such sub-lessee provides an appropriate attornment agreement
in favor of Landlord agreeing to attorn to Landlord under
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this Lease if the sub-lease is terminated for any reason and containing
provisions comparable to the provisions of this Article 12 limiting assignment
rights under the sub-lease;
(v) Provided that no Event of Default (as hereinafter defined)
shall have occurred and be continuing, any assignment or transfer following the
Stabilization Date including, without limitation: (A) an assignment or transfer
of all of the Tenant-assignor's (and all successors and assigns thereof)
leasehold and other ownership interests in the Demised Premises and balance of
the Project, (B) an assignment or transfer of any ownership interest in Tenant
(or the successors or assigns thereof) including any transfer or substitution of
any general partnership or limited partnership interest, any membership interest
to the extent the Tenant is a limited liability company, or any transfer or
assignment by whatever means of any stock of any corporation which is an owner
of an interest in the Tenant, or (C) any other transfer or assignment of any
interest in the Lease, the Project or any ownership interest in the Tenant (or
the successors and assigns thereof), it being the intent of the parties that
(subject to and without limiting applicable provisions of Article 16) following
the Stabilization Date any and all transfers or assignments of any interests in
the Lease, the Project or the Tenant, provided no Event of Default exists and is
continuing, shall not require the consent or approval of the Landlord, subject
to the assignee executing a Conforming Assignment Document;
(vi) a sale, assignment, transfer, exchange or other disposition of
any general partnership interest in Tenant or in a general partner in Tenant if
such sale, assignment, transfer, exchange or other disposition is to a Lending
Institution that meets the Net Worth Test, to such partnership itself or to
another general partner in Tenant or general partner in a general partner in
Tenant;
(vii) a sale, assignment, transfer, exchange or other disposition
of any limited partnership interest in Tenant or any partner in Tenant; or
(viii) a sale, assignment, transfer, exchange or other disposition
of the stock of any corporation which is a general partner in Tenant or which is
a general partner in such general partner if another general partner in Tenant
or in a partnership which is a general partner in Tenant shall own, in the
aggregate, at least fifty percent (50%) of the voting stock in such corporation
after such sale, assignment, transfer, exchange or other disposition.
(e) Prior to the Stabilization Date, the Tenant may not, without the
prior written consent of Landlord, otherwise sell, assign or otherwise transfer
the Demised Premises, or any other interests therein or in the Project, in whole
or in part, or any rights or interest which the Tenant may have under this
Lease, or sublease the Demised Premises or the Buildings or any portion thereof
or any other interest which it has in the Project or any part thereof, or
otherwise permit the use thereof by any other entity, which written consent
shall not be unreasonably withheld, conditioned or delayed, provided that:
(i) No Event of Default (as hereinafter defined) shall be
continuing;
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(ii) The proposed assignee or at least one of its principal or
controlling parties possesses hotel management ability and experience necessary
to maintain the Operating Standard or the proposed assignee has provided for the
management of the Convention Hotel by a third party who possesses such ability
and experience provided, however, that any such contract for the management of
the Convention Hotel which is in effect at the time of the occurrence of any
such transfer or assignment shall be deemed to meet the requirements of this
subparagraph, provided however that the provisions of this subparagraph and any
permitted transfer shall not waive any rights of Landlord to claim a default for
failure of any such Hotel Management Agreement to satisfy the requirements of
Paragraph 14.(b) of this Lease;
(iii) The proposed assignee (or at least one of the parties
involved in the proposed assignee and which will have direct or indirect
recourse liability under the Conforming Assignment Document) meets the Net Worth
Test, or otherwise has adequate financial responsibility to discharge all of the
obligations on its part to be performed hereunder as and when the same fall due
(taking into account the income generated, and reasonably anticipated to be
generated, by hotel operations in the Buildings and on the Land);
(iv) The proposed assignee has entered into a Conforming Assignment
Document;
(v) The proposed assignee has agreed in writing to assume
unconditionally any obligations of the Tenant as assignor hereunder arising
prior to the effective date of such assignment under the Conforming Assignment
Document; and
(vi) The proposed assignee has agreed to execute any and all
documents reasonably required by Landlord in connection with said assignment
provided such documents do not change the rights, liabilities or obligations of
the parties.
The consent of Landlord to an assignment, conveyance, transfer or lease shall in
no event be construed to relieve the Tenant or such assignee, grantee or tenant
from the obligation of obtaining the express consent in writing of Landlord to
any further assignment, conveyance, transfer or lease to the extent required by
this Lease. Any assignment, transfer or lease in violation of this Article shall
be voidable at Landlord's option.
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(f) Any provision of this Lease to the contrary notwithstanding (but
subject to all terms and conditions Article 16 hereof), no consent by Landlord
to an assignment (nor any transfer or Tenant's interest in this Lease pursuant
to this Article or otherwise, whether or not such transfer is deemed an
assignment) shall operate to release the Tenant or any successor assignor from
its obligations hereunder. Notwithstanding the foregoing, however, in the event
of an assignment for which Landlord's consent is obtained under Paragraph 12.(e)
above, or an assignment permitted without Landlord's consent under
sub-paragraphs (iv) or (v) of Paragraph 12.(d)(i) above [other than a partial
assignment only under clause (C) of said sub-paragraph (v) of Paragraph
12.(d)(i) of less than all of Tenant's interests under this Lease and in the
Improvements and Furnishings], and the assignee, in writing, unconditionally
assumes the same under a Conforming Assignment Document as required above, then
and in such event the Tenant-assignor shall automatically be released from any
obligations hereunder arising after the effective date of such assignment and
assumption. Upon Tenant's written request, Landlord shall provide Tenant with
confirmation of any release of Tenant pursuant to the terms of this paragraph
12(f) provided that such written confirmation shall not be required to
effectuate such release which shall be deemed to be automatic.
(g) Except as otherwise permitted under this Article, (i) all
assignments of this Lease (but not of ownership interests in Tenant) must
include the entire interest of the Tenant in, under and to the Demised Premises,
the Land, the Buildings, the Furnishings, this Lease and the Related Agreements,
and no transfer of the Tenant's interest in the Demised Premises and/or the
Buildings shall be made unless the entity receiving such transfer also receives
assignment of and accepts all terms and conditions of and assumes all
obligations under this Lease, and (ii) no assignment, whether or not the same
shall require the consent of Landlord, shall be effective unless and until a
fully executed copy of the instrument effecting the assignment setting forth the
assignee's acceptance and assumption of all of the terms and conditions of and
the Tenant's obligations under this Lease and the Related Agreements arising
from and after the date of such assignment has been delivered to Landlord.
(h) The prohibitions against assignment contained in this Article shall
apply with equal force to any purported assignment by operation of law.
(i) If this Lease is assigned, Landlord may collect rent from the
assignee. Collection of rent from a purported assignee to whom an attempt has
been made to improperly assign this Lease shall not constitute a recognition of
such assignee by Landlord nor a waiver of any of Landlord's right to proceed
against Tenant and/or such purported assignee.
(j) The Tenant shall have the right, without the prior approval or
consent of Landlord, to sublease restaurant or similar space in the Buildings,
or to grant concessions, for beauty or barber shops, airline ticketing,
automobile rental, newsstands, gift shops, apparel shops, arcades, valet parking
or any other commercial or retail activities found in first class convention
hotels, as the Tenant deems appropriate for operation of the Project. The Tenant
agrees that each sublease and concession agreement shall:
(i) require the subtenant or concessionaire to maintain adequate
books and records including reasonably detailed information on gross revenues
and to submit
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the same for inspection and audit by the Tenant and Tenant's authorized
designees and require the subtenant or concessionaire to comply with all laws,
ordinances and regulations of any governmental authority having jurisdiction
over the Buildings and any other rules and regulations of any nature to which
the Tenant is or shall be subject by virtue of this Lease or which otherwise
affects the Demised Premises and the Buildings;
(ii) provide that, in the event of the termination of this Lease,
the subtenant or concessionaire shall, if required by Landlord, attorn to and
pay rents and all other charges directly to Landlord, but that if Landlord does
not so require, then such lease or concession agreement shall be subject to
termination upon thirty (30) days written notice following any termination of
this Lease; and
(iii) obligate the subtenant or concessionaire not to violate any
term, covenant or restriction applicable to the Tenant which is contained in
this Lease, and the Tenant shall, in all events, use its best efforts to require
the faithful performance by subtenants and concessionaires of obligations
imposed by the sublease and concession agreement (specifically including but not
limited to, those set forth in this paragraph).
(k) The Tenant covenants that it will perform and observe all the
terms, covenants, conditions and agreements required to be performed and
observed by it under each sublease, unless such performance shall have been
expressly waived by the subtenant thereunder, to the effect that all things
shall be done by the Tenant which are necessary to keep unimpaired the Tenant's
rights as lessor under each sublease.
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(l) As security for the payment of all Rent and other amounts payable
to Landlord hereunder, the Tenant hereby assigns all subleases, licenses and
concessions to Landlord subject, however, to the rights of any Permitted
Leasehold Mortgagee while this Lease (or any substitute lease granted pursuant
to Article 16 hereof) remains in effect. In the event of the termination of this
Lease, the Tenant shall, on demand, assign, transfer and pay over to Landlord
all security deposits under all or such of the subleases, licenses and
concessions as Landlord may designate.
(m) If for any reason this Lease is terminated by summary proceedings,
such termination shall not result in a termination of any sublease or concession
agreement that was specifically approved by Landlord (with an original term of
three (3) years or more) (herein called an "Approved Sublease"}, and all such
Approved Subleases shall continue for the duration of their respective terms and
any extensions thereof as direct leases between Landlord hereunder and the
subtenant or concessionaire thereunder with the same force and effect as if
Landlord hereunder had originally entered into such sublease or concession
agreement as Landlord thereunder (subject, however, to the right of a Permitted
Leasehold Mortgagee under a Novation Ground Lease granted pursuant to the
provisions of Article 16 below). Provided they are not in default under their
respective Approved Subleases beyond any applicable grace periods provided for
in their respective Approved Subleases, any subtenants or concessionaires under
Approved Subleases shall not be named or joined in any action or proceeding by
Landlord under this Lease to recover possession of the Demised Premises or for
any other relief. Landlord shall, upon request of Tenant, prepare, execute,
acknowledge and deliver agreements evidencing and agreeing to the foregoing
provisions of this paragraph, provided that Tenant shall pay the reasonable
legal fees and disbursements of Landlord's counsel in connection therewith.
13. Landlord's Right to Inspect. Landlord and its agents shall have the
right to enter upon the Demised Premises and into the Buildings at reasonable
times for and for reasonable periods of time, after reasonable advance notice to
the Hotel General Manager, all as appropriate under the circumstances, to
inspect the operation, maintenance and use of the same, and to assure itself
that the Tenant is in full compliance with its obligations under this Lease (but
Landlord shall not thereby assume any responsibility for the performance of any
of the Tenant's obligations hereunder, nor any liability arising from the
improper performance thereof) if but only if:
(a) there is notice of any material violation of a governmental
requirement relating to the condition or operation of the Convention Hotel;
(b) there is any physical condition at the Convention Hotel which poses
a threat of imminent harm to the Convention Hotel or material reduction of Gross
Revenues; or
(c) there exists an uncured monetary Event of Default hereunder or any
other uncured material non-monetary Event of Default which involves the
condition or operation of the Convention Hotel.
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In the event of any bona fide dispute or uncertainty regarding the existence of
conditions requiring Tenant to permit Landlord to inspect as provided hereunder,
the Landlord is entitled to immediately seek under arbitration in accordance
with Section 49 below, and the arbitrator or arbitrators shall order on an
expedited basis the right for Landlord to make such inspections as are
reasonably necessary to determine the status of any such disputed conditions.
Landlord and its agents and consultants also shall be allowed to enter and view
public areas in the Convention Hotel as permitted by Tenant to members of the
public. For any inspection by Landlord as provided for hereunder the Tenant
shall make available an employee of the Tenant or of the hotel operator to
escort Landlord's representatives on any inspection of applicable areas in the
Convention Hotel, and Landlord shall not interrupt or interfere with the conduct
of the Tenant's business in any material way.
14. Operating Standards. (a) The parties agree and acknowledge, and it is a
consideration for entering into this Lease, that the Land is in the Xentury City
Development Project and that the guests of the Convention Hotel will reasonably
expect, because of the nature of the Convention Hotel as planned by the Tenant
and approved by Landlord, that the services provided at the Convention Hotel,
and the manner of providing such services, will be of a high standard consistent
with the Benchmark Hotel; that it is in the best interests of all concerned that
the guests of the Convention Hotel be provided with services of a high standard
consistent with the Benchmark Hotel; and that the Tenant will be held to a high
standard consistent with the Benchmark Hotel in affording such services.
Accordingly, throughout the Term, the Tenant will maintain the appearance and
quality of the Buildings, the Demised Premises and the Furnishings (subject to
permissible ordinary wear and tear as referenced below), and will conduct the
operation and management of the Buildings and the hotel business to be carried
on therein (including, without limitation, as to matters of maintenance, repair,
safety, sanitation, guest service and transportation service provided by or
through the Tenant), or cause the same to be managed and operated, as to all
items and services supplied to hotel guests or forming part of their hotel
experience, and all aspects of operation and management, so as to attain and
maintain a standard (herein referred to as the "Operating Standard" or
"Operating Standards") consistent with the operation of a first class
destination hotel and convention center equivalent, on the whole, with the
standards as are in effect as of the date hereof for the Benchmark Hotel, as the
same may reasonably be modified by the owner of the Benchmark Hotel from time to
time consistent with the current overall quality and standards thereof. The
Operating Standards shall permit and be subject to "ordinary wear and tear," but
only consistent with the level of ordinary wear and tear existing at the
Benchmark Hotel after consideration of the updating, replacement and renovation
activities and standards of the Benchmark Hotel. If for any reason the Benchmark
Hotel is no longer operated consistent with its current standards then either
the Landlord or the Tenant shall have the right to designate, with the written
approval of the other party (which approval shall not unreasonably be withheld),
a suitable replacement Benchmark Hotel for purposes hereof.
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(b) To assure that the Operating Standards are met by the Tenant, the
operation and management of the Buildings and the hotel business conducted
therein shall at all times during the Term be under the direct supervision of
either (i) GEC or one of its wholly-owned subsidiaries, (ii) a nationally
recognized hotel chain having a well-established reputation as a quality
convention hotelier or other entity approved by Landlord (which approval shall
not be unreasonably withheld, conditioned or delayed), or (iii) any other
manager selected by Tenant in the exercise of Tenant's business judgement as
qualified to serve as a quality convention hotelier for a facility such as the
Convention Hotel. Each and every Hotel Management Agreement shall specifically
incorporate the Operating Standards and shall provide (i) that the rights and
obligations of the Tenant under such Hotel Management Agreement shall be
expressly assumable by Landlord and that if the Operating Standards are not met
and the operator fails to cure any such default within a reasonable period, then
the Tenant shall have the right to terminate the Hotel Management Agreement. In
the event that any operator fails to meet any of the Operating Standards, the
Tenant shall, promptly after it becomes aware of such failure (either by notice
from Landlord or otherwise), so notify such operator and Landlord. In the event
of the termination of any Hotel Management Agreement shall use diligent efforts
to seek a substitute operator as expeditiously as possible. Until any such
substitute operator assumes the duties of any defaulting operator, the Tenant
shall use its best efforts to enforce the provisions of the Hotel Management
Agreement against the defaulting operator, and/or to cure any defaults of the
operator which the Tenant is capable of curing, so as to assure, to the extent
possible, compliance with the Operating Standards. Each Hotel Management
Agreement shall contain a covenant requiring management and operation of the
Project in a manner consistent with a first class destination hotel and
convention center.
(c) Without limiting the generality of the foregoing, the Tenant shall,
at its own cost and expense, procure and install and keep and maintain in the
Buildings all furniture and furnishings including, without limitation, all
prefabricated fixtures and operating equipment for all lobbies, dining rooms,
kitchens, laundries, halls, pantries, toilets, foyers, corridors and other
public rooms and places, and for the parlors, suites, dressing rooms, bedrooms,
baths and other private rooms, and for all workshops, storerooms and offices in
the Buildings necessary and proper for the complete and comfortable use,
enjoyment, occupancy and operation of a first class Convention Hotel of a
quality consistent with the Benchmark Hotel (all of said article and items, as
well as all additions thereto and replacements and renewals thereof, other than
articles and items owned by subtenants, concessionaires, contractors, agents,
employees and customers, are hereinafter collectively referred to as the
"Furnishings"), together with an adequate stock and inventory of food, beverages
and other consumable supplies.
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(d) Consistent with and in consideration of the foregoing, the Landlord
hereby agrees with and in favor of the Tenant that the Xentury City Development
Project shall be developed in the first instance as a first-class mixed-use
project focused on hotel and/or timeshare and other tourist commercial,
upper-grade office and related uses (potentially including appropriate
residential uses) which are compatible with the development and operation of the
Convention Hotel as contemplated under the Operating Standards, under a
consistent design review standard which will allow the Xentury City POA to
regulate building and site design in order to prevent development of an
undesirable type or quality which would negatively impact the Convention Hotel.
This standard is not intended to eliminate potentially competing uses or require
particular use types which might benefit the Convention Hotel, but instead is
intended to support site, building and landscaping design which will be
consistent with the first-class standard to be maintained by the Convention
Hotel and Xentury City Development Project and avoid incompatible uses within
areas of the Xentury City Development Project, such as the Osceola Parkway and
International Drive approaches and adjacent sites. Once developed, the Landlord
or Xentury City POA shall require and reasonably enforce site maintenance
standards reasonably calculated to require the proper maintenance and upkeep of
Xentury City Development Project improvements in the vicinity of the Convention
Hotel.
15. Default. (a) Each of the following events shall be an Event of Default
(an "Event of Default") hereunder by the Tenant and a breach of this Lease:
(i) If the Tenant shall fail to pay, or cause to be paid, when
due, any and all payments of Rent or any other sum to be made by the Tenant
hereunder, and such payment remains unpaid for a period of thirty (30) days
after receipt of Landlord's written notice thereof by the Tenant, or for such
longer period as may be required to resolve any payment dispute which is being
contested by the Tenant in accordance with the terms of Section 15(e) of this
Lease.
(ii) If the Tenant fails to construct the Convention Hotel or
otherwise perform its obligations in accordance with the provisions of Section
2(d) of this Lease, and the Tenant does not exercise the termination option set
forth in Section 2(d) hereof, and such failure continues for thirty (30) days
after receipt of Landlord's notice thereof by the Tenant or, if compliance
cannot reasonably be effected within thirty (30) days, the Tenant shall have
failed to commence within such period the steps necessary to comply and
thereafter to proceed diligently therewith to completion.
(iii) If any assignment, subletting, concession or other transfer
shall be made or deemed to be made that is in violation of Article 12, and such
assignment or transfer is not canceled and, if applicable, the transferee
removed from the Land within thirty (30) days after Landlord's notice to cancel
the same has been received by the Tenant.
(iv) If the Tenant shall fail to comply with any other term,
covenant or condition of this Lease (not covered by (i), (ii) and (iii) above),
and such failure to comply shall continue for a period of thirty (30) days after
Landlord's written notice to the Tenant thereof (or, if compliance cannot
reasonably be effected within thirty (30) days, and the
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Tenant shall have failed to commence within such period the steps necessary to
comply and thereafter to proceed diligently therewith to completion), or for
such longer period as may be required to resolve any performance dispute which
is being contested by the Tenant in accordance with the terms of Section 15(e)
of this Lease.
(b) Upon the occurrence of any Event of Default (but subject to the
provisions of Article 16 and, where specifically applicable, Article 49 hereof),
Landlord may obtain relief against Tenant in any court of equity or law and/or
terminate this Lease; provided, however that no termination of this Lease shall
result from such Event of Default except as expressly provided in paragraph
15(c) below. If Landlord obtains relief against Tenant as aforesaid, Tenant
shall immediately comply with the order of said court, failing which the
provisions of paragraph (c) of this Article shall apply (except those relating
to the right to contend that the Event of Default did not occur or is not
continuing). A judgment for damages shall be deemed additional rent payable by
Tenant to Landlord hereunder.
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(c) Any provision of this Lease (including without limitation those
contained in this Article and in Article 16) to the contrary notwithstanding:
(x) Landlord's right to exercise any or all of its remedies [including, without
limitation, termination of this Lease by reason of an Event of Default of the
nature described in subparagraphs (i), (ii), or (iii) of Section (a) of this
Article] shall not be subject to the following sentences of this paragraph 15(c)
but shall be subject to the provisions of Article 16 hereof; and (y) no
provision of this Lease shall delay or otherwise limit Landlord's rights
hereunder or otherwise available under applicable law to seek injunctive relief
(as opposed to damages or termination of this Lease) or Tenant's obligation to
comply with any injunctive relief ordered in arbitration pursuant hereto or by
any court having jurisdiction, or Landlord's right to advance funds and obtain
reimbursement from Tenant for any unpaid obligations of Tenant hereunder.
Subject to the immediately preceding sentence, if any Event of Default under
Section (a) of this Article shall occur and be continuing, Landlord shall give a
second notice to Tenant (which notice must specify in reasonably detail the
nature of such Event of Default), and Tenant and all Permitted Lease-hold
Mortgages shall have an additional thirty (30) days in which to either: (i) cure
such default, or if cure cannot reasonably be effected within thirty (30) days,
to commence within such period the steps necessary to cure and thereafter to
proceed diligently to complete the same; or (ii) give notice (which notice may
also be given during the first notice period with the same effect) to Landlord
that Tenant or any Permitted Leasehold Mortgagee contends that the Event of
Default in question either did not occur or is not continuing, stating in
reasonable detail the basis for such contention (but a Permitted Leasehold
Mortgagee may not so contend so long as Tenant has commenced and is completing
the steps necessary to cure the default). If neither step [i.e., (i) or (ii)] is
taken within such thirty-day period, then Landlord may, at its option, if the
Event of Default is continuing, give to Tenant a notice of election to terminate
this Lease upon a date specified in such notice, which date shall be not less
than ten (10) business days (Saturdays, Sundays and legal holidays excluded)
after the date of receipt by Tenant of such notice from Landlord, and (except as
otherwise provided in Article 16) upon the date specified in said notice if the
default or breach is not then cured, this Lease shall terminate with neither
party having any further rights or liabilities under this Lease except those
which are specifically expressed, or by their nature are intended, to survive
any termination of this Lease. If Tenant or any Permitted Leasehold Mortgagee
gives the specified notice in (ii) above, Landlord shall respond thereto in
writing within ten (10) days of its receipt of said notice and if Landlord fails
to do so, and Tenant or any Permitted Leasehold Mortgagee gives to Landlord a
notice (a "Reminder Notice") citing this Lease and this paragraph, attaching a
copy of Landlord's second notice, and specifying in block capital letters and
bold-face type, that unless Landlord does so respond within twenty (20) days
after receipt of the Reminder Notice the applicable Event of Default shall be
deemed waived by Landlord, then unless Landlord does so respond within the
relevant twenty (20) day period, Landlord shall be deemed to have waived the
applicable Event of Default. If Landlord agrees with said contention, then the
notice of default in respect of the claimed default shall be deemed rescinded.
If, on the other hand, Landlord timely disagrees with said contention, then such
response by Landlord to Tenant shall be deemed the second notice to Tenant, and
Tenant and each Permitted Leasehold Mortgagee shall have the period of time to
cure (or commence to cure) said claimed default as provided in this paragraph
or, alternatively, shall have twenty (20) days in which to submit said
contention (by filing an action in Tenant's name) to arbitration as provided
hereunder;
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provided, however, that if said contention is not so submitted within the time
provided, it shall be deemed waived. Any decision by the arbitrator(s) shall be
subject to any appeals available to either party, and the attorneys' fees and
disbursements of the prevailing party will be paid by the losing party as
provided in Article 35. If judgment is obtained by Landlord that the Event of
Default did occur and is continuing, and such judgment shall have become final
and the time for appeal therefrom shall have expired without appeal having been
taken, Tenant and each Permitted Leasehold Mortgagee shall have an additional
thirty (30) days after it received notice of the judgment in which to cure the
default, or if cure cannot reasonably be effected within thirty (30) days, to
commence within such period the steps necessary to cure and thereafter to
proceed diligently to complete the same. If no such action is taken or commenced
within such thirty (30) day period, then Landlord may, at its option, if the
Event of Default is continuing, give to Tenant a notice of election to terminate
this Lease upon a date specified in such notice, which date shall be not less
than (10) business days (Saturdays, Sundays and legal holidays excluded) after
the date of receipt by Tenant of such notice from Landlord, and (except as
otherwise provided in Article 16) upon the date specified in said notice, if the
default or breach is not then cured, this Lease shall terminate with neither
party having any further rights or liabilities under this Lease except those
which are specifically expressed, or by their nature are intended, to survive
any termination of this Lease. The curing of any default within the time
permitted by any partner in Tenant, if Tenant is a partnership, or by any
Permitted Leasehold Mortgagee, together with payment to Landlord of all costs of
enforcement as provided under Section 35, shall constitute a curing of such
default with like effect as if Tenant had cured the same. Landlord shall not
have any right of termination other than that provided for this Section 15(c),
and Landlord hereby waives any right to terminate this Lease other than the
right provided for in this Section 15(c) which may at any time be provided for
at law or in equity for any breach or default of Tenant under this Lease.
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(d) In the event of a breach, or directly or overtly threatened breach,
by the Tenant of any of the agreements, conditions, covenants or terms herein
(other than and not including breaches limited to failure to pay Rent or other
monetary sums owed to Landlord) which Landlord reasonably determines are not
reasonably likely to be cured within the cure periods available to Tenant
hereunder without a material risk of imminent loss, harm or damage to Landlord
or its interests in the Demised Premises for which Tenant does not post adequate
bond or other security, the Landlord shall have the right after written notice
to Tenant, and without limiting other remedies available to Landlord hereunder
or under applicable law or Landlord's other rights to damages or other relief
hereunder, to seek injunctive relief requiring Tenant to correct or otherwise
granting necessary power and authority to Landlord to correct any such breach or
condition. The rights and remedies given to the Landlord in this Lease are
distinct, separate and cumulative rights and remedies, and no one of them,
whether or not exercised by the Landlord, shall be deemed to be in exclusion of
any of the others. Upon the occurrence of any such event no provision of this
Lease shall delay or otherwise limit Landlord's rights hereunder or under
applicable law to seek injunctive relief or the Tenant's obligation to comply
with any such injunctive relief or Landlord's right to advance funds for any
unpaid obligations of the Tenant hereunder. Any remedy for injunctive relief or
for damages shall be through arbitration pursuant to Section 49 of this Lease,
and the Tenant agrees and stipulates that the arbitrator(s) in any such
arbitration shall be authorized and shall have full power and authority to order
injunctive relief if provided for hereunder or under applicable law, and that
any award of damages against Tenant shall be deemed to be Rent payable by Tenant
under Article 6 of this Lease. The term Permitted Leasehold Mortgagee as used in
this Article shall have reference to only those Permitted Leasehold Mortgagees
to which the provisions of Section 16(c) are applicable.
(e) The Tenant may contest the occurrence of an Event of Default by
submitting such dispute to arbitration pursuant to Section 49 of this Lease
provided and on the condition that any right to contest such Default shall
require the Tenant, within the time provided to cure defaults set forth in
Section 15(a) above, (i) to pay or cause to be paid all amounts and to perform
all obligations which are not disputed in good faith by the Tenant and (ii) to
the extent that the Default relates to the failure by the Tenant to pay or cause
to be paid monetary obligations payable hereunder, to tender to the arbitration
entity with a demand for arbitration a cashier's check to deposit in escrow with
the arbitration panel the amount in dispute. Having a submitted a dispute to
arbitration, neither party shall have the right to contest under Section 15(c) a
final decision under arbitration as to whether or not an Event of Default exists
or is continuing.
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(f) In the event of any breach or default by Landlord under the terms
hereof which remains uncured following written notice from Tenant and cure and
dispute resolution periods consistent with those applicable to defaults by
Tenant as set forth above, then in addition to any other remedies available to
Tenant under applicable law the Tenant shall have the right to seek specific
performance of Landlord's obligations and obtain injunctive relief through
arbitration in accordance with Section 49 below, or to cure or cause the cure of
any such default and recover from the Landlord all costs reasonably incurred to
cure such default together with interest on all such amounts advanced from time
to time at the highest rate allowed by law.
16. Permitted Mortgages. (a) The Tenant is hereby given the right by
Landlord, in addition to any other rights herein granted and without any
requirement to obtain Landlord's consent, to mortgage or grant a security
interest in the Tenant's interest in this Lease, the Demised Premises, the
Buildings and the Furnishings and any sublease(s) under one or more mortgage(s)
to one or more Lending Institution(s), and to assign this Lease and any
sublease(s) as collateral security for such mortgage(s), upon the condition that
all right acquired under such mortgage(s) (herein a "Permitted Mortgage") shall
be subject to each and all of the covenants, conditions and restrictions set
forth in this Lease and to all rights and interests of Landlord herein, none of
which covenants, conditions, restrictions, rights or interests is or shall be
waived by Landlord by reason of the right given to mortgage or grant a security
interest in the Tenant's interest in this Lease and the Demised Premises, the
Buildings and the Furnishings, except as expressly provided herein. In no event,
however, shall there be more than three (3) such Permitted Mortgages in
existence at any one time.
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(b) The holder of, or secured party under, a Permitted Mortgage is
herein referred to as a "Permitted Leasehold Mortgagee". The Permitted Mortgage
that is prior in lien among those in effect is herein referred to as the "First
Permitted Leasehold Mortgage," and the holder of, or secured party under, the
First Permitted Mortgage is herein referred to as the "First Permitted Leasehold
Mortgagee". If a First Permitted Mortgage and a Permitted Mortgage that is
second in priority in lien among those in effect are both held by the same
Permitted Leasehold Mortgagee, the said two Permitted Mortgages are herein
collectively referred to as the "First Permitted Mortgage". A "Permitted
Mortgage" shall include, without limitation, mortgages, mortgage deeds, security
deeds and conditional deeds, as well as financing statements, security
agreements and other documentation which the lender may require. The words
"Lending Institution", as used in this Lease, shall mean any commercial,
national or savings bank, savings and loan association, trust company or
insurance company, non-union or governmental employee pension funds, any
publicly-held corporation or its pension funds or any real estate investment
trust which in either case is actively engaged in the business of making
commercial mortgage loans and meets the Net Worth Test, and any other entity
approved by Landlord as a Lending Institution. Landlord shall not unreasonably
withhold its approval of a nationally-respected lender-mortgagee (such as an
eleemosynary institution or foundation, any other publicly-held corporation or
its pension funds, any other real estate investment trust, a pension fund or the
like). It is understood that a Permitted Mortgage made to, or held by, a Lending
Institution acting as agent or trustee for one or more parties who have
interests in the mortgage, regardless of whether or not such parties are
themselves Lending Institution(s), shall be a Permitted Mortgagee.
(c) Landlord shall not be deemed to have actual or constructive notice
or knowledge of any Permitted Mortgage unless and until the Permitted Leasehold
Mortgagee shall send to Landlord a true copy of its recorded mortgage, together
with written notice specifying the name and address of the Permitted Leasehold
Mortgagee. Within a reasonable time after recording such mortgage, the Tenant
shall deliver to Landlord the appropriate recording information in respect of
such Permitted Mortgage. From and after provision of a copy of such Permitted
Mortgage to Landlord by any Permitted Leasehold Mortgagee pursuant to the first
sentence of this paragraph (c), then so long as such Permitted Mortgage shall
remain unsatisfied of record or until written notice of satisfaction is given by
the holder to Landlord, the following provisions shall apply in respect of each
such Permitted Mortgage:
(i) There shall be no cancellation, termination, surrender,
acceptance of surrender, amendment or modification of this Lease by joint action
of Landlord and the Tenant, nor shall Landlord recognize any such action by the
Tenant alone, without in each case the prior consent in writing of such
Permitted Leasehold Mortgagee.
(ii) Landlord shall, upon serving the Tenant with any notice,
whether of default or any other matter, simultaneously serve a copy of such
notice upon such Permitted Leasehold Mortgagee.
(iii) In the event of any default by the Tenant under this Lease,
such Permitted Leasehold Mortgagee shall have the same period, after service of
notice upon it of such default, to remedy or cause to be remedied or commence to
remedy and complete the
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remedy of the default complained of as the Tenant has hereunder for such
default, and Landlord shall accept such performance by or at the instigation of
such Permitted Leasehold Mortgagee as if the same had been done by the Tenant.
Each notice of default given by Landlord will state the amounts of whatever
payments herein provided for or other obligations hereunder are then claimed to
be in default. In addition, and without limiting the provisions of Paragraph
16(c)(iv) below, in the event that a payment default has not been cured within
the 30-day notice and cure period provided in Paragraph 15(a)(i) above, Landlord
shall so notify each Permitted Leasehold Mortgagee who will then have an
additional five (5) business days in which to cure any such payment default,
provided that such curative right shall not prevent the Landlord from
terminating, or limit the Landlord's right to terminate, this Lease, but in the
event that any Permitted Leasehold Mortgagee does in fact cure any such monetary
default then this Lease shall automatically be reinstated without further action
by Landlord or Tenant upon the written election of the Permitted Leasehold
Mortgagee if delivered at the time such payment is made.
(iv) If the Landlord shall elect to terminate this Lease and
causing a Reversion by reason of any default of the Tenant, each Permitted
Leasehold Mortgagee shall not only have the right to nullify any notice of
termination by curing such default prior to the effective date of termination
but shall also have the separate right to postpone and extend the specified date
for the termination of this Lease, as fixed by Landlord in its notice of
termination, for a period of not more than twelve (12) months from the date so
specified for termination provided that such Permitted Leasehold Mortgagee shall
unconditionally agree with Landlord (by giving a notice to that effect to
Landlord), prior to the effective date of termination, that such Permitted
Leasehold Mortgagee will accomplish the following within the times hereinafter
provided and shall, in fact, accomplish the following in a timely manner: (1)
cure or cause to be cured within thirty (30) days of such notice any then
existing monetary defaults of which the Permitted Leasehold Mortgagee has
knowledge; (2) pay or cause to be paid during such twelve (12) month period any
monetary obligations of the Tenant hereunder of which the Permitted Leasehold
Mortgagee has knowledge, as the same fall due; (3) promptly cure or cause to be
cured any other defaults that such Permitted Leasehold Mortgagee can cure and of
which the Permitted Leasehold Mortgagee has knowledge; and (4) forthwith take
such steps as it shall be lawfully able to acquire or sell the Tenant's interest
in the Demised Premises, Buildings, Furnishings and other Convention Hotel
assets and in this Lease by foreclosure of the Permitted Leasehold Mortgagee or
otherwise, and thereafter prosecute the same to completion with reasonable
diligence. If, at the end of said twelve (12) month period, the Permitted
Leasehold Mortgagee shall be actively engaged in steps to acquire or sell the
Tenant's interest herein including, without limitation, contesting any court
order, or seeking relief from any statutory stay, restricting such acquisition
or sale, and is in compliance with the other conditions set forth in clauses (1)
through (3) above, the time for said Permitted Leasehold Mortgagee to comply
with the applicable provisions of this subparagraph (iv) shall be extended for
such period as shall be reasonably necessary to complete such steps with
reasonable diligence upon the same conditions. If the Tenant's interest is
acquired or sold as aforesaid, the intended termination of this Lease by
Landlord under the aforesaid notice will be automatically nullified, and this
Lease will continue as if said notice of termination had never been given.
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(v) In the event of termination of this Lease and a Reversion by
reason of any uncured default by the Tenant, Landlord will promptly notify such
Permitted Leasehold Mortgagee of such termination and the amount of any sums
then due to Landlord under this Lease, and such Permitted Leasehold Mortgagee
shall have the right (except where such Permitted Leasehold Mortgagee has
extended the date of termination pursuant to the provisions of subparagraph (iv)
of this paragraph 16(c) and has subsequently failed to fulfill its obligations
thereunder) to have Landlord enter into a ground lease of the Demised Premises
and any interest of the Landlord in the Buildings and any other Improvements
(herein a "Novation Ground Lease") with such Permitted Leasehold Mortgagee or a
nominee controlled by such Permitted Leasehold Mortgagee (hereinafter referred
to in this subparagraph as its "nominee") in accordance with the following
provisions:
(1) The Permitted Leasehold Mortgagee or its nominee shall be
entitled to a Novation Ground Lease if the Permitted Leasehold
Mortgagee shall make written request upon Landlord for such Novation
Ground Lease on or before the date which is thirty (30) days after the
date on which such Permitted Leasehold Mortgagee shall have received
the notice from Landlord of termination hereof and if such written
request is accompanied by the Permitted Leasehold Mortgagee's
agreement to pay to Landlord, upon the execution and delivery of the
Novation Ground Lease, the sums which would then be due to Landlord
under this Lease had this Lease remained in effect;
(2) Such Novation Ground Lease shall be for what would have
been the remainder of the Term hereunder if this Lease had not
terminated, effective as of the date of such termination, at the Rent
and upon the terms, provisions, covenants and agreements as herein
contained, including all rights and options herein contained;
(4) To the extent within the control of Landlord, such Novation
Ground Lease shall be prior to any mortgage or other lien, charge or
encumbrance on the fee simple ownership of the Land (except taxes and
assessments and any similar matters required by law to take priority)
and, if so requested by the Permitted Leasehold Mortgagee, shall be
accompanied by a conveyance quit-claiming any right, title or interest
of Landlord in and to the Buildings and the Furnishings during the
Term of the Novation Ground Lease. Such Novation Ground Lease shall,
however, be subject to the same conditions of title as this Lease is
subject to on the date of the execution hereof;
(5) In such Novation Ground Lease, the Permitted Leasehold
Mortgagee or its nominee shall agree to perform and observe all
covenants herein contained on the Tenant's part to be performed and to
cure all defaults of the Tenant hereunder existing at that time which
it is possible for such Permitted Leasehold Mortgagee to cure, except
that all of the obligations and liabilities of the Permitted Leasehold
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Mortgagee or its nominee as the Tenant under the Novation Ground Lease
shall cease and terminate upon assignment of the Novation Ground Lease
or the sooner expiration or termination thereof and shall be subject
to any limitation on liability contained therein;
(6) Landlord shall not warrant possession of the Demised
Premises to the Permitted Leasehold Mortgagee or its nominee under any
such Novation Ground Lease, it being understood that the Novation
Ground Lease shall be expressly made subject to the rights, if any, of
the Tenant under this Lease or any other person claiming the right to
possession through or under the Tenant;
(7) The Permitted Leasehold Mortgagee or its nominee as tenant
under the Novation Ground Lease shall have the same right, title and
interest in and to the Buildings and the Furnishings as the Tenant had
under this Lease.
(8) If more than one Permitted Leasehold Mortgagee shall make
written request upon Landlord in accordance with the provisions hereof
for a Novation Ground Lease, the Novation Ground Lease shall be
delivered pursuant to the request of the Permitted Leasehold Mortgagee
whose leasehold mortgage is prior in lien among those who made the
request, and the written request of any Permitted Leasehold Mortgagee
whose leasehold mortgage is subordinate in lien shall be void and of
no force or effect.
(9) If the required use of the Demised Premises as the
Convention Hotel under this Lease is no longer economically viable
then the Landlord shall not unreasonably withhold its approval of and
consent to a reasonable alternative higher and better use hereunder so
long as the Permitted Leasehold Mortgagee or its nominee under any
such Novation Ground Lease can provide and does in fact provide all
assurances as may reasonably be required by Landlord so that any such
alternative approved use is consistent with other uses within the
Xentury City Development Project and will not result in any material
reduction in the fair market value or value in use of the Improvements
and Demised Premises, or in the Rent or any other sums accruing and
reasonably anticipated to accrue to Landlord hereunder or otherwise
relating to the Convention Hotel, including particularly but without
limitation Percentage Rent, from the sums and amounts which otherwise
would exist or accrue to Landlord were the Demised Premises used
solely for the approved use as the Convention Hotel in accordance with
all applicable requirements hereof.
(vi) The name of each Permitted Leasehold Mortgagee may be added to
the loss payable endorsement of any and all fire and other casualty insurance
policies
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to be carried by the Tenant in respect of the Land, the Buildings and/or the
Furnishings, and all such policies shall stated that the insurance proceeds are
to be paid to the First Permitted Leasehold Mortgagee to be held for the benefit
of the parties hereto and applied in the manner specified in this Lease.
(vii) If there is a condemnation or taking by eminent domain in
respect of the Land, the Buildings and/or the Furnishings which does not result
in a termination of this Lease, any award of payment therein shall be paid to
the First Permitted Leasehold Mortgagee for the benefit of the parties hereto,
and applied in the manner specified in this Lease; and if the same results in a
termination of this Lease, the Tenant's portion of the award or payment shall be
paid to the First Permitted Leasehold Mortgagee for the benefit of the Tenant
and the Permitted Leasehold Mortgagees.
(viii) No fire or casualty loss claims shall be settled and no
agreement will be made in respect of any award or payment in condemnation or
eminent domain without in each case the prior written consent of the First
Permitted Leasehold Mortgagee; provided, however, that such Permitted Leasehold
Mortgagee has agreed to make such award or payment available in the manner
specified in this Lease.
(ix) Except where the Permitted Leasehold Mortgagee has become a
tenant under a Novation Ground Lease, no liability for the payment of any
amounts due or the performance of any of the Tenant's covenants and agreements
hereunder shall attach to or be imposed upon the Permitted Leasehold Mortgagee
(other than any obligations assumed by, or agreed to by, the Permitted Leasehold
Mortgagee), all such liability (other than any obligations assumed by or agreed
to by the Permitted Leasehold Mortgagee) being hereby expressly waived by
Landlord.
(x) Landlord, within ten (10) days after a request in writing by the
Tenant or any Permitted Leasehold Mortgagee, shall furnish a written statement,
duly acknowledged, that this Lease is in full force and effect and unamended, if
such be the case, or if there are any amendments, such statement will specify
the amendments, and that there are no defaults thereunder by the Tenant that are
known to Landlord, or if there are any known defaults, such statement shall
specify the defaults Landlord claims exist.
(xi) No payment made to Landlord by any Permitted Leasehold
Mortgagee shall constitute agreement that such payment was, in fact, due under
the terms of this Lease; and the Permitted Leasehold Mortgagee having made any
payment to Landlord pursuant to Landlord's wrongful, improper or mistaken notice
or demand shall be entitled to the return of any such payment or portion thereof
provided it shall have made demand therefor not later than one (1) year after
the date of its payment.
(xii) The First Permitted Leasehold Mortgagee shall be given notice
of any arbitration or other proceeding or dispute between the parties and shall
have the right to intervene therein and be made a party thereto. In any event,
each Permitted Leasehold Mortgagee shall receive notice, and a copy, of any
award or decision made in said arbitration or other proceeding.
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(d) Landlord shall, upon request, execute, acknowledge and delivery to
each Permitted Leasehold Mortgagee an agreement prepared at the sole cost and
expense of the Tenant, in form satisfactory to the Permitted Leasehold Mortgagee
and Landlord, among Landlord, the Tenant and the Permitted Leasehold Mortgagee,
agreeing to all the provisions of this Article.
(e) Landlord shall at no time be required to subordinate its fee simple
interest in the Demised Premises to the lien of any leasehold or other mortgage,
nor to mortgage its fee simple interest in the Demised Premises as collateral or
additional security for any leasehold or other mortgage. Any provision of this
Lease or of the Related Agreements to the contrary notwithstanding, if a
Permitted Leasehold Mortgagee elects pursuant to this Article to receive a
Novation Ground Lease, it shall also at the time it enters into such Novation
Ground Lease enter into new Related Agreements on the terms which are expressed
to be applicable to Permitted Leasehold Mortgagees as set forth in the
respective Related Agreements.
17. End of Term. (a) The Tenant shall, on or before the last day of the
Term or upon the sooner termination of the Term, peaceably and quietly surrender
and deliver to Landlord the Land, the Buildings and the Furnishings, in good
condition and repair consistent with the Operating Standards [subject to
paragraph (c) of Article 9 and Paragraph (d) of Article 11] and free and clear
of liens, encumbrances and subtenancies (except as otherwise provided in Article
12 or in this paragraph); provided, however, that in the event of the sooner
termination of this Lease, Landlord may, at its option, require any or all
subtenants or concessionaires (other than any which are under common
Landlordship and control with the Tenant) to recognize Landlord under such
sublease or concession agreement, in which event any such subtenant or
concessionaire of Landlord for the balance of the remaining term of the sublease
or concession agreement as determined without regard to, and notwithstanding,
the sooner termination of this Lease.
(b) Upon surrender, or upon the expiration or any sooner termination of
the Term hereof, whichever first occurs, title to the Buildings and the
Furnishings (except those leased by or loaned to the Tenant, as herein
permitted) shall thereupon, and without further act of either party, vest in
Landlord (subject, however, in the event of the sooner termination of this
Lease, to the rights of any Permitted Leasehold Mortgagee to acquire the same in
connection with a Novation Ground Lease granted pursuant to Article 16), and the
Tenant shall promptly thereafter execute and deliver to Landlord such deed or
bill of sale as Landlord may reasonably request, provided they contain no
covenant, warranty, representation or other liability of the Tenant contained
herein.
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(c) If the Tenant holds over or refuses to surrender possession of the
Demised Premises and Buildings in accordance with the provisions of this Lease,
Landlord shall have the right, in additional to all other rights and remedies
available to it, to treat such holding over as a tenancy at sufferance or a
month-to-month tenancy. During such holder over period, the Tenant shall be
deemed to be a tenant at sufferance and as such shall be obligated to perform
all of its obligations under this Lease (as if this Lease had not so expired or
terminated), except that the Base Rent during the period of holding over shall
be doubled. During any such holding over period, Landlord shall have no
obligations of any nature whatsoever under this Lease or otherwise to the
Tenant.
(d) If the Demised Premises, the Buildings, and the Furnishings are not
timely so surrendered, the Tenant shall pay to Landlord all expenses which
Landlord may incur by reason thereof and, in addition, shall indemnify and hold
harmless Landlord from and against all claims made against Landlord by any
tenant or subtenants or other successor or grantee of Landlord succeeding to the
Demised Premises or Buildings or any part thereof, founded upon delay by
Landlord in delivering possession of the Demised Premises and Buildings to any
such successor or upon the improper or inadequate condition of the Demised
Premises and Buildings, to the extent that such delay or improper or inadequate
condition is occasioned by the failure of the Tenant to perform its said
surrender obligations and/or to timely surrender the Demised Premises and all
interests therein and related thereto as provided hereunder. All property of the
Tenant or of any other person which shall remain in the Convention Hotel or at
the Demised Premises after the expiration or sooner termination of this Lease
shall be deemed to have been abandoned and may be retained by Landlord as its
property or be disposed of without accountability in such manner as Landlord may
deem fit and, if the cost of any disposition exceeds any proceeds from the said
of such property, such cost shall be paid by the Tenant to Landlord upon demand.
(e) Notwithstanding the foregoing provisions of Paragraphs 17(a) and
17(d) above, the Landlord shall not be entitled upon the End of Term to unopened
stocks and inventories of food, beverages and other consumable supplies which
are not then in use for the proper current operation of the Convention Hotel,
nor shall Landlord be entitled to receive payment of any accounts receivable or
bank accounts or other financial sums relating to the operation of the
Convention Hotel by Tenant during the Term (except as a proper offset to any
unpaid sums owed by Tenant hereunder) and shall use reasonable efforts to
collect such accounts and sums for the account of Tenant, unless and except to
the extent that Landlord shall so elect with respect to such items thereof as
reasonably designated by Landlord (the "Additional Assets") and agree to pay the
actual cost (or fair market value if no record cost exists) thereof to Tenant as
an additional end of term payment (the "Buyout Price" for such Additional
Assets) hereunder. To the extent that Landlord does not elect to purchase such
Additional Assets as provided above, then Tenant may remove all such Additional
Assets not being acquired by Landlord at the End of Term.
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18. Indemnity. (a) The Tenant shall pay and discharge, and shall defend,
indemnify and hold Landlord (and Landlord's parent company, their related,
affiliated and subsidiary companies, and the officers, directors, agents,
employees, representatives, successors and assigns of each if the Tenant is
required to name those within this parenthetical as additional insureds under
the Tenant's liability policy pursuant to Article 8), harmless from and against
all obligations, settlements, liabilities, losses, damages, injunctions, suits,
actions, proceedings, fines, penalties, claims, liens, demands, costs, charges
and expenses of every kind or nature, including, without limitation, reasonable
fees of attorneys and other professionals, and disbursements, which may be
imposed on, incurred by or asserted against the persons hereby required to be
indemnified (the "Indemnified Parties") (but not against any of the same to the
extent that a negligent, or willful, act or omission or the Indemnified Parties
was the cause of same (individually, a "Liability", and collectively, the
"Liabilities"), arising directly or indirectly from or out of:
(i) any failure by the Tenant to perform any of the agreements,
terms, covenants or conditions on the Tenant's part to be performed under this
Lease or the Hotel Development Agreement (to the extent the provisions thereof
remain in effect on and after the date hereof);
(ii) any accident, injury or damage which shall happen in or on the
Demised Premises or Buildings, however occurring, and any matter or thing
growing out of the condition, occupation, maintenance, alteration, repair, use
or operation by any person of the Land, the Buildings, the Furnishings or any
part of them;
(iii) any wrongful act or negligence on the part of the Tenant or
its Affiliates, and any failure of the Tenant to comply with any laws,
ordinance, requirements, orders, directions, rules or regulations of any
governmental authority;
(iv) any work, construction, demolition or other thing done in, on,
or about the Buildings or the Land, or any part thereof, or any street, alley,
sidewalk, garden, curb, passageway or space adjacent thereto;
(v) any use, non-use, possession, occupation, condition, operation,
maintenance or management of the Buildings or the Demised Premises or any part
thereof or any street, alley, sidewalk, garden, curb, passageway or space
adjacent thereto;
(vi) any claim, proceeding or action brought or taken by a
Permitted Leasehold Mortgagee; and
(vii) any other provision of this Lease which provides that the
Tenant shall indemnify and/or hold harmless Landlord in respect of the matters
contained in such provision.
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(b) In the event that any action or proceeding is brought against
Landlord and/or Landlord's Affiliates by reason of any or all of the foregoing
liabilities which is not covered by insurance maintained pursuant to this Lease,
or if the insurance carrier fails to defend Landlord and/or Landlord's
Affiliates against any such liability, the Tenant, upon written notice from
Landlord, will, at the Tenant's sole cost and expense, resist or defend such
action or proceeding including, if Landlord shall so elect, the institution of
any counterclaim arising out of any transaction or occurrence that is the
subject matter of the opposing party's claim, by counsel approved by Landlord in
writing, which approval shall not be unreasonably withheld or delayed. The
Tenant shall satisfy, pay and discharge any and all judgments, orders and
decrees which may be recovered against Landlord, Landlord's affiliates or the
Demised Premises in any such actions, suits or proceedings. The Tenant's
indemnity obligations under this Article and elsewhere in this Lease arising
prior to the termination or assignment of this Lease shall survive termination
or assignment.
(c) Each of the Indemnified Parties shall reasonably cooperate with the
Tenant in the defense of any such action or proceeding, and will not settle such
action, provided that the Tenant give to such Indemnified Party satisfactory
assurances that it can and will satisfy, pay and discharge any and all judgments
which may be recovered in such action or proceeding, and provided further that
such action or proceeding shall not (i) subject such Indemnified Party to the
risk of criminal sanctions, or (ii) jeopardize the interest of such Indemnified
Party in the Demised Premises and/or the hotel. Notwithstanding the foregoing,
such Indemnified Party shall have the right to settle any such action or
proceeding at any time, provided that it releases the Tenant from any further
indemnification obligation hereunder with respect to such settlement.
(d) Landlord shall pay and discharge, and shall defend, indemnify and
hold the Tenant (and the Tenant's general partners and their parent company,
their related, affiliated and subsidiary companies, and the officers, directors,
agents, employees, representatives, successors and assigns of each) (herein the
"Tenant Indemnitees"), harmless from and against all obligations, settlements,
liabilities, losses, damages, injunctions, suits, actions, proceedings, fines,
penalties, claims, liens, demands, costs, charges and expenses of every kind or
nature, including, without limitation, reasonable fees of attorneys and other
professionals, and disbursements, which may be imposed on, incurred by or
asserted against such Tenant Indemnitees (but not against any of the same to the
extent that a negligent, or willful, act or omission of any such Tenant
Indemnitee), which are not covered by the policies of insurance required to be
obtained by the Tenant hereunder, and arising directly or indirectly from or out
of any gross negligence or willful misconduct on the part of the Landlord or its
Affiliates, any failure of the Landlord to comply with any laws, ordinance,
requirements, orders, directions, rules or regulations of any governmental
authority or any work, construction, demolition or other thing done in, on, or
about the Buildings or the Land, or any part thereof, or any street, alley,
sidewalk, garden, curb, passageway or space adjacent thereto, pursuant to the
Land Development Agreement.
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19. Easements; Use of Utilities. Subject to the provisions of Article 5,
Landlord shall not be required to furnish to the Tenant any services of any kind
whatsoever during the Term (including, without limitation, water, steam, heat,
fuel, gas, hot water, electricity, light and power). The Tenant independently
shall subscribe to all utility services which are necessary for all of its
requirements with respect to its operations of the Buildings and the hotel
business conducted therein. Landlord and the Tenant shall grant such easements
to the foregoing specified entities as are reasonably necessary to enable them
to provide utility services to the Demised Premises as necessary for development
of the Project in accordance with the Plans. The Tenant shall pay all bills for
utility services rendered to it on or before the date due in accordance with the
payment instructions contained in such bills; provided, however, that if any
utilities are furnished to the Tenant through Landlord's meters, the Tenant
shall reimburse Landlord for the cost of such utilities. If the Tenant should
construct an improvement which materially encroaches upon, or should landscape
or otherwise improve, a utility or other easement reserved by Landlord
hereunder, whether with or without the consent of Landlord, the Tenant shall
remove the same to the extent necessary to effect the maintenance, repair or
replacement of any utilities within the easement and shall restore the same, all
it its cost and expense.
20. Condemnation. (a) If the Demised Premises and the Buildings shall be
taken or condemned for any public or quasi-public use or purpose, by right of
eminent domain or by purchase in lieu thereof, or if a portion of the Demised
Premises or the Buildings shall be so taken or condemned, such that the portion
remaining is not sufficient and suitable, in the Tenant's reasonable judgment
(subject, however, to the rights of any Permitted Leasehold Mortgagee
hereunder), for the operation of a first class destination hotel and convention
center, then, at the option of the Tenant, this Lease shall cease and terminate
as of the date on which the condemning authority takes possession. The Tenant
shall notify Landlord of such determination made in its reasonable judgment
within ninety (90) days after the date on which title vests in the condemnor
and, if such notice is not timely given, the Tenant shall be deemed to have
waived such termination right.
(b) If a portion of the Demised Premises and the Buildings (or only of
the Demised Premises or only of the Buildings) is taken, and the remaining
portion can, in the Tenant's reasonable judgment (subject, however, to the
rights of any Permitted Leasehold Mortgagee hereunder), be adapted and used for
operation of a first class destination hotel and convention center, or otherwise
adopted to permit the conduct of the Tenant's operations in accordance with all
of the terms of this Lease, then this Lease shall continue in full force and
effect.
(c) If this Lease terminates due to a taking or condemnation, in
accordance with the terms of this Article 20 and subject to applicable terms of
Article 9, the entire award for the Demised Premises and the Buildings or the
portion thereof so taken shall be apportioned between Landlord and the Tenant,
as of the day immediately prior to the vesting of title in the condemnor, as
follows:
(i) First, Landlord shall receive the then fair market value of the
Demised Premises so taken or condemned considered as vacant, unimproved, and
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unencumbered, together with the discounted value of the Buildings (less a
reasonable estimate of what the Term-end Payment would be), discounted from the
stated end of the then-current Term.
(ii) Second, the Tenant shall be entitled to the then fair market
value of its interest under this Lease and in the Buildings, less the discounted
value of the Buildings as allocated to Landlord, together with any and all
business damages suffered by the Tenant (subject, however, to the rights of any
Permitted Leasehold Mortgagees therein); and
(iii) Landlord and the Tenant shall each receive one-half (1/2) of
any remaining balance of the award.
(d) If this Lease does not terminate due to such taking or
condemnation, (i) the Tenant shall be entitled to the entire award to the extent
required, pursuant to the terms of this Lease, for the restoration of the
Demised Premises and the Buildings, and (ii) out of the portion of the award not
applied to restoration, (x) Landlord shall be entitled to the portion of the
award allocated to the fair market value of the Demised Premises which is so
taken, considered as vacant and unimproved, (y) the Tenant shall have the right
(subject, however, to the rights of the Permitted Leasehold Mortgagees) to the
amount by which the value of the Tenant's interest in the Buildings and the
value of the Tenant's Demised Premises were diminished by the taking or
condemnation, and (z) Landlord and the Tenant shall each receive one-half (1/2)
of any remaining balance of the award. If this Lease does not terminate due to a
taking or condemnation, then: (i) the Tenant shall, with due diligence, restore
the remaining portion of the Demised Premises and the Buildings in accordance
with the provisions of Article 2 hereof; (ii) the entire proceeds of the award
shall be deposited and treated in the same manner as insurance proceeds are to
be treated under Article 9 until the restoration has been completed and the
Tenant and Landlord have received their respective shares thereof pursuant to
this paragraph (d); (iii) if the award is insufficient to pay for the
restoration, the Tenant shall be responsible for the remaining cost and expense;
and (iv) the Base Rent payable by Tenant shall be adjusted proportionately based
upon the proportion that the amount received by the Landlord in respect of Land
taken, if any, bears to the total fair market value of the overall Land at that
time.
(e) If the temporary use (but not title) of the Demised Premises and/or
the Buildings, or any part thereof, is taken, this Lease shall remain in full
force and effect, and there shall be no abatement of any amount or sum payable
by or other obligation of the Tenant hereunder. The Tenant shall receive the
entire award for any such temporary taking to the extent it applies to the
period prior to the end of the Term (subject to the rights of the Permitted
Leasehold Mortgagees); and Landlord shall receive the balance of the award.
(f) If Landlord and the Tenant cannot agree in respect of any matters
to be determined under this Article, a determination shall be requested of the
court having jurisdiction over the taking, and if said court will not accept
such matters for determination, either party may have the matter submitted to
arbitration pursuant to Section 49 of this Lease.
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(g) For purposes of this Article, any Furnishings taken or condemned
shall be deemed to be a part of the Buildings, and the provisions hereof shall
be applicable thereto.
(h) Notwithstanding any provision to the contrary, the Tenant shall be
entitled to any separate award or payment for moving and/or relocation.
21. Encumbrances by Subtenants. The Tenant shall not knowingly permit or
suffer any subtenant to encumber such subtenant's leasehold interest without the
prior written approval of Landlord in each instance.
22. No Abatement of Rent. Except as otherwise specifically provided in this
Lease, no abatement, diminution or reduction of any Rent, charges, compensation
or other amount payable by the Tenant shall be allowed to the Tenant or any
person claiming under the Tenant, and no abatement, diminution or reduction of
the Tenant's other obligations hereunder shall be allowed to the Tenant, under
any circumstances whatsoever including, without limitation, inconvenience,
discomfort, interruption of business or otherwise by virtue of, or arising out
of: (a) the making of alterations, changes, additions, improvements or repairs
to the Buildings; (b) any present or future governmental laws, ordinances,
requirements, orders, directions, rules or regulations; (c) restoration or the
Buildings after damage, destruction or partial condemnation; or (d) any other
cause or occurrence.
23. No Representations. The Tenant acknowledges that it has examined the
Land and that except as provided in the Land Development Agreement, this Lease,
the Hotel Development Agreement, or the Related Agreements it is not relying
upon any representation or warranty, either express or implied, made by Landlord
or any of Landlord's Affiliates or any other person or entity in any way
affiliated with Landlord, or being or claiming to be an agent, employee or
servant of Landlord, with respect to: the physical condition of the Land, the
ground, earth or subsoil conditions; the financial reports, data, analyses or
projections that concern the proposed development, operation or projected
occupancy of the Convention Hotel; the proposed construction of, or any
agreement not to construct, any other facilities or amenities adjacent to, or in
proximity to, the Land; any zoning or other applicable Legal Requirements; or
any other matter or thing in respect of the subject matter of this Lease and/or
the Exhibits hereto or the transaction and development contemplated hereby, by
the Hotel Development Agreement or the Related Agreements. Prior to the
commencement of any construction on the Land, the Tenant conducted or shall
conduct such tests of the subsurface and soil conditions as it deemed
appropriate and is fully satisfied therewith; Landlord shall have no liability
because of, or as a result of, the existence of any subsurface or soil
condition, either on the Land or land adjacent thereto, which might affect the
Tenant's construction.
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24. Use of Names. Neither this Lease, nor anything contained in this Lease,
shall be deemed to grant to the Tenant any rights whatsoever to, and the Tenant
hereby covenants that it will not use, the name "Xentury City," or any
combination thereof permutation or related name, without the prior written
consent of Landlord. Similarly, neither this Lease, nor anything contained in
this Lease, shall be deemed to grant to Landlord any rights whatsoever to, and
the Landlord hereby covenants that it will not use, the names, trademarks,
service marks, copyrights, call letters or tradenames of GEC or its Affiliates,
or images, drawings, plans, renderings or photographs of the Project, including
without limitation the names "Opryland Hotel," "Grand Old Opry" or "Opry" or any
derivative, combination or permutation thereof or related name, without the
express prior written consent of GEC or other party with the legal right to use
and allow further use of the subject name (such consent to be required for each
proposed use). For purposes hereof written consent, to be effective, must be
provided in the case of GEC or its Affiliates by the President of the Opryland
Lodging Group or other officer designated in writing by the President of GEC, or
by at least a corporate Vice President, or equivalent, of any other affected
entity. This Section 24 shall survive the expiration or any early termination of
this Lease, and the sole remedies for any violation of this Section absent an
intentional and continuing disregard of a formal written notice of default and
demand specifically referencing the provisions of this Section shall be limited
to the right to obtain and enforce injunctive relief and to obtain damages
consistent with applicable or analogous federal or state laws governing the
remedies for violation of comparable intellectual property rights, together with
the right of the prevailing party in any enforcement or other action by the
parties in connection with this Section 24 to recover its reasonable attorneys',
experts' and paralegals' fees and costs pursuant to Section 35 hereof.
25. No Waiver. This Lease shall not be modified except by a written
instrument executed by Landlord and the Tenant. No release, discharge or waiver
of any provision hereof shall be enforceable against, or binding upon, Landlord
or the Tenant unless in writing and executed by Landlord or the Tenant, as the
case may be. Neither the failure of Landlord or the Tenant to insist upon a
strict performance of any of the agreements, terms, covenants and conditions
hereof, nor the acceptance of rent or any other payment or sum by Landlord with
knowledge of a breach of this Lease by the Tenant in the performance of its
obligations hereunder, shall be deemed a waiver of any rights or remedies that
Landlord or the Tenant may have or a waiver of any subsequent breach or default
in any of such agreements, terms, covenants and conditions.
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26. Estoppel Certificate. Either party shall, within ten (10) days after a
request from time to time made by the other party and without charge, give a
certification in writing to any person, firm or corporation reasonably specified
by the requesting party stating: (a) that this Lease is then in full force and
effect and unmodified or, if modified, stating the modifications; (b) that as
far as the maker of the certificate knows, the Tenant is not in default in the
payment of any Rent or other sum hereunder, or if in default, stating such
default; (c) that so far as the maker of the certificate knows, neither party is
in default in the performance or observance of any other covenant or condition
to be performed or observed under this Lease or, if either party is in default,
stating such default; (d) that so far as the maker of the certificate knows, no
event has occurred which authorized, or with the lapse of time will authorize,
Landlord or the Tenant to terminate this Lease or, if such event has occurred,
stating such event; (e) that so far as the maker of the certificate knows,
neither party has any offsets, counterclaims or defenses or, if so, stating
them; (f) the dates to which amounts payable by the Tenant have been paid; and
(g) any other matters which may be reasonably requested by the requesting party.
27. Title to the Buildings and Furnishings. The Tenant shall, at all times
during the Term have title to the Buildings (subject to Landlord's reversionary
interests).
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28. Force Majeure. If the performance by either of the parties of its
obligations under this Lease (excluding monetary obligations) is delayed or
prevented in whole or in part by any law, rule, regulation, order or other
action adopted or taken by any federal, state or local governmental authority
(and not attributable to an act or omission of said party), or by any Acts of
God, fire or other casualty, floods, storms, explosions, accidents, epidemics,
war, civil disorders, strikes or other labor difficulties, shortages or failure
of supply of materials, labor, fuel, power, equipment, supplies or
transportation, or by any other cause not reasonably within said party's
control, whether or not specifically mentioned herein, said party shall be
excused, discharges and released of performance to the extent such performance
or obligation (excluding any monetary obligation) is so limited or prevented by
such occurrence without liability of any kind. No allowance for delay shall be
made under this Article unless a notice, specifying the cause of such delay, is
delivered by the delayed party to the other party within fifteen (15) days of
the occurrence causing the delay. Nothing herein contained shall be construed as
requiring either of the parties to accede to any demands of, or to settle any
disputes with, labor or labor unions, suppliers or others not a party hereto
which that party considers unreasonable. Both parties hereby agree that, except
if and to the extent otherwise specifically provided in this Lease, (i) the
extension of time provided for in this Article shall be in lieu of all damages
and other remedies which might otherwise arise by reason of such delay, and (ii)
nothing contained in this Article shall be deemed to extend or postpone the
dates for commencement of, or payment of, Rent or any other sum or amount due
from the Tenant to the Landlord hereunder or under any of the other Related
Agreements.
29. Notices. (a) Any notice, request, consent, approval, demand, response
or other communication (collectively "Notice") required or permitted under this
Lease must be in writing, and shall be deemed given if delivered in a sealed
envelope by hand, or if sent by United States registered or certified mail,
postage prepaid, return receipt requested, to the following addresses:
If to Landlord: 7575 Dr. Phillips Boulevard, Suite 260
Orlando, Florida 32819
Attn.: Chief Executive Officer
with a copy to: Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, Florida 32801
Attn.: Nicholas A. Pope, Esq.
If to the Tenant: c/o Gaylord Entertainment Company
One Gaylord Drive
Nashville, Tennessee 37214
Attn.: President, Lodging Group
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with a copy to; Sherrard & Roe PLC
424 Church Street, Suite 2000
Nashville, Tennessee 37219
Attn.: Thomas J. Sherrard, Esq.
or such other address as may be designated by either party by written notice to
the other. Except as otherwise provided in this Lease, every Notice shall be
deemed to have been given or served upon actual receipt thereof by either such
personal delivery or United States mails. Accordingly, a Notice shall not be
effective until actually received.
(b) A copy of each Notice given by Landlord to the Tenant shall be
contemporaneously delivered to each Permitted Leasehold Mortgagee which shall
have theretofore satisfied the requirements of the first two sentences of
Paragraph 16(c) hereof. Notice to the Tenant shall not be effective until a
duplicate thereof is sent to each Permitted Leasehold Mortgagee that is entitled
thereto.
(c) The Tenant shall immediately send to Landlord, in the manner
prescribed above for the giving of Notice, copies of each Notice given by it to
any Permitted Leasehold Mortgagee or received by it from any Permitted Leasehold
Mortgagee, and copies of each Notice which is received with respect to the Land,
the Buildings, the Furnishings, or the operation of the Convention Hotel from
any governmental authorities, fire regulatory agencies and similarly constituted
bodies, and copies of its responses thereto.
(d) Notwithstanding anything in this Article to the contrary, any
notice mailed to the last designated address of any entity to which a Notice may
be or is required to be delivered pursuant to this Lease shall not be deemed
ineffective if actual delivery cannot be made due to a change of address of the
person or party to which the Notice is directed or the failure or refusal of
such person or party to accept delivery of the Notice.
(e) Whenever a request for approval is given pursuant to a provision
of this Lease which states that approval shall be deemed given unless the
request is responded to within a given period of time and/or unless reasons are
stated in any disapproving response, such deemed approval shall not occur unless
such request shall conspicuously state at the top thereof: "FAILURE TO RESPOND
TO THIS REQUEST WITHIN ___ DAYS (AND TO STATE REASONS FOR ANY DISAPPROVAL) SHALL
CONSTITUTE AUTOMATIC APPROVAL OF THIS REQUEST PURSUANT TO PARAGRAPH ___ OF THE
OPRYLAND HOTEL - FLORIDA GROUND LEASE DATED MARCH 1, 1999, BETWEEN XENTURY CITY
DEVELOPMENT COMPANY, L.C. AND OPRYLAND HOTEL - FLORIDA LIMITED PARTNERSHIP."
30. Time. Time is of the essence in every particular of this Lease,
including, without limitation, obligations for the payment of money.
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31. Interest. Except as to those instances in respect of which a different
interest rate is specifically provided for in this Lease or the applicable
Related Agreement, as the case may be, all arrearages in the payment of any sum
due to Landlord under the provisions of this Lease or the Related Agreements,
after expiration of all applicable notice and grace periods provided for herein
or in the repaying to Landlord of any sum which Landlord may have paid to cure
or prevent a default of the Tenant (as provided elsewhere herein), shall bear
interest from the date due until paid at the lesser of (i) eighteen percent
(18%) per annum, or (ii) the highest rate of interest then allowable pursuant to
Section 687.02, Florida Statutes (or its successor).
32. Successors and Assigns. The agreements, terms, covenants and conditions
herein shall bind and inure to the benefit of Landlord and the Tenant and, to
the extent permitted herein, their respective successors and assigns. Unless the
context otherwise requires, the term "entity" as used in this Lease is intended
to include natural persons.
33. Recordation of Lease. This Lease shall not be recorded; instead, a
short form memorandum thereof, in form and substance reasonably satisfactory to
Landlord and Tenant, which form shall include, without limitation, the
provisions of Article 46 of this Lease, will be recorded in the public records
of Osceola County, Florida, and Tenant will pay the recording costs. In the
event of a discrepancy between the provisions of this Lease and such short form
thereof, the provisions of this Lease shall prevail. The Memorandum of Lease
executed and recorded pursuant hereto shall include a joinder of the Ground
Lessor providing that the Ground Lessor will honor the Tenant's rights under
this Lease in the event and regardless of any default under or termination of
the Master Ground Lease identified in Section 48 below provided only that Tenant
shall attorn to the Ground Lessor and that Tenant shall continue to perform its
obligations under and in accordance with the terms and conditions of this Lease.
34. Warranty of Title and Covenant of Quiet Enjoyment. Landlord represents
and warrants that (i) it is the ground lessee of the Land under the terms of the
Master Ground Lease identified in Section 48 below subject to the easements,
restrictions, covenants and other matters of record as of the date hereof or as
would be disclosed by current survey and inspection of the Premises; (ii) it has
full right to lease the Land for the term set out herein; and (iii) it has no
knowledge of any condemnation or threat of condemnation affecting any portion of
the Demised Premises. So long as Tenant keeps and performs all of the covenants
and conditions on its part to be kept and performed under this Lease, Landlord
covenants that Tenant shall have quiet and undisturbed possession and enjoyment
of the Demised Premises subject, nevertheless to the provisions of this Lease,
and the matters set forth on the Exhibits and Schedules hereto.
35. Costs and Attorneys' Fees. If either party shall bring an action to
recover any sum due hereunder, or for any breach hereunder, and shall obtain a
judgment or decree in its favor, the court may award to such prevailing party
its reasonable costs and reasonable attorneys' fees and disbursements,
specifically including reasonable attorneys' fees incurred in connection with
any appeals (whether or not taxable as such by law).
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36. Entire Agreement. This Lease contains the entire agreement between the
parties with respect to the subject matter hereof and, except as otherwise
provided herein, can only be changed, modified, amended or terminated by an
instrument in writing executed by the parties. It is mutually acknowledged and
agreed by Landlord and the Tenant that, except as specifically referred to
herein, there are no verbal or written agreements, representations, warranties
or other understandings affecting the subject matter hereof; and that the Tenant
hereby waives, as a material part of the consideration hereof, all claims
against Landlord for rescission, damages or any other form of relief by reason
of any alleged covenant, warranty, representation, agreement or understanding
not contained in this Lease, the Hotel Development Agreement or the Related
Agreement.
37. Applicable Law. This Lease shall be governed by, and construed in
accordance with, the laws of the State of Florida.
38. Waiver of Jury Trial. Landlord and the Tenant hereby waive trial by
jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the Tenant's use or occupancy of the Demised Premises
or the Buildings or any claim of injury or damage. Each of the parties hereby
expressly and irrevocably consents to the jurisdiction of the Circuit Court in
and for Osceola County, Florida, or if such Circuit Court shall not have
jurisdiction over the subject matter of such action, proceeding, counterclaim,
cross claim or third-party claim, then to such other court sitting in said
county as shall have subject matter jurisdiction with respect thereto.
39. Landlord May Cure the Tenant's Defaults. If the Tenant shall default in
the performance of any term, covenant or condition to be performed on its part
hereunder, Landlord may, after notice to the Tenant and a reasonable time to
perform after such notice (or without notice if, in Landlord's reasonable
opinion, an emergency exists), perform the same for the account and at the
expense of the Tenant. If, at any time and by reason of such default, Landlord
is compelled to pay, or elects to pay, any sum or money or do any act which will
require the payment of any sum of money, or is compelled to incur any expense in
the enforcement of its rights hereunder or otherwise, such sum or sums shall be
deemed additional rent hereunder and, together with interest thereon pursuant to
Article 31 hereof, shall be repaid to Landlord by the Tenant promptly when
billed therefor, and Landlord shall have the same rights and remedies to levy in
respect thereof as Landlord has in respect of the Rent herein reserved.
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40. Waiver of Right of Redemption. The Tenant, for itself and for all
persons claiming by, through or under it, hereby expressly waives any and all
rights which are or may be conferred upon the Tenant by any present or future
law to redeem the Land, the Buildings and the Furnishings after any Reversion or
termination of this Lease or after re-entry upon the Demised Premises by the
Landlord or after any warrant to dispossess or judgment in ejectment or summary
proceedings. If Landlord shall acquire possession of the Land, the Buildings and
the Furnishings by summary proceedings, or in any other lawful manner without
judicial proceedings, it shall be deemed a re-entry within the meaning of the
word as used in this Lease.
41. Captions. The captions are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope or intent of, or
affect, this Lease. References in this Lease to a given Article (e.g., Article
4) shall be construed as a reference to the entirety of such Article; references
to any part of an Article [e.g., Paragraph 1 of Article 4 or Paragraph 4(a)],
shall be construed to include all subparagraphs contained in such part.
42. Brokerage. Landlord and the Tenant hereby represent to each other that
they have not employed any brokers in the negotiation and consummation of the
transaction set forth in this Lease, but have negotiated directly with each
other.
43. Consent or Approval of Landlord. (a) Subject to the provisions of
paragraphs b. and c. of this Article, whenever the consent or approval of
Landlord is referred to or is a condition precedent to the taking of any action
by the Tenant, such consent or approval shall not be unreasonably withheld or
delayed, and the failure of Landlord to notify the Tenant that it does not give
its consent or approval within thirty (30) days after receipt of any request by
the Tenant shall be deemed to constitute such consent or approval. Whenever the
Tenant is required under this Lease to do anything to meet the satisfaction or
judgment of Landlord, the reasonable satisfaction or judgment of Landlord shall
be deemed sufficient.
(b) The foregoing provisions of this Article shall not apply in any
instance where the provisions of this Lease expressly state that the provisions
of this Article do not apply or where the provisions of this Lease expressly
state that such consent, approval or satisfaction are subject to the sole or
absolute discretion or judgment of Landlord, and in each such instance
Landlord's approval or consent may be unreasonably withheld or unreasonable
satisfaction or judgment may be exercised by Landlord, as applicable because, as
the Tenant hereby acknowledges, Landlord and Landlord's Affiliates have very
substantial interests in maintaining the image, reputation, aesthetic
appearance, and quality of, and harmony among, the properties owned by them
which include and surround the area of the Land, and that, accordingly, the use,
development, maintenance and operation of the Land, the Buildings, the
Furnishings and the Convention Hotel, must be, in certain instances, subject to
the approval of Landlord in its sole and absolute discretion.
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(c) Notwithstanding the provisions of Paragraph (b) of this Article,
if Landlord unreasonably or arbitrarily withholds its consent, approval or
acknowledgment of satisfaction or judgment in respect of any matter, Landlord
shall have no liability in connection with such withholding or delay except that
if same is in respect of matters governed by paragraph (a) of this Article, (i)
Landlord shall be deemed to have granted such consent or approval if a court
finally determines that Landlord withheld same unreasonably, and (ii) if such
court determines that Landlord acted in bad faith in withholding such consent,
the foregoing exculpatory language contained in this paragraph (c) shall not
apply.
44. Intentionally Omitted.
45. Limitation of Landlord's Liability. It is specifically understood and
agreed that there shall be absolutely no personal liability on the part of
Landlord or on the part of any of Landlord's Affiliates in respect of any of the
terms, covenants and conditions of this Lease or of the Related Agreements,
other than those which expressly state that the provisions of this Article do
not apply to them (and where the provisions of this Article do not apply,
Landlord shall be personally liable), and the Tenant shall look solely to the
interest of Landlord in the Demised Premises for the satisfaction of each and
every remedy of the Tenant in the event of any breach or default by Landlord or
by any successor in interest of any of the terms, covenants and conditions of
this Lease or of the Related Agreements to be performed by Landlord, other than
those which expressly state that the provisions of this Article do not apply to
them (and where the provisions of this Article do not apply, there shall be
personal liability on the part of Landlord). The term "Landlord" as used in this
Lease shall mean the ground lessee from time to time under the Master Ground
Lease identified in Section 48 below, or if the Master Ground Lease ever
terminates the owner from time to time of the fee simple title to the Land. From
and after any conveyance of the Demised Premises by Landlord, except if and to
the extent that the conveying Landlord is personally liable for an obligation
pursuant to the terms of this Lease, the conveying Landlord shall have no
obligation or liability of any kind under this Lease for obligations arising
from and after such conveyance if and to the extent that the entity receiving
the conveyance shall assume the obligations of Landlord thereafter to be
performed under this Lease.
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46. Fee Mortgage. Each and every Fee Mortgage shall be and is hereby made,
subject and subordinate in all respects (i) to this Lease, and all amendments
and modifications thereto and to any Novation Ground Lease granted pursuant to
the provisions of paragraph 16(c)(v) and to any amendments and modifications
thereto, provided that all such amendments and modifications to this Lease or to
any such Novation Ground Lease are made prior to the date of such Fee Mortgage,
and (ii) to any and all claims of the Tenant arising under this Lease, any such
Novation Ground Lease, and/or the Related Agreements, or under any modifications
of the foregoing which are modifications made prior to the date of such Fee
Mortgage. The holder of a Fee Mortgage is referred to herein as a "Fee
Mortgagee", the Fee Mortgage that is prior in lien among those in effect is
herein referred to as the "First Fee Mortgage", and the holder of the First Fee
Mortgage is herein referred to as the "First Fee Mortgagee". Landlord shall use
good faith efforts to provide written notice to Tenant of the existence of each
Fee Mortgage as the same is executed and becomes effective, but Landlord shall
not be liable for inadvertent failure to provide any such notice and Tenant's
remedies for any failure to provide notice hereunder shall not include
termination of this Lease and shall be limited to recovering any actual damages
resulting from any failure by Landlord to provide notice hereunder.
Notwithstanding that the subordination of each Fee Mortgage to this Lease and to
all interests of Tenant and parties claiming by, through or under Tenant is
automatic and absolute, this Section 46 shall constitute a covenant running with
the title to the Land obligating each Fee Mortgagee to provide a formal written
acknowledgment of such subordination and agreement not to disturb Tenant absent
default by Tenant upon written request of Tenant, in a form reasonably
acceptable to Tenant and such Fee Mortgagee, and Landlord hereby covenants to
use its diligent best efforts to obtain such an acknowledgment from each Fee
Mortgagee as so requested, providing only that as a condition thereof Tenant and
each Permitted Leasehold Mortgagee of Tenant shall in turn provide an attornment
agreement in favor of each such Fee Mortgagee agreeing to attorn to the Fee
Mortgagee in the that such Fee Mortgagee shall succeed to the Landlord's
interests hereunder. The foregoing notice requirements shall also apply to any
assignment of this Lease by Landlord and the Landlord's assignee and Tenant
shall execute an attornment and acceptance agreement reasonably acceptable to
each whereby Tenant shall attorn to Landlord's successor and such successor
shall accept Tenant as the Tenant hereunder.
47. No Merger. There shall be no merger of this Lease or the leasehold
estate created hereby with the fee estate in the Demised Premises or any part
thereof by reason of the same party acquiring or holding, directly or
indirectly, this Lease and the leasehold estate created hereby or any interest
in this Lease or in such estate created hereby as well as the fee estate in the
Demised Premises.
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48. Master Ground Lease. Landlord represents that it is the ground lessee
of the Demised Premises under the terms of that certain Xentury City GP Ground
Lease dated and entered into of even date herewith by and between GP Limited
Partnership, a Florida limited partnership which is the owner of the Demised
Premises, as the "Ground Lessor," and Landlord, as the ground lessee thereunder
(the "Master Ground Lease"), that the Master Ground Lease is in full force and
effect and has not been amended, and that the Master Ground Lease is currently
in good standing with all sums due and payable from Landlord thereunder having
been paid in full.
49. Arbitration. (a) Any dispute arising under any provisions of this Lease
that specifically provides for resolution of such dispute by arbitration may be
referred to arbitration by either party delivering to the other written notice
(an "Arbitration Notice") specifying the name and address of the arbitrator
designated by it, the nature of the dispute, the amount (if any) involved and
the qualifications of such arbitrator necessary to meet the requirements
hereinafter imposed. Within seven (7) days after delivery of an Arbitration
Notice by one party, the other party shall deliver a response (a "Response to
Arbitration Notice") specifying the name and address of the arbitrator
designated by it and the qualifications of such arbitrator necessary to meet the
requirements hereinafter imposed. If a party fails to deliver its Response to
Arbitration Notice within such seven (7) day period, the other party may request
the American Arbitration Association to appoint the second arbitrator. Within
five (5) days after delivery of a Response to Arbitration Notice (or appointment
of the second arbitrator by the American Arbitration Association), the two
arbitrators appointed shall select a third arbitrator. If the two initial
arbitrators cannot agree upon a third within such five (5) day period they shall
immediately notify the parties hereto, whereupon the third arbitrator shall be
appointed upon the application of the arbitrators or of either party, by the
office of the American Arbitration Association located closest to the Land. In
the case of an arbitration in respect of and pursuant to Article 6 hereof, each
arbitrator shall be a Certified Public Accountant with at least ten (10) years'
experience in the field of hotel accounting. In the case of an arbitration in
respect of and pursuant to Article 14 hereof, each arbitrator shall be a
Certified Hotel Administrator or shall be a person who has earned a college
degree in "Hotel Administration" from an accredited college or university with
such a degree program, in each case with at least ten (10) years' experience in
the first of first class hotel management. The third arbitrator shall be a
neutral person with no financial or personal interest in the result of the
arbitration or any present relationship with the parties or their counsel. The
arbitrators appointed as aforesaid shall convene in Orlando, Florida within five
(5) days after the appointment of the third arbitrator and shall render their
decision and award upon the concurrence of at least two of their number, as
promptly as possible, and in any event, within thirty (30) days after the
appointment of the third arbitrator. Such decision and award shall be in writing
and counterpart copies thereof shall be delivered to each of the parties. In
rendering their decision and award, the arbitrators shall not add to, subtract
from, or otherwise modify the provisions of this Lease. The decision and award
of the arbitrators shall be final and judgment may be had on the decision and
the award so rendered.
(b) The following provisions shall apply to any arbitration instituted
pursuant to this Article:
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(i) The arbitration shall be determined in accordance with the
commercial Arbitration Rules then in use by the American Arbitration
Association, as amended by this Article (or, if such Association shall not then
be in existence, such other organization, if any, as shall then become the
successor of said Association or if there be no successor, pursuant to
applicable law of the State of Florida);
(ii) The arbitrators shall not be empowered to call for any
pre-hearing conference, pre-hearing testimony or other pre-hearing examination
of either party and shall limit requests by the parties for the production of
documents and other records to only those necessary to determination of the
issue before them;
(iii) Each party shall pay the fees and expenses of the arbitrator
appointed by it and the fees and expenses of the third arbitrator shall be borne
by the parties equally. The arbitrators may award legal fees and costs in
connection with the arbitration; and
(iii) The arbitrators shall have and are hereby granted full power
and authority to order injunctive relief or such other mandatory relief as may
be provided for hereunder or otherwise available to the parties under applicable
law.
(c) The application for, or pendency of, any arbitration shall not
extend the times for performance by the parties of their respective obligations
under this Lease, except as otherwise provided in paragraph 15(a)(iv) herein, or
limit or delay the right of any party to seek temporary injunctive relief
(during the pendency of such arbitration) from the appropriate court with regard
to the matter being arbitrated. The right of Landlord and/or the Tenant to
submit a dispute to arbitration is limited to disputes arising under those
provisions of this Lease which specifically provide for arbitration.
50. Exhibits. The Exhibits and Schedules to this Lease, as designated
herein and annexed hereto, shall, except as otherwise provided in this Lease,
each be deemed to form an integral part of this Lease and to be incorporated
herein as if herein set out in full.
51. Counterparts. This Lease may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
52. Construction of Agreement. This Lease has been fully reviewed and
negotiated by the parties hereto and their respective counsel. Accordingly, in
interpreting this Lease, no weight shall be placed upon which party hereto or
its counsel drafted the provision being interpreted.
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IN WITNESS WHEREOF, Landlord and the Tenant have caused this Lease to
be duly executed the day and year first above written.
Signed, sealed and delivered LANDLORD:
in the presence of:
XENTURY CITY DEVELOPMENT COMPANY, L.C.,
a Florida limited liability company
Witness:__________________________
(Print Name) By: ___________________________________
James W. Thomas, Manager
Witness: _________________________
(Print Name)
STATE OF _________________ )
COUNTY OF ________________ )
The foregoing Opryland Hotel - Florida Ground Lease was executed before
me the undersigned authority this ____ day of ___________________, 1999, by
James W. Thomas, as Manager of XENTURY CITY DEVELOPMENT COMPANY, L.C., a Florida
limited liability company, on behalf of the Landlord. He is personally known to
me.
(NOTARY SEAL) Notary Public
Print Name:____________________________
Commission No.:________________________
Commission Expires:____________________
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Signed, sealed and delivered TENANT:
in the presence of:
OPRYLAND HOTEL - FLORIDA LIMITED
PARTNERSHIP, a Florida limited
partnership
By: Opryland Hospitality, Inc., a
Tennessee corporation qualified to
do business in Florida, General
Partner
Witness: ________________________
(Print Name) By: _____________________________
Name:____________________________
Witness:_________________________ Title:___________________________
President
(Print Name)
(CORPORATE SEAL)
STATE OF _________________ )
COUNTY OF ________________ )
The foregoing Opryland Hotel - Florida Ground Lease was executed before
me the undersigned authority this ____ day of March, 1999, by
___________________________, as __________ President of Opryland Hospitality,
Inc., a Tennessee corporation qualified to do business in Florida, as General
Partner of OPRYLAND HOTEL - FLORIDA LIMITED PARTNERSHIP, a Florida limited
partnership, on behalf of the Tenant. He is personally known to me.
(NOTARY SEAL) Notary Public
Print Name:____________________________
Commission No.:________________________
Commission Expires:____________________
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