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Sandpiper Golf Course
Goleta, California
L E A S E
SANDPIPER-GOLF TRUST, LLC
LANDLORD
AND
SANDPIPER AT SBCR, LLC
TENANT
DATED AS OF MARCH 6, 1998
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TABLE OF CONTENTS
PAGE
ARTICLE 1
LEASED PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2
DEFINITIONS, RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 3
TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.1 Initial Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.2 Extension Options . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.3 Right to Extend Resulting From Environmental
Remediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.4 Right to Extend for an Additional Twenty (20) Years . . . . . . . . . . 17
3.5 Right of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 4
RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.1 Rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.2 Increase in Initial Base Rent . . . . . . . . . . . . . . . . . . . . . 20
4.3 Increase in Base Rent . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.4 Percentage Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.5 Annual Reconciliation of Percentage Rent. . . . . . . . . . . . . . . . 21
4.6 Record-keeping. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.7 Additional Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.8 Late Payment of Rent. . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.9 Net Lease; Capital Replacement Reserve. . . . . . . . . . . . . . . . . 22
4.10 Adjustment in Annual Base Rent for Sale of Adjacent
Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 5
ADDITIONAL SECURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.1 Security Deposit. Intentionally Omitted. . . . . . . . . . . . . . . . 23
5.2 Additional Security . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.3 Landlord's Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 6
IMPOSITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.1 Payment of Impositions. . . . . . . . . . . . . . . . . . . . . . . . . 24
6.2 Information and Reporting . . . . . . . . . . . . . . . . . . . . . . . 24
6.3 Prorations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.4 Refunds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.5 Utility Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.6 Assessment Districts. . . . . . . . . . . . . . . . . . . . . . . . . . 25
(i)
ARTICLE 7
TENANT WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.1 No Termination, Abatement, Etc. . . . . . . . . . . . . . . . . . . . . 25
7.2 Condition of the Property . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE 8
OWNERSHIP OF TANGIBLE PERSONAL PROPERTY. . . . . . . . . . . . . . . . . . . . . . 27
8.1 Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.2 Tenant's Personal Property. . . . . . . . . . . . . . . . . . . . . . . 27
8.3 Tenant's Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.4 Landlord's Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 9
USE OF PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.1 Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.2 Specific Prohibited Uses. . . . . . . . . . . . . . . . . . . . . . . . 28
9.3 Membership Sales; Preferred Tee Times . . . . . . . . . . . . . . . . . 29
9.4 Landlord to Grant Easements, Etc. . . . . . . . . . . . . . . . . . . . 29
9.5 Tenant's Additional Covenants . . . . . . . . . . . . . . . . . . . . . 30
9.6 Valuation of Remainder Interest in Lease. . . . . . . . . . . . . . . . 30
ARTICLE 10
HAZARDOUS MATERIALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.1 Remediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.2 Tenant's Indemnification of Landlord. . . . . . . . . . . . . . . . . . 31
10.3 Landlord's Indemnification of Tenant. . . . . . . . . . . . . . . . . . 32
10.4 Survival of Indemnification Obligations . . . . . . . . . . . . . . . . 32
ARTICLE 11
MAINTENANCE AND REPAIR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.1 Tenant's Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.2 Waiver of Statutory Obligations . . . . . . . . . . . . . . . . . . . . 33
11.3 Mechanic's Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.4 Surrender of Property . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE 12
TENANT IMPROVEMENTS; SUBMITTAL OF BUDGETS; FINANCIAL STATEMENTS. . . . . . . . . . 34
12.1 Tenant's Right to Construct . . . . . . . . . . . . . . . . . . . . . . 34
12.2 Scope of Right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
12.3 Cooperation of Landlord . . . . . . . . . . . . . . . . . . . . . . . . 35
12.4 Capital Replacement Fund. . . . . . . . . . . . . . . . . . . . . . . . 36
12.5 Rights in Tenant Improvements . . . . . . . . . . . . . . . . . . . . . 38
12.6 Landlord's Right to Audit Calculation of Gross Revenue. . . . . . . . . 38
12.7 Annual Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
12.8 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 13
LIENS, ENCROACHMENTS AND OTHER TITLE MATTERS . . . . . . . . . . . . . . . . . . . 41
13.1 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
13.2 Encroachments and Other Title Matters . . . . . . . . . . . . . . . . . 42
(ii)
ARTICLE 14
PERMITTED CONTESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
14.1 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
14.2 Indemnification of Landlord . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE 15
INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
15.1 General Insurance Requirements. . . . . . . . . . . . . . . . . . . . . 44
15.2 Other Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
15.3 Replacement Cost. . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
15.4 Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . 45
15.5 Form Satisfactory, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 46
15.6 Change in Limits. . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
15.7 Blanket Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
15.8 Insurance Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . 47
15.9 Disbursement of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 47
15.10 Excess Proceeds, Deficiency of Proceeds . . . . . . . . . . . . . . . . 48
15.11 Reconstruction Covered by Insurance . . . . . . . . . . . . . . . . . . 48
15.12 Reconstruction Not Covered by Insurance . . . . . . . . . . . . . . . . 49
15.13 No Abatement of Rent. . . . . . . . . . . . . . . . . . . . . . . . . . 50
15.14 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
15.15 Damage Near End of Term . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 16
CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
16.1 Total Taking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
16.2 Partial Taking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
16.3 Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
16.4 Award-Distribution. . . . . . . . . . . . . . . . . . . . . . . . . . . 51
16.5 Temporary Taking. . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 17
EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
17.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
17.2 Payment of Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
17.3 Certain Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
17.4 Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
17.5 Additional Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . 53
17.6 Appointment of Receiver . . . . . . . . . . . . . . . . . . . . . . . . 54
17.7 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
17.8 Application of Funds. . . . . . . . . . . . . . . . . . . . . . . . . . 54
17.9 Impounds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 18
LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 19
LEGAL REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE 20
HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(iii)
ARTICLE 21
RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
21.2 Abatement of Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 22
INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
22.1 Tenant's Indemnification of Landlord. . . . . . . . . . . . . . . . . . 57
22.2 Landlord's Indemnification of Tenant. . . . . . . . . . . . . . . . . . 58
22.3 Mechanics of Indemnification. . . . . . . . . . . . . . . . . . . . . . 58
22.4 Survival of Indemnification Obligations; Available Insurance
Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 23
SUBLETTING AND ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
23.1 Prohibition Against Assignment. . . . . . . . . . . . . . . . . . . . . 59
23.2 Subleases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
23.3 Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
23.4 REIT Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
23.5 Leasehold Mortgage. . . . . . . . . . . . . . . . . . . . . . . . . . . 62
23.6 Bankruptcy Limitations. . . . . . . . . . . . . . . . . . . . . . . . . 63
23.7 Management Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE 24
OFFICER'S CERTIFICATES AND OTHER STATEMENTS. . . . . . . . . . . . . . . . . . . . 66
24.1 Officer's Certificates. . . . . . . . . . . . . . . . . . . . . . . . . 66
24.2 Environmental Statements. . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE 25
LANDLORD MORTGAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
25.1 Landlord May Grant Liens. . . . . . . . . . . . . . . . . . . . . . . . 67
25.2 Tenant's Non-Disturbance Rights . . . . . . . . . . . . . . . . . . . . 68
25.3 Facility Mortgage Protection. . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE 26
SALE OF FEE INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE 27
DISPUTE RESOLUTION
27.1 Dispute Resolution Procedure. . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE 28
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
28.1 Landlord's Right to Inspect . . . . . . . . . . . . . . . . . . . . . . 75
28.2 Landlord's Golfing Privileges . . . . . . . . . . . . . . . . . . . . . 75
28.3 Breach by Landlord. . . . . . . . . . . . . . . . . . . . . . . . . . . 75
28.4 Competition Between Landlord and Tenant . . . . . . . . . . . . . . . . 76
28.5 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
28.6 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . 76
28.7 Acceptance of Surrender . . . . . . . . . . . . . . . . . . . . . . . . 76
28.8 No Merger of Title. . . . . . . . . . . . . . . . . . . . . . . . . . . 76
28.9 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
28.10 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
28.11 Survival of Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . 77
(iv)
28.12 Invalidity of Terms or Provisions . . . . . . . . . . . . . . . . . . . 77
28.13 Prohibition Against Usury . . . . . . . . . . . . . . . . . . . . . . . 77
28.14 Amendments to Lease . . . . . . . . . . . . . . . . . . . . . . . . . . 78
28.15 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . 78
28.16 Titles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
28.17 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
28.18 Memorandum of Lease . . . . . . . . . . . . . . . . . . . . . . . . . . 78
28.19 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
28.19 Non-Recourse as to Landlord . . . . . . . . . . . . . . . . . . . . . . 78
28.21 No Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
28.22 Reletting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
28.23 Consent/Duty to Act Reasonably. . . . . . . . . . . . . . . . . . . . . 79
EXHIBITS
Exhibit A - Legal Description of the Land
Exhibit B - Schedule of Improvements
Exhibit C - Pro Forma Operating Expenses
Exhibit D - Additional Security
Exhibit E - Calculation of Gross Revenue on a Quarter-by-Quarter Basis
Exhibit F - Golf Utilization Agreement
Exhibit G - Schedule of Capital Improvement Schedule
(v)
SANDPIPER GOLF COURSE
GOLETA, CALIFORNIA
LEASE
THIS LEASE (this "Lease"), dated as of March 6, 1998, is entered into
by and between SANDPIPER-GOLF TRUST, LLC, a Delaware limited liability company
("Landlord"), and SANDPIPER AT SBCR, LLC, a Delaware limited liability company
("Tenant").
THE PARTIES ENTER THIS LEASE on the basis of the following facts,
understandings and intentions:
A. Pursuant to that certain Purchase and Sale Agreement (the
"Agreement") dated as of January 9, 1998 Landlord acquired the Property (as
hereafter defined) from Aradon Corporation ("Transferor"); and
B. Tenant, desires to lease the Property from Landlord, and Landlord
desires to lease the Property to Tenant, on the terms set forth herein.
NOW THEREFORE, in consideration of the foregoing and the covenants and
agreements to be performed by Tenant and Landlord hereunder, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1
LEASED PROPERTY
Upon and subject to the terms and conditions set forth in this Lease,
Landlord leases to Tenant and Tenant leases from Landlord all of Landlord's
rights and interest (to the extent acquired from Transferor) in and to the
following real property, improvements, personal property and related rights
(collectively the "Property"):
(a) the Land;
(b) the Improvements;
(c) all rights, privileges, easements and appurtenances to the Land
and the Improvements, if any, including, without limitation, all
Authorizations (including all liquor licenses) (and Landlord agrees to take
all reasonable actions and execute such documents as are
1
reasonably necessary or appropriate to transfer such rights, including any
liquor licenses, to Tenant), all of Landlord's right, title and interest,
if any, in and to all mineral and water rights and all easements,
rights-of-way and other appurtenances used or connected with the beneficial
use or enjoyment of the Land and the Improvements;
(d) the Tangible Personal Property; and
(e) the Intangible Personal Property.
The Property shall not include any oil, gas or mineral rights upon and
under the Property.
ARTICLE 2
DEFINITIONS, RULES OF CONSTRUCTION
2.1 DEFINITIONS. The following terms shall have the indicated
meanings:
"AAA" has the meaning provided in Section 27.1.
"ACTUAL PECUNIARY LOSS" has the meaning provided in Section 23.6.
"ADDITIONAL CHARGES" has the meaning provided in
Section 4.7.
"ADVISORY ASSOCIATION" means that certain association of lessees
operating golf courses under a lease with Landlord or any Affiliate of Landlord.
"AFFILIATE" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person.
"AGREEMENT" has the meaning provided in Recital A.
"ANNUAL BASE RENT" means the Initial Base Rent, as it may be adjusted
annually as provided in Section 4.2.
"ANNUAL BUDGET" has the meaning provided in Section 12.7.
"AUTHORIZATIONS" means all licenses, permits and approvals required by
any governmental or quasi-governmental agency, body or officer for the
ownership, operation and use of the Property or any part thereof.
"AWARD" means all compensation, sums or anything of value awarded,
paid or received on a total or partial Condemnation.
2
"BANKRUPTCY CODE" has the meaning provided in Section 23.6.
"BASE RENT" means one-twelfth of the Annual Base Rent.
"BASE RENT ESCALATOR" has the meaning provided in Section 4.2.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which national banks in the City of New York, New
York, are authorized, or obligated, by law or executive order, to close.
"CAPITAL BUDGET" has the meaning provided in Section 12.7.
"CAPITAL EXPENDITURES" has the meaning provided in Section 12.4.
"CAPITAL REPLACEMENT FUND" means the cumulative amount of the Capital
Replacement Reserve accrued by Landlord, together with interest thereon as
provided in Section 12.4, less amounts withdrawn from the Capital Replacement
Fund as provided in Section 12.4
"CAPITAL REPLACEMENT RESERVE" means, on an annual basis, commencing on
January 1, 2001, equal to Two Hundred Thousand Dollars ($200,000), increased
each Fiscal Year by three percent (3%) of the Capital Replacement Reserve
payable in the prior Fiscal Year. Notwithstanding the foregoing, in the event
the Property undergoes a significant redesign and renovation as contemplated by
Section 12.3, the Capital Replacement Reserve shall not commence until the first
day following four (4) Fiscal Quarters after the Property is reopened for
business. In no event shall the amount in the Capital Replacement Reserve
exceed Two Million Dollars ($2,000,000), which amount shall be increased every
ten (10) years by the change in the CPI for such period.
"CHANGE OF CONTROL" means:
(a) the issuance and/or sale by Tenant or the sale by any
stockholder of Tenant of a Controlling interest in Tenant to a Person other
than to a Person that is an Affiliate of Tenant as of the date hereof;
(b) the sale, conveyance or other transfer of all or substantially
all of the assets of Tenant (whether by operation of law or otherwise);
(c) any other transaction, or series of transactions, which
results in the shareholders, partners or members who
3
control Tenant as of the date hereof no longer having Control of
Tenant; or
(d) any transaction pursuant to which Tenant is merged with or
consolidated into another entity (other than an entity owned and Controlled
by an Affiliate of Tenant as of the date hereof), and Tenant is not the
surviving entity.
Notwithstanding the foregoing, a Change of Control shall not
be deemed to have occurred for purposes of this Lease (i) if the shareholders or
partners who Control Tenant as of the date hereof remain in Control of Tenant
through an agreement or equity interest; (ii) in the event of any transfers by
inter vivos gift or by testamentary transfer to any spouse, parent, sibling,
in-law, child or grandchild or any holder of a direct or indirect interest in
Tenant, to a trust for the benefit of any holder of a direct or indirect
interest in Tenant or such spouse, parent, sibling, in-law, child or grandchild
of a holder of a direct or indirect interest in Tenant; or (iii) in the event of
any transfer any person or entity that is a constituent member, partner or
shareholder of Tenant or of any entity that has a direct or indirect interest in
Tenant.
"CODE" means the Internal Revenue Code of 1986, as the same may be
amended or supplemented, and the rules and regulations promulgated thereunder.
"COMMENCEMENT DATE" means the date hereof.
"COMPANY" means Golf Trust of America, Inc. and any subsidiaries
thereof, including, without limitation, GTA LP and GTA GP, and, for purposes of
Sections 10.7, 22.1, 22.3 and 22.4, each of their officers, employees,
directors, agents and representatives.
"CONDEMNATION" means (a) the exercise of any governmental power,
whether by legal proceedings or otherwise, by a Condemnor, and (b) a voluntary
sale or transfer by Landlord to any Condemnor, either under threat of
condemnation or while legal proceedings for condemnation are pending.
"CONDEMNOR" means any public or quasi-public authority, or private
corporation or individual, having the power of condemnation.
"CONTROL" means (including, with correlative meanings, the terms
"controlling" and "controlled by"), as applied to any Person, the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting
securities, by contract or otherwise.
4
"CPI" means the United States Consumer Price Index, All Urban
Consumers, U.S. City Average, All Items (1982-84 = 100).
"DATE OF TAKING" means the date the Condemnor has the right to
possession of the property being condemned.
"ENVIRONMENTAL LAWS" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et
seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et
seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the
Hazardous Materials Transportation Act, as amended, 49 U.S.C. Section 1801, et
seq.; the Superfund Amendments and Reauthorization Act of 1986, Pub. L. 99-499
and 99-563; the Occupational Safety and Health Act of 1970, as amended, 29
U.S.C. Section 651, et seq.; the Clean Air Act, as amended, 42 U.S.C. Section
7401, et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 201,
et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section
1251, et seq.; and all federal, state and local environmental health and safety
statutes, ordinance, codes, rules, regulations, orders and decrees regulating,
relating to or imposing liability or standards concerning or in connection with
Hazardous Materials.
"EVENT OF DEFAULT" has the meaning provided in Section 17.1.
"EXPIRATION DATE" means the date that is the last day of the fortieth
(40th) full Fiscal Quarter following the Commencement Date, as such date may be
extended by the Extended Terms.
"EXTENDED TERM" has the meaning provided in Section 3.2.
"F&B PERCENTAGE RENT" means, for any Fiscal Year during the Lease
Term, ten percent (10%) of the positive difference, if any, between Food and
Beverage Revenue for such Fiscal Year and Three Hundred Seventy-Five Thousand
Dollars ($375,000).
"FACILITY MORTGAGE" means a mortgage, deed of trust or other security
agreement securing any indebtedness or any other Landlord's Encumbrance placed
on the Property in accordance with the provisions of Article 25.
"FACILITY MORTGAGEE" means the holder or beneficiary of a Facility
Mortgage, if any; provided Landlord has given Tenant notice of the identity and
address of the Person.
"FISCAL QUARTER" means the three-month periods (or applicable portions
thereof) in any Fiscal Year from January 1 through March 31, April 1 through
June 30, July 1 through September 30 and October 1 through December 31.
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"FISCAL YEAR" means the twelve (12) month period from the first day of
the first Fiscal Quarter commencing after the Commencement Date to the last day
of the fourth Fiscal Quarter commencing after the Commencement Date.
"FIXTURES" means all permanently affixed equipment, machinery,
fixtures, and other items of real and/or personal property, including all
components thereof, now or hereafter located in, on or used in connection with
and permanently affixed to or incorporated into the Property, including all
furnaces, boilers, heaters, electrical equipment, heating, plumbing, lighting,
ventilating, refrigerating, air and water pollution control, waste disposal,
air-cooling and air-conditioning systems and apparatus, sprinkler systems and
fire and theft protection equipment, all of which, to the greatest extent
permitted by law, are hereby deemed by the parties hereto to constitute real
estate, together with all replacements, modifications, alterations and additions
thereto, but specifically excluding all items included within the category of
Tenant's Personal Property and any Tenant Improvements.
"FOOD AND BEVERAGE REVENUE" means all revenue received (whether by
Tenant or any subtenants, assignees, concessionaires or licensees) from or by
reason of the Property relating to (i) the operation of snack bars, restaurants,
bars, catering functions, and banquet operations provided, however, that Food
and Beverage Revenue shall not include:
(a) The amount of any city, county, state or federal sales,
admissions, usage, excise tax or other tax, assessment or charge on
the item included in Food and Beverage Revenue, which is both added to
or incorporated in the selling price and payable to the taxing,
assessing or charging authority by Tenant;
(b) Revenues or proceeds from sales or trade-ins of
machinery, vehicles, trade fixtures or personal property owned by
Tenant used in connection with Tenant's operation of the Property;
(c) Sales receipts from any vending machine or other coin
or token operated device, such as public telephones, stamp machines,
mechanical entertainment machines; soft drink and candy dispensers;
and other receipts and deposits which Tenant and its subtenants are
not entitled to receive, but are collected and payable to an
independent third party;
(d) Cash refunded or credit allowed on merchandise returned
by customers;
(e) Cash or credit allowances given to customers in good
faith;
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(f) Cash register "over rings";
(g) Sales canceled to the extent the purchase price is not
retained by Tenant;
(h) Merchandise returned to suppliers or transferred to
another store or warehouse of Tenant or any Affiliate of Tenant;
(i) Cash and credits received by Tenant in settlement of
claims for loss or damage of merchandise;
(j) Sales in bulk of all or substantially all of the
merchandise in connection with a sale of all or part of Tenant's
business;
(k) Advertising rebates, discounts, and allowances, and
other rebates, credits, and dividends received from suppliers;
(l) Interest, service, and carrying charges paid by
customers for extension of credit on sales;
(m) Service charges on credit cards, and credit accounts;
(n) Bad checks and uncollectible credit card accounts
(unless the same results from Tenant's failure to engage in prudent
business regarding the extension of credit or the acceptance of
checks);
(o) The net amount of any discount allowed to Tenant's
employees when sales are made to such employees at prices below the
retail selling prices then in effect in Tenant's store on the
Property, and the net amount of any discounts allowed to any
charitable institution or organization;
(p) Amounts paid to merchandise vendors, entertainers and
professionals who are not employees of Tenant; and
(q) Money-off coupons and vendor coupons.
"FULL REPLACEMENT COST" means the actual replacement cost from time to
time of the improvement being insured, including the increased cost of a
construction endorsement, less exclusions provided in the fire insurance policy.
"GAAP" means generally accepted accounting principles, consistently
applied.
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"GROSS GOLF PERCENTAGE RENT" means the following percentages:
(a) $5,000,000 - $6,000,000 - 5%,
(b) $6,000,001 - $7,000,000 - 20%
(c) $7,000,001 - $8,000,000 - 40%
(d) in excess of $8,000,001 - 50%
For example, if the Gross Golf Revenue for any Fiscal Year was
Eight Million Five Hundred Thousand Dollars ($8,500,000), then the Gross Golf
Percentage Rent would be $900,000.
"GROSS GOLF REVENUE" means all revenues accrued (whether by Tenant or
any subtenants, assignees, concessionaires or licensees) from or by reason of
the operation of the golf operations at the Property calculated in accordance
with GAAP (but excluding reasonable reserves for refunds, allowances and bad
debts applicable to such operations), including, without limitation, (i)
revenues from membership initiation fees, (ii) periodic membership dues, (iii)
greens fees, (iv) fees to reserve a tee time, (v) guest fees, (vi) golf cart
rentals, (vii) parking lot fees, (viii) locker rentals, (ix) fees for golf club
storage, (x) charges for range balls, range fees or other fees for golf practice
facilities, (xi) fees or other charges paid for golf lessons (except where
retained by or paid to a professional not an employee of Tenant), (xii)
forfeited deposits with respect to any membership application, (xiii) transfer
fees imposed on any member in connection with the transfer of any membership
interest, (xiv) fees or other charges paid to Tenant by sponsors of golf
tournaments at the Property (unless the terms under which Tenant is paid by such
sponsor do not comply with Section 23.4, in which event the gross revenues
received from such sponsor for the tournament shall be excluded from Gross
Revenue and further provided that Tenant shall use commercially reasonable
efforts to structure such payment to comply with Section 23.4), (xv) advertising
or placement fees paid by vendors in exchange for exclusive use or name rights
at the Property, and (xvi) revenues from photography services, and (xvii) fees
received in connection with any golf package sponsored by any hotel group,
condominium group, golf association, travel agency, tourist or travel
association or similar payments; PROVIDED, HOWEVER, that Gross Revenue shall not
include:
(a) The amount of any city, county, state or federal sales,
admissions, usage, or excise tax on the item included in Gross Revenue,
which is both added to or incorporated in the selling price and paid to the
taxing authority by Tenant;
(b) Revenues or proceeds from sales or trade-ins of machinery,
vehicles, trade fixtures or personal property owned by Tenant used in
connection with Tenant's operation of the Property;
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(c) Any of the items set forth in subsections (c) to (q) as
exceptions and exclusions from Food and Beverage Revenue; and
(d) Any revenue collected by any hotel from its customers in
connection with the golf course but which are not paid to Tenant,
including, without limitation, membership fees, dues, club programs, spa
facilities, recreation facilities.
"GROSS REVENUE" means the sum of the Gross Golf Revenue, Food and
Beverage Revenue and Merchandise Revenue for the applicable period.
"GTA GP" means GTA GP, Inc. and any successor thereto.
"GTA LP" means GTA LP, Inc. and any successor thereto.
"HAZARDOUS MATERIAL" means any substance, material, waste, gas or
particulate matter which is regulated by any local, state or federal
governmental authority, including but not limited to any material or substance
which is (i) defined as a "hazardous waste", "hazardous material", or
"restricted hazardous waste" or words of similar import under any provision of
any Environmental Law; (ii) petroleum or petroleum products; (iii) asbestos;
(iv) polychlorinated biphenyl; (v) radioactive material; (vi) radon gas; (vii)
designated as a "hazardous substance" pursuant to Section 311 of the Clean Water
Act, 33 U.S.C. Section 1251, et seq. (42 U.S.C. Section 1317); (viii) defined as
a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903); or (ix)
defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601,
et seq. (42 U.S.C. Section 9601).
"IMPARTIAL APPRAISER" means the casualty insurance company which is
then carrying the largest amount of casualty insurance carried on the Property.
"IMPOSITIONS" means collectively:
(a) all taxes (including all real and personal property, ad
valorem, sales and use, single business, gross receipts, transaction
privilege, rent or similar taxes);
(b) assessments and levies (including all assessments for
public improvements or benefits, whether or not commenced or completed
prior to the date hereof and whether or not to be completed within the
Term);
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(c) excises;
(d) fees (including license, permit, inspection,
authorization and similar fees); and
(e) all other governmental charges;
in each case whether general or special, ordinary or extraordinary, or foreseen
or unforeseen, of every character in respect of the Property and/or the Rent or
Additional Charges (including all interest and penalties thereon due to any
failure in payment by Tenant), which at any time during or in respect of the
Term hereof may be assessed or imposed on or in respect of or be a lien upon (i)
Landlord or Landlord's interest in the Property; (ii) the Property or any part
thereof or any therefrom or any estate, right, title or interest therein; or
(iii) any operation, use or possession of, or sales from or activity conducted
on or in connection with the Property or the leasing or use of the Property or
any part thereof; PROVIDED, HOWEVER, that Impositions shall not include:
(aa) any taxes based on net income (whether denominated as an
income, franchise, capital stock or other tax) imposed on Landlord or any
other Person other than Tenant;
(bb) any transfer or net revenue tax of Landlord or any other
Person other than Tenant;
(cc) any initial valuation of the golf course for ad valorem tax
purposes in excess of Thirty-Three Million Dollars ($33,000,000) (excepting
any valuation based on the length of the leasehold which is deemed a
"change in ownership") or any other tax imposed on the Property based
solely upon the actions of Landlord;
(dd) any tax imposed with respect to any principal or interest on
any indebtedness on the Property.
"IMPOUND CHARGES" has the meaning provided in Section 17.9.
"IMPOUND PAYMENT" has the meaning provided in Section 17.9.
"IMPROVEMENTS" means the golf course, driving range, putting greens,
clubhouse facilities, snack bar, restaurant, pro shop, buildings, structures,
parking lots, improvements, Fixtures and other items of real estate located on
the Land as more particularly described in EXHIBIT B attached hereto.
"INITIAL BASE RENT" means Two Million Nine Hundred Seventy Thousand
Dollars ($2,970,000) per year.
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"INITIAL TERM" means the period of time from the Commencement Date
through the last day of the fortieth (40th) full Fiscal Quarter following the
Commencement Date.
"INSURANCE REQUIREMENTS" mean all terms of any insurance policy
required by this Lease and all requirements of the issuer of any such policy.
"INTANGIBLE PERSONAL PROPERTY" means all intangible personal property
owned by Landlord and used solely in connection with the ownership, operation,
leasing or maintenance of the Real Property or the Tangible Personal Property,
and any and all trademarks and copyrights, guarantees, Authorizations, general
intangibles, business records, plans and specifications, surveys, all licenses,
permits and approvals solely with respect to the construction, ownership,
operation or maintenance of the Property. (Tenant acknowledges that Landlord is
not assigning any representations or warranties received by Landlord in
connection with its acquisition of the Property, but Landlord agrees to enforce
such representations and warranties in a commercially reasonable manner for the
benefit of Landlord and Tenant).
"LAND" means the land described in EXHIBIT A attached hereto.
"LANDLORD" means Sandpiper-Golf Trust, LLC and any successor or
assignee permitted in accordance with the terms of the Lease.
"LANDLORD'S ENCUMBRANCE" means any lien, encumbrance or title
retention agreement upon the Property, or any portion thereof or interest
therein, whether to secure borrowing or other means of financing or refinancing.
"LEASE" means this Lease, as the same may be amended from time to
time.
"LEASE TERM" means the period from the Commencement Date through and
including the Expiration Date (or the termination date, if earlier terminated
pursuant to the provisions hereof).
"LEASEHOLD" means all of Tenant's right, title and interest in and to
the Property pursuant to the terms of this Lease, and all Tenant's rights under
this Lease.
11
"LEASEHOLD FINANCING" means any financing provided by a Leasehold
Mortgagee secured by a Leasehold Mortgage provided the proceeds of such
Leasehold Financing are used solely for the purpose of funding capital
improvements to the Property or to pay for operating expenses (not to include
Tenant's fees paid for course management) related to the operations at the
Property. Landlord shall be given prior written notice of any proposed
Leasehold Financing.
"LEASEHOLD MORTGAGE" means the Mortgage encumbering the entire
Leasehold and securing Leasehold Financing.
"LEASEHOLD MORTGAGEE" means the lender which holds the beneficial
interest under the Leasehold Mortgage.
"LEGAL REQUIREMENTS" means all federal, state, county, municipal and
other governmental statutes, laws (including the Americans with Disabilities Act
and any Environmental Laws), rules, orders, regulations, ordinances, judgments,
decrees and injunctions affecting either the Property or the construction, use
or alteration thereof, whether now or hereafter enacted and in force.
"MERCHANDISE PERCENTAGE RENT" means, for any Fiscal Year during the
Lease Term, ten percent (10%) of the positive difference, if any, between
Merchandise Revenue for such Fiscal Year and Four Hundred Seventy-Five Thousand
Dollars ($475,000).
"MERCHANDISE REVENUE" means all revenue received (whether by Tenant or
any subtenants, assignees, concessionaires or licensees) from or by reason of
the Property relating to the sale of merchandise and inventory on the Property;
provided, however, that Merchandise Revenue shall not include:
(a) The amount of any city, county, state or federal sales,
admissions, usage, or excise tax on the item included in Merchandise
Revenue, which is both added to or incorporated in the selling price
and paid to the taxing authority by Tenant;
(b) Revenues or proceeds from sales or trade-ins of machinery,
vehicles, trade fixtures or personal property owned by Tenant used in
connection with Tenant's operation of the Property; and
(c) Any of the items set forth in subsections (c) to (q) as
exceptions and exclusions from Food and Beverage Revenue.
"NET OPERATING INCOME" means net operating income for the Tenant
calculated in accordance with GAAP, including applicable reserves.
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"NON-COMPLYING PARTY" has the meaning provided in Section 27.2.
"OFFICER'S CERTIFICATE" means a certificate of Tenant signed by an
officer authorized to so sign by the board of directors or by-laws, or if Tenant
is a partnership, by an officer authorized to so sign by the general partners.
"OPERATING BUDGET" has the meaning provided in Section 12.7.
"OVERDUE RATE" means, on any date, a rate equal to the Prime Rate plus
an additional three percent (3%) per annum, but in no event greater than the
maximum rate then permitted under applicable law.
"PERCENTAGE RENT" means, for any Fiscal Year during the Lease Term,
the sum of F&B Percentage Rent, Merchandise Percentage Rent and Gross Golf
Percentage Rent, pro rated for any partial periods.
"PERMITTED ASSIGNEE" means a Person or an Affiliate of a Person
meeting one or more of the following standards:
(a) an existing lessee under a lease with Landlord or any
Affiliate of Landlord who is not then in default under its lease;
(b) any entity affiliated with an entity acquiring from an
Affiliate of Tenant its resort and related operations located at or
adjacent to the Property, and provided Landlord has approved such assignee
in its reasonable discretion, based on, among other things, the proposed
assignee's reputation and experience in owning, operating and managing golf
courses similar in type to the Property and the proposed assignee's net
worth and financial resources; and
(c) a list of pre-approved assignees prepared by Landlord
from time to time in consultation with the Advisory Association.
"PERSON" means and includes natural persons, corporations, limited
partnerships, limited liability companies, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts, banks, trusts
companies, land trusts, business trusts, Indian tribes or other organizations,
whether or not legal entities, and governments and agencies and political
subdivisions thereof.
"PRIMARY INTENDED USE" means the operation of an 18-hole golf course
and other activities incidental to the operation of a golf course.
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"PRIME RATE" means on any date, a rate equal to the annual rate on
such date announced by NationsBank, N.A., or its successor entity, to be its
prime rate or, if the prime rate is discontinued, the base rate for 90-day
unsecured loans to its corporate borrowers of the highest credit standing.
"PROPERTY" means the Real Property, the Tangible Personal Property and
the Intangible Personal Property
"REAL PROPERTY" means the Land and the Improvements, and all easements
and appurtenances attached thereto.
"RENT" means, collectively, the Base Rent and Percentage Rent.
"STATE" means the State or Commonwealth in which the Property is
located.
"TANGIBLE PERSONAL PROPERTY" means all items of tangible personal
property and fixtures (if any) owned by Landlord and located on or used solely
in connection with the Real Property, including, but not limited to, machinery,
equipment, furniture, furnishings, movable walls or partitions, phone systems,
restaurant equipment, computers or trade fixtures, golf course operation and
maintenance equipment, including mowers, tractors, aerators, sprinklers,
sprinkler and irrigation facilities and equipment, valves or rotors, driving
range equipment, athletic training equipment, office equipment or machines,
antiques or other decorations, furniture, computers or other control systems,
and equipment or machinery of every kind or nature, including all warranties and
guaranties associated therewith. Tenant understands and acknowledges that
Landlord is purchasing the liquor license on the Property and shall convey the
same to Tenant for Tenant's use during the term of Lease: provided Tenant shall
be responsible for payment to Transferor of $2,500 per month until the
conveyance is complete (or Tenant elects not to proceed with the transfer of
such liquor license, in which case Tenant shall be obligated to purchase a
liquor license at its sole cost and expense). In addition, Tenant understands
and acknowledges that Transferor has retained a residual right in the golf carts
at the property and will be entitled and receive any residual value allocated to
such golf carts at trade-in.
"TENANT" means Sandpiper at SBCR, LLC, a Delaware limited liability
company, and any successor thereto, or assignee thereof, as permitted by the
terms of this Lease.
"TENANT IMPROVEMENTS" has the meaning provided in Section 12.1.
"TENANT'S PERSONAL PROPERTY" has the meaning provided in Section 8.2.
14
"TENANT'S RIGHT OF FIRST OFFER TO PURCHASE" has the meaning provided
in Section 26.1.
"TERM" means, collectively, the Initial Term and any Extended Terms,
as the context may require, unless earlier terminated pursuant to the provisions
hereof.
"TRANSFEROR" has the meaning provided in Recital A.
"TRUSTEE" has the meaning provided in Section 23.6.
"UNAVOIDABLE DELAYS" means delays due to strikes, lockouts, power
failure, acts of God, governmental restrictions, enemy action, civil commotion,
fire, unavoidable casualty or other causes beyond the control of the party
responsible for performing an obligation hereunder, PROVIDED THAT lack of funds
shall not be deemed a cause beyond the control of either party hereto unless
such lack of funds is caused by the failure of the other party hereto to perform
any obligations of such party under this Lease.
"UNSUITABLE FOR ITS PRIMARY INTENDED USE" means a state of condition
of the Property such that the Property cannot be operated on a commercially
practicable basis for its Primary Intended Use.
2.2 RULES OF CONSTRUCTION. The following rules shall apply to the
construction and interpretation of this Lease:
(a) Singular words shall connote the plural number as well as the
singular and vice versa, and the masculine shall include the feminine and
the neuter.
(b) All references herein to particular articles, sections,
subsections, clauses or exhibits are references to articles, sections,
subsections, clauses or exhibits of this Lease.
(c) The table of contents and headings contained herein are solely
for convenience of reference and shall not constitute a part of this Lease
nor shall they affect its meaning, construction or effect.
(d) "Including" and variants thereof shall be deemed to mean
"including without limitation."
(e) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles then in effect.
(f) Each party hereto and its counsel have reviewed and revised
(or requested revisions of) this Lease and have participated in the
preparation of this Lease, and therefore
15
any usual rules of construction requiring that ambiguities are to be
resolved against a particular party shall not be applicable in the
construction and interpretation of this Lease or any exhibits hereto.
ARTICLE 3
TERM
3.1 INITIAL TERM. The Initial Term shall commence on the
Commencement Date and shall terminate on the last day of the fortieth (40th)
full Fiscal Quarter following the Commencement Date.
3.2 EXTENSION OPTIONS. Landlord grants Tenant the right to extend
the Initial Term of this Lease two (2) consecutive times for a period of five
(5) years each (each such extension, together with any extension pursuant to
Section 3.4, an "Extended Term"). Tenant shall be deemed to have elected to
extend the Lease for each Extended Term unless Tenant has given Landlord written
notice at least one hundred eighty (180) days prior to the termination of the
then-current term (the "Exercise Date") that Tenant is not exercising such
option. Tenant shall be entitled to exercise these options only if at the time
of the Exercise Date Tenant is then the lessee of the Property pursuant to this
Lease, and at the time of the commencement of the applicable Term or Extended
Term no Event of Default shall then exist. During each Extended Term, all of
the terms and conditions of this Lease shall continue in full force and effect,
as the same may be amended, supplemented or modified.
3.3 RIGHT TO EXTEND RESULTING FROM ENVIRONMENTAL REMEDIATION.
Tenant acknowledges that Landlord has notified Tenant that the Property has
certain environmental contamination resulting from the operation of a petroleum
extraction facility on the Property. As a result of such contamination and
pursuant to that certain Third Amendment to Purchase and Sale Agreement (the
"Third Amendment") by and among Atlantic Richfield Company ("ARCO"), Transferor
and Landlord (a copy of which has been provided to Tenant), ARCO has certain
rights to come onto the Property and remediate all or a portion of such
environmental contamination. If the environmental remediation contemplated by
the Third Amendment is commenced prior to January 1, 2006 and as a result the
golf course operations on the Property are closed for a period of in excess of
thirty (30) days, then (a) Tenant shall be granted one additional extension
option on the same terms and conditions as set forth above, and (b) all rent
shall abate from the date Tenant is required to vacate the Property or a
material portion thereof as provided herein. In the event of such rent
abatement, Tenant shall be obligated to pay to Landlord the abated rent from any
Net Operating Income of Tenant from the Property, calculated in accordance with
GAAP (without deduction for any debt service of Tenant payable to any third
party under any Leasehold Financing). In addition, if the environmental
16
remediation contemplated by the Third Amendment is commenced after December 31,
2005 and as a result the golf course operations on the Property are closed for a
period of in excess of thirty (30) days, then Tenant shall have the right to
terminate this Lease on thirty (30) days written notice by giving written notice
to Landlord before the remediation work is completed. If Tenant does not so
terminate this Lease, then rent shall not abate and the current term of the
Lease shall be extended for a period equal to two (2) days for each day that the
golf course operations on the Property are closed, up to a maximum extension of
five (5) years.
3.4 RIGHT TO EXTEND FOR AN ADDITIONAL TWENTY (20) YEARS. Upon the
expiration of the Term, as extended by each of the Extended Terms, and provided
Tenant has given Landlord notice of its intent to exercise such right not less
than two hundred seventy days (270) days prior to the scheduled expiration of
the Term, Tenant shall have the right to extend this Lease for an additional
forty (40) Full Fiscal Quarters plus two (2) five (5) year extension options
("Tenant's Twenty (20) Year Extension Right") at ninety-five percent (95%) of
the then market-rate base rent and percentage rent. In the event Tenant elects
to extend the Lease, and if the parties are unable to agree upon a rental rate,
then Landlord shall obtain from a bona fide third party capable of performing
the obligations of Tenant hereunder a written term sheet executed by such third
party (which may be in the form of a customary non-binding letter of intent)
(the "Bona Fide Offer"). Tenant shall be entitled to exercise Tenant's Twenty
(20) Year Extension Right only if at the time of the giving of such notice and
at the time of the commencement of the applicable term no Event of Default shall
then exist. Not more than nine (9) months and not less than three (3) months
prior to the expiration of the Lease Term ("Landlord's Procuring Period"),
Landlord shall, if applicable, give Tenant the Bona Fide Offer. Tenant shall
thereafter have a period of thirty (30) days to elect by unequivocal written
notice to Landlord to lease the Property on the same terms and conditions as
Landlord intends to offer to a third party, provided the Base Rent and
Percentage Rent shall be set at ninety-five percent (95%) of such proposed
offer. If Tenant elects not to lease the Property, then Landlord shall be free
to lease the Property to a third party on substantially the same terms and
conditions as set forth in the Bona Fide Offer; provided if such lease is not
consummated within one hundred eighty (180) days from the expiration of the term
of this Lease, then Tenant shall again have the right to extend the Term of the
Lease as provided in this Section 3.4. If Tenant elects to extend the Lease as
provided in this Section 3.4 and Landlord does not provide to Tenant a Bona Fide
Offer within Landlord's Procuring Period, then the Base Rent and Percentage Rent
shall be set at ninety-five percent (95%) of the Fair Market Rental Rate at set
forth below.
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(a) Not later than fifteen (15) days from and after the
expiration of Landlord's Procuring Period, Landlord and Tenant shall each
appoint one arbitrator who shall by profession be a real estate appraiser, which
appointee shall have been active over the five (5) year period ending on the
date of such appointment in the appraisal of golf courses in the Southern
California area.
(i) The two arbitrators so appointed shall within
fifteen (15) days of the date of the appointment of the last appointed
arbitrator agree upon and appoint a third arbitrator who shall be qualified
under the same criteria set forth hereinabove for qualification of the initial
two arbitrators. Upon appointment of the third arbitrator, Landlord and Tenant
shall each submit to the other and to the third arbitrator sealed envelopes
containing their respective determinations of the Fair Market Rental Rate. If
Landlord's and Tenant's determination are within five percent (5%) of each
other, the third arbitrator shall average the determination. If such
determinations are not within five percent (5%) of each other, the third
arbitrator shall choose the determination closer to his or her own
determination. The determination of the third arbitrator described below shall
be limited solely to the issue of whether Landlord's or Tenant's submitted fair
market rent for the Property is the closest to the actual Fair Market Rental
Rate determined by the arbitrator, based upon what a willing, comparable tenant
would pay and a willing, comparable landlord would accept at arm's length, for
leasing of the Property under the terms of this Lease and all other then
existing factors ("Fair Market Rental Rate").
(ii) The third arbitrator shall within thirty (30)
days of his or her appointment reach a decision as to whether the parties shall
use Landlord's or Tenant's submitted Fair Market Rental Rate, or, if Landlord's
and Tenant's determination are within five percent (5%) of each other, the
average of the two, and shall notify Landlord and Tenant thereof.
(iii) The decision of the third arbitrator shall be
binding upon Landlord and Tenant.
(iv) If either Landlord or Tenant fails to appoint
an arbitrator within fifteen (15) days after the expiration of Landlord's
Procuring Period, the arbitrator timely appointed by one of them shall reach a
decision, notify Landlord and Tenant thereof, and such arbitrator's decision
shall be binding upon Landlord and Tenant.
(v) If the two arbitrators fail to agree upon and
appoint a third arbitrator, both arbitrators shall be dismissed and the matter
to be decided shall be forthwith submitted to arbitration under the provisions
of the American
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Arbitration Association, but subject to the instructions set forth herein.
(vi) The cost of arbitration shall be paid by
Landlord and Tenant equally.
(vii) If the Fair Market Rental Rate has not been
determined by the commencement of such additional Term, then until the time the
Fair Market Rental Rate is determined, Tenant shall continue making payment
under the terms of this Lease by an amount equal to one hundred percent (100%)
of the sum of Landlord's and Tenant's determination of the Fair Market Rental
Rate for the applicable Option Term divided by two (2). If the arbitration
procedure results in a higher Base Rent and Percentage Rent than that paid by
Tenant prior to date of the arbitrators' determination, Tenant shall make up the
difference and pay such amount to Landlord along with the next installment of
Base Rent due. If the arbitration procedure results in a lower Base Rent than
that paid by Tenant prior to the date of the arbitrators' determination, Tenant
shall receive a credit against any next succeeding installment(s) of Base Rent
to the extent of such overpayment.
3.5 RIGHT OF TERMINATION. Landlord and Tenant are entering into
this Lease with the expectation that the golf course on the Property will
undergo a significant redesign and renovation. In the event either Landlord or
Tenant determines, in good faith and in its reasonable discretion, that
acceptable permits to undertake such approvals have not been obtained by January
1, 2006, then for a period of ninety (90) days thereafter either party shall
have the right to terminate this Lease upon delivery of ninety (90) days prior
written notice to the other. Landlord and Tenant shall use commercially
reasonable efforts to obtain such permits on a prompt basis.
ARTICLE 4
RENT
4.1 RENT. Tenant will pay to Landlord, in lawful money of the
United States of America, Rent during the Initial Term or any Extended Term,
subject to the provisions of Section 12.3. Payments of Base Rent shall be paid
monthly, on the twenty-fifth (25th) day of each month in arrears, at Landlord's
address set forth in Section 28.10 or at such other place or to such other
Person as Landlord from time to time may designate in writing. The first
monthly installment shall be prorated as to any partial month. If any payment
owing hereunder shall otherwise be due on a day that is not a Business Day, such
payment shall be due on the next succeeding Business Day. Tenant shall receive
a credit against Rent (or be paid directly, at Landlord's option) for any
operating expense credits or operating revenues credited to Landlord pursuant to
the Agreement which are applicable to any period in the Lease Term (E.G., credit
for real
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property taxes, membership dues, sublease rents, etc.) and conversely Tenant
shall reimburse Landlord for any operating expenses paid for by Landlord
pursuant to the Agreement which are the responsibility of Tenant hereunder.
4.2 INCREASE IN INITIAL BASE RENT. Beginning on the date (the
"Adjustment Date") that is the first day of the first Fiscal Quarter commencing
after the one (1) year anniversary of the Commencement Date, and on each
Adjustment Date thereafter during the Term until Gross Golf Revenue for the
prior Fiscal Year equals or exceeds Five Million Dollars ($5,000,000), Annual
Base Rent will increase by the lesser of (i) three percent (3%) of the Annual
Base Rent payable for the immediately preceding year, or (ii) two hundred fifty
percent (250%) of the change in CPI from the immediately preceding fiscal year
(the "Base Escalator"). Tenant shall be permitted to defer payment of the Base
Escalator until such time as Gross Golf Revenue for any Fiscal Year equals or
exceeds Five Million Dollars ($5,000,000), but only if and to the extent that
Net Operating Income of the Property (exclusive of Tenant's debt service to any
third party under any Leasehold Financing, if any), calculated in accordance
with GAAP, is negative. Any amounts so deferred shall be payable from net
operating income in subsequent years, and no positive distributions shall be
made to any of the members or affiliates of Tenant so long as any deferred
amounts are outstanding. For purposes of the calculation of net operating
income pursuant to this Section 4.2, the operating expenses shall not exceed the
pro forma amounts set forth in EXHIBIT C without the approval of Landlord, which
approval shall not be unreasonably withheld or delayed.
4.3 INCREASE IN BASE RENT FOR CAPITAL IMPROVEMENTS. At the end of
each Fiscal Quarter, Landlord shall calculate the amount (the "Quarterly Capital
Expenditure"), if any, funded to Tenant pursuant to Section 12.3(a), and provide
notice to Tenant of the Quarterly Capital Expenditure. Effective as of the due
date of the next monthly installment of Annual Base Rent, Annual Base Rent shall
be increased by an amount equal to nine percent (9%) of the Quarterly Capital
Expenditure.
4.4 PERCENTAGE RENT. In addition to Base Rent, Tenant shall pay
Percentage Rent as provided herein. Beginning in the first year of the Initial
Term and continuing for the Initial Term and any Extended Term, Tenant shall
calculate the Gross Revenue for each Fiscal Quarter (or shorter period, if
applicable) within twenty (20) days of the end of such Fiscal Quarter (or
shorter period, if applicable) and submit such calculation in writing to
Landlord by way of an Officer's Certificate. If there is Percentage Rent for
that Fiscal Quarter (or shorter period, if applicable), then Tenant shall pay to
Landlord the Percentage Rent, upon submittal of the Officer's Certificate. The
Percentage Rent payable in any period in any Fiscal Year shall be adjusted to
reflect the Percentage Rent paid
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on a year-to-date cumulative basis for the Fiscal Year (pro rated for any
partial periods). Percentage Rent shall be payable by annualizing the quarterly
Gross Golf Revenue, Food and Beverage Revenue and Merchandise Revenue as more
particularly set forth on EXHIBIT E attached hereto.
4.5 ANNUAL RECONCILIATION OF PERCENTAGE RENT. Within sixty (60)
days after the end of each Fiscal Year, or after the expiration or termination
of this Lease, Tenant shall deliver to Landlord an Officer's Certificate setting
forth (i) the Gross Revenue for the Fiscal Year just ended, and (ii) a
comparison of the amount of the Percentage Rent actually paid during such Fiscal
Year versus the amount of Percentage Rent actually owing on the basis of the
annual calculation of the Gross Revenue. If the Percentage Rent for such Fiscal
Year exceeds the sum of the quarterly payments of Percentage Rent previously
paid by Tenant, Tenant shall pay such deficiency to Landlord along with such
Officer's Certificate. If the Percentage Rent for such Fiscal Year is less than
the amount of Percentage Rent previously paid by Tenant, Landlord shall, at
Landlord's option, either (i) remit to Tenant its check in an amount equal to
such difference, or (ii) grant Tenant a credit against the payment of Rent next
coming due. Landlord shall have the right to audit all of Tenant's business
operations at the Property so as to determine the calculation of Percentage Rent
as provided in Section 12.6. Landlord shall not audit Tenant's business
operations more than once in any calendar year.
4.6 RECORD-KEEPING. Tenant shall utilize an accounting system for
the Property in accordance with its usual and customary practices and in
accordance with GAAP approved by Landlord, which will accurately record all
Gross Revenue. Tenant shall retain all accounting records for each Fiscal Year
conforming to such accounting system until at least five (5) years after the
expiration of such Fiscal Year.
4.7 ADDITIONAL CHARGES. In addition to the Base Rent and
Percentage Rent, (a) Tenant shall also pay and discharge when due and payable
all other amounts, liabilities, obligations and Impositions which Tenant assumes
or agrees to pay under this Lease, and (b) in the event of any failure on the
part of Tenant to pay any of those items referred to in clause (a) above, Tenant
shall also pay and discharge every fine, penalty, interest and cost which may be
added for non-payment or late payment of such items (the items referred to in
clauses (a) and (b) above being referred to herein collectively as the
"Additional Charges"). Except as otherwise provided in this Lease, all
Additional Charges shall become due and payable at the earlier of (i) thirty
(30) days after either Landlord or the applicable third party delivery of an
invoice to Tenant, or (ii) the date of delinquency with respect to Impositions.
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4.8 LATE PAYMENT OF RENT. Tenant hereby acknowledges that late
payment by Tenant to Landlord of Base Rent, Percentage Rent or Additional
Charges will cause Landlord to incur costs not contemplated under the terms of
this Lease, the exact amount of which is presently anticipated to be extremely
difficult to ascertain. Such costs may include processing and accounting
charges and late charges which may be imposed on Landlord by the terms of any
mortgage or deed of trust covering the Property and other expenses of a similar
or dissimilar nature. Accordingly, if any installment of Base Rent, Percentage
Rent or Additional Charges (but only as to those Additional Charges which are
payable directly to Landlord) shall not be paid within ten (10) days after the
date such payment is due following written notice thereof from Landlord to
Tenant, Tenant will pay Landlord on demand, as Additional Charges, a late charge
equal to three percent (3%) of such installment. The parties agree that this
late charge represents a fair and reasonable estimate of the costs that Landlord
will incur by reason of late payment by Tenant and is not a penalty. In
addition, if any installment of Base Rent, Percentage Rent or Additional Charges
(but only as to those Additional Charges which are payable directly to Landlord)
shall not be paid within five (5) days after the due date with respect to Base
Rent or Percentage Rent or delivery of an invoice to Tenant with respect to the
Additional Charge, the amount unpaid shall bear interest, from such due date to
the date of payment thereof, computed at the Overdue Rate on the amount of such
installment, and Tenant will pay such interest to Landlord as Additional
Charges. The acceptance of any late charge or interest shall not constitute a
waiver of, nor excuse or cure, any default under this Lease, nor prevent
Landlord from exercising any other rights and remedies available to Landlord.
4.9 NET LEASE; CAPITAL REPLACEMENT RESERVE. This Lease shall be a
triple net lease and Rent shall be payable to Landlord without notice or demand
and without set-off, counterclaim, recoupment, abatement, suspension, determent,
deduction or defense, except as expressly provided herein, so that this Lease
shall yield to Landlord the full amount of the installments of Base Rent,
Percentage Rent and Additional Charges throughout the Term. Without limiting
the foregoing, Tenant shall pay to Landlord on a monthly basis along with Base
Rent, as additional rent, an amount equal to one-twelfth (1/12) of the Capital
Replacement Reserve. Such amounts shall be subject to reconciliation at the end
of each Fiscal Quarter and at the end of each Fiscal Year.
4.10 ADJUSTMENT IN ANNUAL BASE RENT FOR SALE OF ADJACENT PROPERTY.
Approximately fourteen (14) acres of land adjacent to the Property (the
"Adjacent Property") is owned by an affiliate of Landlord (the "Affiliate
Owner"). Landlord and Tenant desire to have the Affiliate Owner sell the
Adjacent Property as soon as reasonably possible, at the maximum price possible.
Affiliate Owner will not sell the Adjacent Property
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for a period of ninety (90) days from the Commencement Date without the Tenant's
approval, which approval the Tenant may withhold in its sole discretion for the
first eighteen (18) months of the Lease and in its reasonable discretion
thereafter. The determination of whether Tenant is being reasonable shall be
determined by mediation and arbitration as provided in Section 27.1. If after
such ninety (90) day period the Affiliate Owner wishes to accept an offer to
sell the Adjacent Property, then Landlord shall give written notice to Tenant
for Tenant's approval of the terms and conditions of such sale for Tenant's
approval as provided above. If the Affiliate Owner elects to sell such
property, then the Annual Base Rent shall be adjusted downward by the positive
difference (and upward by the negative difference), if any, between the
aggregate net sales proceeds of such property less (A) Three Million Six Hundred
Thousand Dollars ($3,600,000) increased from the Commencement Date by ten
percent (10%) per annum compounded (pro rated for partial periods), and (B) and
any real property taxes and income taxes and other operating costs incurred by
the Affiliate Owner in owning and selling such property, MULTIPLIED BY nine
percent (9%) (twelve percent (12%) if Landlord requests Tenant's approval for a
sale of the Adjacent Property for an amount which would not result in an
increase in the Annual Base Rent and Tenant withholds its approval for such
transaction). For example, if the Adjacent Property is sold for Five Million
Dollars ($5,000,000) on the first anniversary of the Commencement Date, and the
taxes and operating expenses are Two Hundred Thousand Dollars, then the Annual
Base Rent would be reduced by Seventy-Five Thousand Six Hundred Dollars
($75,600).
ARTICLE 5
ADDITIONAL SECURITY
5.1 SECURITY DEPOSIT. Intentionally Omitted.
5.2 ADDITIONAL SECURITY. In connection with, and as a condition
to the effectiveness of, this Lease, Tenant shall cause to be delivered to
Landlord a limited lease guaranty and a letter of credit agreement
(collectively, the "Additional Security") in the form attached hereto as EXHIBIT
D, executed by Great Universal Capital Associates, L.P. and EGSB, LLC, a
Delaware limited liability company, respectively.
5.3 LANDLORD'S LIEN. To the fullest extent permitted by
applicable law, Landlord is granted a lien and security interest on all of
Tenant's personal property now or hereafter located on the Property (exclusive
of any artwork or telecommunication or computer system paid for by Tenant and
not advanced by or on behalf of Landlord pursuant to Section 12.3 or otherwise),
and such lien and security interest shall remain attached to Tenant's personal
property until payment in full of all Rent and satisfaction of all of Tenant's
obligations hereunder; provided, however, Landlord shall subordinate its lien
23
and security interest only to that of any third party lender or seller which
finances Tenant's personal property, the terms and conditions of such
subordination to be satisfactory to Landlord in its reasonable discretion.
Tenant shall, upon the request of Landlord, execute such financing statements or
other documents or instruments reasonably requested by Landlord to perfect the
lien and security interests herein granted.
ARTICLE 6
IMPOSITIONS
6.1 PAYMENT OF IMPOSITIONS. Subject to Section 6.3 and Section
17.9, Tenant will pay, or cause to be paid, all Impositions before any fine,
penalty, interest or cost may be added for non-payment, such payments to be made
directly to the taxing authorities where feasible. All payments of Impositions
shall be subject to Tenant's right of contest pursuant to the provisions of
Article 14. Upon request, Tenant shall promptly furnish to Landlord copies of
official receipts, if available, or other satisfactory proof evidencing such
payments, such as cancelled checks.
6.2 INFORMATION AND REPORTING. Landlord shall give prompt notice
to Tenant of all Impositions payable by Tenant hereunder of which Landlord at
any time has actual knowledge, but Landlord's failure to give any such notice
shall in no way diminish Tenant's obligations hereunder to pay such Impositions.
Landlord and Tenant shall, upon reasonable request of the other, provide such
data as is maintained by the party to whom the request is made with respect to
the Property as may be necessary to prepare any required returns and reports.
In the event any applicable governmental authorities classify any property
covered by this Lease as personal property, Tenant shall file all personal
property tax returns in such jurisdictions where it must legally so file. Each
party, to the extent it possesses the same, will provide the other party, upon
reasonable request, with cost and depreciation records necessary for filing
returns for any property so classified as personal property.
6.3 PRORATIONS. Impositions imposed in respect of the tax-fiscal
period during which the Lease commences or terminates shall be adjusted and
prorated between Landlord and Tenant, whether or not such Imposition is imposed
before or after such commencement or termination, and Tenant's obligation to pay
its prorated share thereof shall survive such termination. If any Imposition
may, at the option of the taxpayer, lawfully be paid in installments (whether or
not interest shall accrue on the unpaid balance of such Imposition), Tenant may
elect to pay in installments, in which event Tenant shall pay all installments
(and any accrued interest on the unpaid balance of the Imposition) that are due
during the Term hereof before any fine, penalty, premium, further interest or
cost may be added thereto.
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6.4 REFUNDS. If any refund shall be due from any taxing authority
in respect of any Imposition paid by Tenant, the same shall be paid over to or
retained by Tenant if no Event of Default shall have occurred hereunder and be
continuing. Any such funds retained by Landlord due to an Event of Default
shall be applied as provided in Article 17.
6.5 UTILITY CHARGES. Tenant shall pay or cause to be paid prior
to delinquency charges for all utilities and services, including, without
limitation, electricity, telephone, trash disposal, gas, oil, water, sewer,
communication and all other utilities used in the Property during the Term.
6.6 ASSESSMENT DISTRICTS. Landlord shall not voluntarily consent
to or agree in writing to (i) any special assessment or (ii) the inclusion of
any material portion of the Leased Property into a special assessment district
or other taxing jurisdiction unless Tenant shall have consented thereto, which
consent shall not be unreasonably withheld or unless Landlord agrees to pay the
cost thereof.
ARTICLE 7
TENANT WAIVERS
7.1 NO TERMINATION, ABATEMENT, ETC. Subject to Article 21 and
except as otherwise specifically provided in this Lease, and except for those
causes resulting from the willful misconduct or gross negligence of Landlord or
any person whose claim arose under Landlord or as a result of Landlord's failure
to fund any amounts payable to Tenant in accordance with the terms of the Lease,
(i) Tenant, to the extent permitted by law, shall remain bound by this Lease in
accordance with its terms and shall neither take any action without the consent
of Landlord to modify, surrender or terminate the same, nor be entitled to any
abatement, deduction, deferment or reduction of Rent, or set-off against the
Rent by reason of, and (ii) the respective obligations of Landlord and Tenant
shall not be otherwise affected by reason of:
(a) any damage to, or destruction of, any Property or any portion
thereof from whatever cause or any taking of the Property or any portion
thereof except as otherwise expressly provided;
(b) any claim which Tenant has or might have against Landlord or
by reason of any default or breach of any warranty by Landlord under this
Lease or any other agreement between Landlord and Tenant, or to which
Landlord and Tenant are parties;
(c) any bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding
25
up or other proceedings affecting Landlord or any assignee or transferee of
Landlord; or
(d) for any other cause whether similar or dissimilar to any of
the foregoing other than a discharge of Tenant from any such obligations as
a matter of law.
Tenant hereby specifically waives all rights, arising from any
occurrence whatsoever, which may now or hereafter be conferred upon it by law
(i) to modify, surrender or terminate this Lease or quit or surrender the
Property or any portion thereof, or (ii) to entitle Tenant to any abatement,
reduction, suspension or deferment of the Rent or other sums payable by Tenant
hereunder, except as otherwise specifically provided in this Lease. Except for
Landlord's obligation to make payments to Tenant, the obligations of Landlord
and Tenant hereunder shall be separate and independent covenants and agreements
and the Rent and all other sums payable by Tenant hereunder shall continue to be
payable in all events unless the obligations to pay the same shall be terminated
pursuant to the express provisions of this Lease or by termination of this Lease
other than by reason of an Event of Default.
7.2 CONDITION OF THE PROPERTY. Tenant acknowledges receipt and
delivery of possession of the Property and that Tenant has examined and
otherwise has knowledge of the condition of the Property prior to the execution
and delivery of this Lease and has found the same to be in good order and repair
and satisfactory for its purposes hereunder. Regardless, however of any
inspection made by Tenant of the Property and whether or not any patent or
latent defect or condition was revealed or discovered thereby, Tenant is leasing
the Property "as is" in its present condition. Tenant waives and releases any
claim or cause of action against Landlord with respect to the condition of the
Property including any defects or adverse conditions latent or patent, matured
or unmatured, known or unknown by Tenant or Landlord as of the date hereof,
including, without limitation, claims resulting from the existence of Hazardous
Materials on the Property. TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS
LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR
SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS
OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING ANY WARRANTY OR
REPRESENTATION AS TO (i) ITS FITNESS, DESIGN OR CONDITION FOR ANY PARTICULAR USE
OR PURPOSE, (ii) THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, (iii) THE
EXISTENCE OF ANY DEFECT, LATENT OR PATENT, (iv) LANDLORD'S TITLE THERETO, (v)
VALUE, (vi) COMPLIANCE WITH SPECIFICATIONS, (vii) LOCATION, (viii) USE, (ix)
CONDITION, (x) MERCHANTABILITY, (xi) QUALITY, (xii) DESCRIPTION, (xiii)
DURABILITY, (xiv) OPERATION, (xv) THE EXISTENCE OF ANY HAZARDOUS MATERIAL OR
(xvi) COMPLIANCE OF THE PROPERTY WITH ANY LAW (INCLUDING ENVIRONMENTAL LAWS) OR
LEGAL REQUIREMENTS. TENANT ACKNOWLEDGES THAT THE PROPERTY IS OF ITS SELECTION
AND TO ITS
26
SPECIFICATIONS AND THAT THE PROPERTY HAS BEEN INSPECTED BY TENANT AND IS
SATISFACTORY TO IT. IN THE EVENT OF ANY DEFECT OR DEFICIENCY IN THE PROPERTY OF
ANY NATURE, WHETHER LATENT OR PATENT, AS BETWEEN LANDLORD AND TENANT, LANDLORD
SHALL NOT HAVE ANY RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO OR FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING STRICT LIABILITY IN TORT). THE
PROVISIONS OF THIS SECTION 7.2 HAVE BEEN NEGOTIATED AND REVIEWED BY TENANT'S
LEGAL COUNSEL, AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY
WARRANTIES BY LANDLORD, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY,
ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY OTHER LAW NOW OR
HEREAFTER IN EFFECT OR ARISING OTHERWISE.
Tenant represents to Landlord that Tenant has examined the title to
the Property prior to the execution and delivery of this Lease and has found the
same to be satisfactory for the purposes contemplated hereby. Tenant
acknowledges that fee simple title (both legal and equitable) is in Landlord and
that Tenant has only the leasehold right of possession and use of the Property
as provided herein.
Notwithstanding anything to the contrary in this Lease, nothing in
this Section 7.2 is intended to waive, modify or limit in any respect any of
Tenant's rights set forth in this Lease including, without limitation, such
rights as are set forth under Section 3.3, Article 15, Article 16 and Article
21.
ARTICLE 8
OWNERSHIP OF TANGIBLE PERSONAL PROPERTY
8.1 PROPERTY. Tenant acknowledges that (i) the Property has been
transferred to Landlord and leased to Tenant, (ii) the Property is the property
of Landlord and (iii) that Tenant has only the right to the use of such Property
during the Term of and upon the terms and conditions of this Lease.
8.2 TENANT'S PERSONAL PROPERTY. Subject to the provisions of
Articles 15 and 16, Tenant shall maintain all of the Property, whether initially
included in the Lease or thereafter acquired by Landlord or Tenant, in good
condition and repair, normal wear and tear excepted. Upon the loss, destruction
or obsolescence of any Tangible Personal Property, Tenant shall replace such
property with replacements of the same type and quality as initially in place,
which such property will be owned by Tenant except to the extent acquired with
funds from the Capital Replacement Fund ("Tenant's Personal Property").
Tenant's Personal Property shall not include its artwork or telecommunication or
computer systems (except to the extent paid for by Landlord pursuant to Section
12.3 or otherwise) or any of its trade secrets. Upon the expiration or sooner
termination of this Lease, the Tenant's Personal Property shall transfer to
Landlord without requirement of any bill of sale or assignment;
27
provided Landlord, at its election, may require Tenant to execute such
documentation as Landlord may require to evidence such transfer. Tenant shall
not remove any Tangible Personal Property from the Property upon termination of
the Lease. If any of such Tangible Personal Property is stored away from the
Property, Tenant will provide Landlord with proper access to the storage
facility.
8.3 TENANT'S OBLIGATIONS. Tenant shall provide and maintain, or
cause to be provided and maintained, during the entire term of the Lease, all
Tangible Personal Property, as well as merchandise for sale to the public, and
food and beverage, as shall be necessary in order to operate the Property in
compliance with (a) all applicable Legal Requirements, (b) customary practices
in the golf industry for a first-class golf course, and (c) such other
reasonable requirements imposed by Landlord from time to time.
8.4 LANDLORD'S WAIVERS. Any lessor of Tenant's Personal Property
may, upon notice to Landlord and during reasonable hours, enter the Property and
take possession of any of Tenant's Personal Property without liability for
trespass or conversion upon a default by Tenant, provided that such lessor
provide Landlord with the opportunity to cure the defaults of Tenant on terms
and conditions satisfactory to such lessor and Landlord.
ARTICLE 9
USE OF PROPERTY
9.1 USE. After the Commencement Date and during the Term, Tenant
shall use or cause to be used the Property and the improvements thereon for its
Primary Intended Use. Tenant shall not use the Property or any portion thereof
for any other use without the prior written consent of Landlord, which consent
Landlord may withhold in its sole discretion. No use shall be made or permitted
to be made of the Property, and no acts shall be done, which will cause the
cancellation of any insurance policy covering the Property or any part thereof,
nor shall Tenant sell or otherwise provide to patrons, or permit to be kept,
used or sold in or about the Property any article which is prohibited by law or
by the standard form of fire insurance policies, or any other insurance policies
required to be carried hereunder, or fire underwriters regulations. Tenant
shall, at its sole cost, comply with all of the requirements pertaining to the
Property or other improvements of any insurance board, association, organization
or company necessary for the maintenance of insurance, as herein provided,
covering the Property and Tenant's Personal Property.
9.2 SPECIFIC PROHIBITED USES. Tenant shall not use or occupy or
permit the Property to be used or occupied, nor do or permit anything to be done
in or on the Property, in a manner
28
which would (i) violate any law, rule or regulation or Legal Requirement, (ii)
subject to Article 12, cause structural injury to any of the Improvements or
(iii) constitute a public or private nuisance or waste. Tenant shall not cause
any Hazardous Material to be located in, on or under the Property, or any
adjacent property, or incorporated in the Property or any improvements thereon
except in compliance with applicable law (including any Environmental Laws).
Tenant shall not cause the Property to be used as a landfill or a waste disposal
site, or a manufacturing, distribution or disposal facility for any Hazardous
Materials. Tenant shall not cause the Property or any portion thereof,
including Tenant's Personal Property, to be used in such a manner as (i) might
reasonably tend to impair Landlord's title thereto or to any portion thereof, or
(ii) may reasonably make possible a claim or claims of adverse usage or adverse
possession by the public, as such, or of implied dedication of the Property or
any portion thereof, or (iii) to materially violate any applicable Environmental
Law.
9.3 MEMBERSHIP SALES; PREFERRED TEE TIMES. Tenant shall not sell
and/or classify or reclassify memberships, or set initiation fees, dues and
other charges or materially increase or decrease the number of memberships
available at the Property, except as approved by Landlord, in Landlord's
reasonable discretion. In addition, Tenant shall not enter into preferred tee
time arrangements or any exclusive arrangements with any hotel operators or
other lodging operators without the prior approval of Landlord, which approval
Landlord may withhold in its reasonable discretion. Landlord has approved the
Golf Utilization Agreement attached hereto as EXHIBIT F. Landlord acknowledges
that such restriction shall not limit the right of any hotel owned by any
affiliate of Lessee from membership or club interests in such hotel which
include rights to play golf in accordance with the provisions of the Golf
Utilization Agreement.
9.4 LANDLORD TO GRANT EASEMENTS, ETC. Landlord shall, from time
to time so long as no Event of Default has occurred and is continuing, at the
request of Tenant and at Tenant's cost and expense (but subject to the approval
of Landlord, which approval shall not be unreasonably withheld or delayed): (i)
grant easements and other rights in the nature of easements; (ii) release
existing easements or other rights in the nature of easements which are for the
benefit of the Property; (iii) dedicate or transfer unimproved portions of the
Property for road, highway or other public purposes; (iv) execute petitions to
have the Property annexed to any municipal corporation or utility district; (v)
execute amendments to any covenants and restrictions affecting the Property; and
(vi) execute and deliver to any person any instrument appropriate to confirm or
effect such grants, releases, dedications and transfers (to the extent of its
interest in the Property), but only upon delivery to Landlord of an Officer's
Certificate (which Officer's Certificate, if contested by Landlord, shall not be
binding on
29
Landlord) stating that such grant, release, dedication, transfer, petition or
amendment is not detrimental to the proper conduct of the business of Tenant on
the Property and does not reduce its value or usefulness for the Primary
Intended Use. Landlord shall not grant, release, dedicate or execute any of the
foregoing items in this Section 9.4 without obtaining Tenant's approval, which
approval shall not be unreasonably withheld or delayed.
9.5 TENANT'S ADDITIONAL COVENANTS. Tenant shall (a) join the
Advisory Association and cooperate in the activities of such association; (b) at
its election, engage in reasonable cross-marketing endeavors with the members of
the Advisory Association; and (c) at its election, provide signage (at the cost
of Landlord) on the Property which references that the Property is owned by
Landlord, which signage may include an appropriate logo selected by Landlord.
In addition, it is the intent of the parties that Tenant be a single-purpose
entity with no business operations except for those related solely to the
operation of the Property for its Primary Intended Use and other property of
Landlord which may be leased to Tenant. Tenant shall, therefore, not engage in
or undertake any activities other than those respecting the operation of the
Property for its Primary Intended Use, including leasing, managing, and
operating golf courses in accordance with this Lease.
9.6 VALUATION OF REMAINDER INTEREST IN LEASE. Tenant expects (but
does not guarantee) that the Land and each of the Improvements will have a fair
market value (determined without regard to any increase or decrease for
inflation or deflation during the Term) equal to at least twenty percent (20%)
of the fair market value of the Land and each of the Improvements at the
Commencement Date. Tenant expects (but does not guarantee) that the Land and
each of the Improvements will have a remaining useful life equal to at least
twenty percent (20%) of its expected useful life at the Commencement Date.
ARTICLE 10
HAZARDOUS MATERIALS
10.1 REMEDIATION. Subject to the limitations and exclusions
contained in the last sentence of Section 10.2, if Tenant becomes aware of the
presence of any Hazardous Material in a quantity sufficient to require
remediation or reporting under any Environmental Law in, on or under the
Property or if Tenant, Landlord, or the Property becomes subject to any order of
any federal, state or local agency to investigate, remove, remediate, repair,
close, detoxify, decontaminate or otherwise clean up the Property, Tenant shall,
at its sole expense, carry out and complete any required investigation, removal,
remediation, repair, closure, detoxification, decontamination
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or other cleanup of the Property. If Tenant fails to implement and diligently
pursue any such repair, closure, detoxification, decontamination or other
cleanup of the Property in a timely manner, Landlord shall have the right, but
not the obligation, to carry out such action and to recover its costs and
expenses therefor from Tenant as Additional Charges.
10.2 TENANT'S INDEMNIFICATION OF LANDLORD. Tenant shall pay,
protect, indemnify, save, hold harmless and defend Landlord, the Company,
Affiliates of the Company and Landlord (including, without limitation, their
respective officers, directors and controlling persons), and any Facility
Mortgagee from and against all liabilities, obligations, claims, damages
(including punitive or consequential damages), penalties, causes of action,
demands, judgments, costs and expenses (including reasonable attorneys' fees and
expenses), to the extent permitted by law, imposed upon or incurred by or
asserted against Landlord or the Property by reason of any Environmental Law
(irrespective of whether there has occurred any violation of any Environmental
Law) in respect of the Property howsoever arising, without regard to fault on
the part of Tenant, including (a) liability for response costs and for costs of
removal and remedial action incurred by the United States Government, any state
or local governmental unit to any other Person, or damages from injury to or
destruction or loss of natural resources, including the reasonable costs of
assessing such injury, destruction or loss, incurred pursuant to any
Environmental Law, (b) liability for costs and expenses of abatement,
investigation, removal, remediation, correction or clean-up, fines, damages,
response costs or penalties which arise from the provisions of any Environmental
Law, (c) liability for personal injury or property damage arising under any
statutory or common-law tort theory, including damages assessed for the
maintenance of a public or private nuisance or for carrying on of a dangerous
activity. Notwithstanding the foregoing or any other provision of this Lease
(including, without limitation, Section 7.2, Section 10.4 and Article 23),
Tenant shall not be liable, or otherwise be required to indemnify Landlord or
the Company or any Affiliates of the Company, or incur any costs in connection
with, (i) any environmental conditions that are existing on the Property on the
Commencement Date and the conditions are not exacerbated as a result of the
willful misconduct or gross negligence of Tenant (ii) any matters or events that
arise after the Commencement Date that are not caused by Tenant, or (iii) any
matters or events that arise after the Commencement Date that are directly
caused by a breach by Landlord of the terms of this Lease.
10.3 LANDLORD'S INDEMNIFICATION OF TENANT. Landlord shall pay,
protect, indemnify, save, hold harmless and defend Tenant, Affiliates of the
Tenant (including, without limitation, their respective officers, directors and
controlling persons), from and against all liabilities, obligations, claims,
damages (including punitive or consequential damages), penalties, causes of
action, demands, judgments, costs and expenses (including reasonable attorneys'
fees and expenses), to the extent permitted
31
by law, imposed upon or incurred by or asserted against Tenant or the Property
by reason of any Environmental Law (irrespective of whether there has occurred
any violation of any Environmental Law) in respect of the Property howsoever
arising, without regard to fault on the part of Landlord, including (a)
liability for response costs and for costs of removal and remedial action
incurred by the United States Government, any state or local governmental unit
to any other Person, or damages from injury to or destruction or loss of natural
resources, including the reasonable costs of assessing such injury, destruction
or loss, incurred pursuant to any Environmental Law, (b) liability for costs and
expenses of abatement, investigation, removal, remediation, correction or
clean-up, fines, damages, response costs or penalties which arise from the
provisions of any Environmental Law, (c) liability for personal injury or
property damage arising under any statutory or common-law tort theory, including
damages assessed for the maintenance of a public or private nuisance or for
carrying on of a dangerous activity. Notwithstanding the foregoing or any other
provision of this Lease, Landlord shall not be liable, or otherwise be required
to indemnify Tenant or any Affiliates of the Tenant or incur any costs to the
extent that Landlord is not indemnified by Arco for such liability pursuant to
the Third Amendment.
10.4 SURVIVAL OF INDEMNIFICATION OBLIGATIONS. Each party's
obligations and/or liability under this Article 10 arising during the Term
hereof shall survive any termination of this Lease.
ARTICLE 11
MAINTENANCE AND REPAIR
11.1 TENANT'S OBLIGATIONS. Except as otherwise expressly provided
in this Lease, Tenant, at its expense, will operate and maintain the Property in
good order, repair and appearance (whether or not the need for such repairs
occurs as a result of Tenant's use, any prior use, the elements or the age of
the Property or any portion thereof) and in accordance with any applicable Legal
Requirements, and, except as otherwise provided in this Lease, with reasonable
promptness, make all necessary and appropriate repairs thereto of every kind and
nature, whether interior or exterior, structural or non-structural, ordinary or
extraordinary, foreseen or unforeseen or arising by reason of a condition
existing prior to the Commencement Date (concealed or otherwise). Tenant shall
operate and maintain the Property in accordance with the operation and
maintenance practices of the Property at the Commencement Date and otherwise in
a manner comparable to other comparable golf course facilities in the vicinity
of the Property. Landlord may consult with the Advisory Association from time
to time with respect to Tenant's compliance with its maintenance and operation
obligations under this Section 11.1, and Landlord and representatives of
Advisory Association shall have the right from time to time to enter the
Property for
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the purpose of inspecting the Property. If Landlord, in consultation with the
Advisory Association, determines that Tenant has failed to comply with its
maintenance and operation obligations under this Section 11.1, Landlord shall
provide written notice to Tenant setting forth a list of remedial work and/or
steps to be performed by Tenant. Tenant shall promptly and diligently perform
such remedial work and/or steps as recommended by Landlord, provided if Tenant
objects to one or more of the remedial obligations proposed by Landlord, then
the matter shall be submitted to the dispute resolution procedure set forth in
Section 27.1.
11.2 WAIVER OF STATUTORY OBLIGATIONS. Landlord shall not under any
circumstances be required to build or rebuild any improvements on the Property,
or to make any repairs, replacements, alterations, restorations or renewals of
any nature or description to the Property, whether ordinary or extraordinary,
structural or non-structural, foreseen or unforeseen, or to make any expenditure
whatsoever with respect thereto, in connection with this Lease, or to maintain
the Property in any way. Tenant hereby waives, to the extent permitted by law,
the right to make repairs at the expense of Landlord pursuant to any law in
effect at the time of the execution of this Lease or hereafter enacted.
11.3 MECHANIC'S LIENS. Nothing contained in this Lease and no
action or inaction by Landlord shall be construed as (i) constituting the
consent or request of Landlord expressed or implied, to any contractor,
subcontractor, laborer, materialman or vendor to or for the performance of any
labor or services or the furnishing of any materials or other property for the
construction, alteration, addition, repair or demolition of or to the Property
or any part thereof; or (ii) giving Tenant any right, power or permission to
contract for or permit the performance of any labor or services or the
furnishing of any materials or other property, in either case, in such fashion
as would permit the making of any claim against Landlord in respect thereof or
to make any agreement that may create, or in any way be the basis for, any
right, title, interest, lien, claim or other encumbrance upon the estate of
Landlord in the Property, or any portion thereof.
11.4 SURRENDER OF PROPERTY. Unless the Lease shall have been
terminated pursuant to the provisions of Article 15, Tenant shall, upon the
expiration or prior termination of the Term, vacate and surrender the Property
to Landlord in the condition in which the Property was originally received from
Landlord, except as repaired, rebuilt, restored, altered or added to as
permitted or required by the provisions of this Lease and except for ordinary
wear and tear (subject to the obligation of Tenant to maintain the Property in
good order and repair during the entire Term of the Lease).
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ARTICLE 12
TENANT IMPROVEMENTS; SUBMITTAL OF BUDGETS; FINANCIAL STATEMENTS
12.1 TENANT'S RIGHT TO CONSTRUCT. Subject to the prior written
approval of Landlord in its reasonable discretion, during the Lease Term Tenant
may make alterations, additions, changes and/or improvements to the Property
(individually, a "Tenant Improvement," and collectively, "Tenant Improvements").
Notwithstanding the foregoing, if Tenant proposes to make any Tenant
Improvements that would create an additional source of revenue at the Property
(i.e., tennis courts, swim facility, etc.) that is not currently included in the
calculation of Gross Golf Revenue, Landlord shall not be obligated to consent to
such improvement unless the Percentage Rent is adjusted hereunder in a manner
satisfactory to Landlord. Any such Tenant Improvement shall be made at Tenant's
sole expense and shall become the property of Landlord upon termination of this
Lease. Unless made on an emergency basis to prevent injury to Person or
property, Tenant will submit plans and specifications for any Tenant
Improvements, in the form necessary for any required building permits, to
Landlord for Landlord's prior written approval, which approval shall be at
Landlord's reasonable discretion.
Upon approval by Landlord:
(a) Tenant shall diligently seek all governmental approvals and
any other necessary private approvals (E.G., ground lessor, mortgagee,
etc.) relating to the construction of any Tenant Improvement; and
(b) once Tenant begins the construction of any Tenant Improvement,
Tenant shall diligently prosecute any such Tenant Improvement to completion
in accordance with applicable insurance requirements and the laws, rules
and regulations of all governmental bodies or agencies having jurisdiction
over the Property; and
(c) Subject to Landlord's obligation to make funds available to
Tenant as provided in Section 12.3 and Section 12.4, Tenant shall not
suffer or permit any mechanics' liens or any other claims or demands
arising from the work of construction of any Tenant Improvement to be
enforced against the Property or any part thereof, and Tenant agrees to
hold Landlord and the Property free and harmless from all liability from
any such liens, claims or demands, together with all costs and expenses in
connection therewith; and
(d) all work shall be performed in a good and workmanlike manner.
12.2 SCOPE OF RIGHT. Subject to Section 12.1, at Tenant's cost and
expense, Tenant shall have the right to:
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(a) seek any governmental approvals, including building permits,
licenses, conditional use permits and any certificates of need that Tenant
requires to construct any Tenant Improvement;
(b) erect upon the Property such Tenant Improvements as Tenant
deems desirable; and
(c) engage in any other lawful activities that Tenant determines
are necessary or desirable for the development of the Property in
accordance with its Primary Intended Use.
12.3 COOPERATION OF LANDLORD.
(a) On the Commencement Date Landlord shall make available to Tenant
up to Six Million Dollars ($6,000,000) for capital improvements and certain
other expenses described in this Section 12.3 ("Capital Improvements") for
purposes of redesigning and renovating the existing facilities on the Property.
Tenant shall be responsible for securing bids and estimates for the work and for
supervising such work and shall endeavor to ensure that the work is done in a
timely manner and in a good and workman-like fashion. Neither Tenant nor any
Affiliate of Tenant or any owner or member of Tenant shall receive any
construction management or other fee in connection with the completion of the
Capital Improvements, provided Environmental Golf or any Affiliate thereof shall
be entitled to reimbursement in connection with the Capital Improvements in an
amount equal to ten percent (10%) of the total direct cost of the Capital
Improvements, including an allocation for equipment (or twenty percent (20%)
without any allocation for equipment) as more particularly set forth on EXHIBIT
G attached hereto. An estimated schedule and description of the Capital
Improvements is more particularly described in EXHIBIT G attached hereto. Prior
to the disbursement of any funds for Capital Improvements, Tenant shall submit
to Landlord for its approval (i) plans and specifications for such Capital
Improvements; (ii) a detailed budget for such Capital Improvements including the
cost of permits and related items; (iii) a construction schedule for such
Capital Improvements; and (iv) a cost plus with a guaranteed maximum price
construction contract executed by Environmental Golf in a form and substance
satisfactory to Landlord and with a payment and completion bond from a surety
acceptable to Landlord. Landlord's approval of such items shall be in its
reasonable discretion.
Landlord shall also cooperate with Tenant and take such actions,
including the execution and delivery to Tenant of any applications or other
documents, reasonably requested by Tenant in order to obtain any governmental
approvals sought by Tenant to construct any Tenant Improvement approved by
Landlord in accordance with Section 12.1 of this Lease within ten (10) Business
Days following the later of (a) the date Landlord
35
receives Tenant's request, or (b) the date of delivery of any such application
or document to Landlord, so long as the taking of such action, including the
execution of said applications or documents, shall be without cost to Landlord
(or if there is a cost to Landlord, such cost shall be reimbursed by Tenant or
payable out of the Capital Replacement Fund), and will not cause Landlord to be
in violation of any law, ordinance or regulation.
Landlord shall have the right at any time and from time to time to
post and maintain upon the Property such notices as may be necessary to protect
Landlord's interest from mechanics' liens, materialmen's liens or liens of a
similar nature.
(b) In addition Landlord shall also make available to Tenant a loan,
on a non-recourse basis, to be evidenced by a promissory note, up to an
additional Five Million Dollars ($5,000,000) (the "Loan Amount") during the
first four (4) Fiscal Years of the Initial Term. Upon written notice to
Landlord which details the use to which such funds shall be applied and the
unavailability of operating cash flow sufficient to make such payments, and
subject to Landlord's approval, which shall not be unreasonably withheld, Tenant
may apply all or any part of the Loan Amount to satisfy Tenant's obligations
under this Lease. Landlord's failure to make all or any portion of the Loan
Amount available to Tenant shall during any period in which there is not
sufficient operating cash flow shall permit Tenant to abate Rent to the amount
of the requested draw and such abatement shall be deemed an advance of the Loan
Amount. No more than One Million Dollars ($1,000,000) shall be drawn down
during the period prior to the redesign and renovation of the golf course on the
Property. The Loan Amount will be applied in the following priority: (i) first,
to fund any portion of the Annual Base Rent or Percentage Rent; and (ii) second,
to fund operating expenses for the Property (including, without limitation,
payroll expenses). No more than Two Hundred Thousand Dollars ($200,000) per year
of the Loan Amount may be allocated to distributions or management fees to
Tenant or any Affiliate of Tenant. Such management fee or amount, pro rated for
partial years, shall only be payable during the period prior to the redesign and
renovation of the golf course on the Property. Interest on the Loan Amount
shall accrue at nine percent (9%) per annum, shall be payable monthly in arrears
from the date of disbursement and all principal shall be due and payable at the
expiration of the Lease. Interest on the Loan Amount shall be increased
annually by the Base Escalator if and to the same extent that Base Rent is
subject to increase by the Base Escalator.
12.4 CAPITAL REPLACEMENT FUND. Solely from the payment of
additional rent received pursuant to Section 4.9 of this Lease, Landlord shall
be obligated to accrue the Capital Replacement Reserve beginning with the
calendar year 2001 or in the event the Property undergoes a significant redesign
and
36
renovation as contemplated by Section 12.3, the Capital Replacement Reserve
shall not commence until the first day following four (4) Fiscal Quarters after
the Property is reopened for business. The Capital Replacement Reserve shall
accrue quarterly based on the Officer's Certificate and shall be placed in the
Capital Replacement Fund. Amounts in the Capital Replacement Fund shall be
deemed to accrue interest at a money market rate as reasonably determined by
Landlord and such interest shall be credited to the Capital Replacement Fund.
Upon the written request by Tenant to Landlord stating the specific use to be
made and subject to the approval of Landlord, the Capital Replacement Fund shall
be made available to Tenant for Capital Expenditures; PROVIDED, HOWEVER, no
portion of amounts credited to the Capital Replacement Fund shall be used to
purchase property to the extent that doing so would cause Landlord to recognize
income other than "rents from real property" as defined in Section 856(d) of the
Code. Tenant shall have no rights with respect to any amounts in the Capital
Replacement Fund except as provided herein. Subject to Landlord's approval of
the Capital Expenditures, Landlord shall make available to Tenant amounts from
the Capital Replacement Fund under the following conditions (with payment being
made to Tenant within ten (10) days from Tenant's request):
(a) No Event of Default exists and is continuing;
(b) Tenant presents invoices for payment or paid qualifying
receipts for reimbursement;
(c) Such expenditures are included in the Capital Budget submitted
to and approved by Landlord in accordance with Section 12.7; and
(d) If from time to time Tenant shall expend monies beyond the
balance in the Capital Replacement Fund, then Tenant shall be afforded the
opportunity to present such paid invoices for reimbursement at later dates
when the Tenant's reserve balance shall be replenished to a level that can
support such expenditure.
Upon the expiration of the Lease, any balance in the Capital Replacement Fund
shall be applied as follows:
(i) first, to pay for any improvements, repairs or capital
improvements necessary to ensure that the golf course on the Property on such
date is in first-class condition and repair;
(ii) to any accruals, sinking funds or the like set forth in
the Capital Budget for repairs, improvements or replacements for items such as
roofs, sprinkler systems and other similar items which will need to be replaced
in the future; and
(iii) the balance to Tenant.
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12.5 RIGHTS IN TENANT IMPROVEMENTS. All Tenant Improvements shall
be the property of Landlord, except to the extent necessary for Tenant to have
title in order for Tenant to be entitled to federal and state income tax
benefits associated with Tenant Improvements as hereinafter stated. However,
Tenant shall be entitled to all federal and state income tax benefits associated
with any Tenant Improvement during the Lease Term exclusive of any Capital
Expenditures paid for from amounts credited to the Capital Replacement Fund, as
to which Landlord shall be entitled all income tax benefits.
12.6 LANDLORD'S RIGHT TO AUDIT CALCULATION OF GROSS REVENUE.
Landlord, at its own expense except as provided hereinbelow, shall have the
right from time to time, but not more often than once per year, directly or
though its accountants to audit the information set forth in the Officer's
Certificate referred to in Section 4.4 and in connection with such audits to
examine Tenant's book and records with respect thereto (including supporting
data, sales tax returns and Tenant's work papers). If any such audit discloses
a deficiency in the payment of Percentage Rent, Tenant shall forthwith pay to
Landlord the amount of the deficiency as finally agreed or determined, together
with interest at the Overdue Rate from the date when said payment should have
been made to the date of payment thereof; PROVIDED, HOWEVER, that as to any
audit that is commenced more than twelve (12) months after the date Gross
Revenue for any Fiscal Year is reported by Tenant to Landlord in the Officer's
Certificate, the deficiency, if any, with respect to such Gross Revenue shall
bear interest as permitted herein only from the date such determination of
deficiency is made unless such deficiency is the result of gross negligence or
willful misconduct on the part of Tenant. If any such audit discloses that the
Gross Revenue actually received by Tenant for any Fiscal Year exceeds the Gross
Revenue reported by Tenant in the Officer's Certificate by more than three
percent (3%), then Tenant shall pay all reasonable costs of such audit and
examination; provided Tenant shall have the right to submit the audit
determination to arbitration in accordance with the procedures set forth in
Article 27. Landlord shall also have the right to review and audit from time to
time, but not more often than once per year, Tenant's business operations
including all books, records and financial statements of Tenant. Tenant shall
promptly provide to Landlord copies of all such books, records, financial
statements or any other documentation of Tenant's business operations reasonably
requested by Landlord. Landlord shall not use any auditor in connection with
audits permitted under this Lease whose fee is dependent, in whole or in part,
on the result achieved by such audit.
12.7 ANNUAL BUDGET. Not later than ninety (90) days prior to the
commencement of each Fiscal Year, Tenant shall prepare and submit to Landlord an
operating budget (the
38
"Operating Budget") and a capital budget (the "Capital Budget") prepared in
accordance with the requirements of this Section 12.7. The Operating Budget and
the Capital Budget (together, the "Annual Budget") shall be prepared in a form
approved by Landlord for use throughout the Lease Term and show by quarter and
for the year as a whole the following:
(a) Tenant's reasonable estimate of Gross Revenue (including
membership dues, daily use fees and other sources of Gross Revenue) and other
revenue for the forthcoming Fiscal Year itemized on schedules on a quarterly
basis as approved by Landlord and Tenant, together with assumptions, in
narrative form, forming the basis of such schedules.
(b) An estimate of any amounts Landlord will be requested to
provide for Capital Expenditures during the next four Fiscal Years, subject to
the limitations set forth in Section 12.4.
(c) A cash flow projection.
(d) A narrative description of any anticipated significant events,
including, if requested by Landlord, a narrative description of any category of
operating expenses that decrease or increase by five percent (5%) or more from
the prior year's expenses.
(e) Tenant's reasonable estimate for each Fiscal Quarter of the
Percentage Rent to be paid for such quarter.
Landlord shall have thirty (30) days after the date on which it
receives the Annual Budget to review, approve or disapprove the Annual Budget.
If the parties are not able to reach agreement on the Annual Budget for any
Fiscal Year during Landlord's thirty (30) day review period, the parties shall
attempt in good faith during the subsequent thirty (30) day period to resolve
any disputes, which attempts shall include, if requested by either party, at
least one (1) meeting of executive-level officers of Landlord and Tenant and one
(1) meeting with the directors of the Advisory Association. In the event the
parties are still not able to reach agreement on the Annual Budget for any
particular Fiscal Year after complying with the foregoing requirements of this
Section 12.7, the parties shall adopt such portions of the Operating Budget and
the Capital Budget as they may have agreed upon, and any matters not agreed upon
shall be referred to the dispute resolution process set forth in this Lease for
resolving disputes between Landlord and Tenant. Pending the results of such
resolution or the earlier agreement of the parties, (i) if the Operating Budget
has not been agreed upon, the Property will be operated in a manner consistent
with the prior year's Operating Budget until a new Operating Budget is adopted,
and (ii) if the Capital Budget has not been agreed upon, no Capital Expenditures
shall be made
39
unless the same are set forth in a previously approved Capital Budget or are
specifically agreed to by Landlord and Tenant or are otherwise required to
comply with Legal Requirements or Insurance Requirements. Tenant shall use its
good faith and reasonable efforts to operate the Property in a manner reasonably
consistent with the Annual Budget.
12.8 FINANCIAL STATEMENTS.
(a) Tenant shall utilize, or cause to be utilized, an accounting
system for the Property in accordance with its usual and customary practice, and
in accordance with GAAP, that will accurately record all data necessary to
compute Percentage Rent, and Tenant shall retain for at least five (5) years
after the expiration of each Fiscal Year, reasonably adequate records conforming
to such accounting system showing all data necessary to compute Percentage Rent.
The books of account and all other records relating to or reflecting the
operation of the Property shall be kept either at the Property or at Tenant's
offices in Calabassas, California. Such books and records shall be available to
Landlord and its representatives for examination, audit, inspection and
transcription.
(b) Tenant shall furnish to Landlord within thirty (30) days of
the end of each Fiscal Quarter unaudited financial statements for the Fiscal
Quarter and year to date, together with the same information for the comparable
prior Fiscal Quarter and year to date, including the following: results of
operations, a balance sheet, statements of cash flows and statement of changes
in owner's equity. If Landlord requests, Tenant shall provide reviewed
financial statements for such Fiscal Quarter; provided, however, such review
shall be at Landlord's expense. Each quarterly report shall also include a
narrative explaining any deviation in any major revenue or expense category or
operating expenses (by category) of more than ten percent (10%) from the amounts
set forth on the Annual Budget, together with, if appropriate a revised Annual
Budget, which budget shall be subject to Landlord's review and approval as
provided in Section 12.7. Each quarterly report shall also forecast any
projected Percentage Rent payable for the following Fiscal Quarter.
(c) For each Fiscal Year, Tenant shall deliver to Landlord within
sixty (60) days of the end of such Fiscal Year financial statements prepared in
accordance with GAAP and audited by an independent accounting firm approved by
Landlord, in its reasonable discretion. Notwithstanding the foregoing, Landlord
shall only require audited financial statements of Gross Revenue if Tenant's
financial statements are not required to be separately stated by the Securities
and Exchange Commission.
(d) If requested by Landlord, Tenant will make available to
Landlord and the Company and their respective lenders, underwriters, counsel,
accountants and advisors such
40
additional information and financial statements with respect to Tenant and the
Property as Landlord may reasonably request without any additional cost to
Tenant, and Tenant agrees to reasonably cooperate with Landlord and the Company
in effecting public or private debt or equity financings by the Landlord or the
Company, without any additional cost to Tenant, modifications to this Lease or
the requirement of additional collateral from Tenant.
ARTICLE 13
LIENS, ENCROACHMENTS AND OTHER TITLE MATTERS
13.1 LIENS. Subject to the provisions of Article 14 relating to
permitted contests, Tenant will not directly or indirectly create and will
promptly discharge at its expense any lien, encumbrance, attachment, title
retention agreement or claim upon the Property or any attachment, levy, claim or
encumbrance emanating from Tenant's actions or negligence, not including,
however:
(a) this Lease;
(b) the matters, if any, that existed as of the Commencement Date,
as set forth on the title policy received by Landlord;
(c) restrictions, liens and other encumbrances which are consented
to in writing by Landlord, or any easements granted pursuant to the
provisions of Section 9.4 of this Lease;
(d) liens for those taxes of Landlord which Tenant is not required
to pay hereunder;
(e) subleases or licenses permitted by Article 23;
(f) liens for Impositions or for sums resulting from noncompliance
with Legal Requirements so long as (1) the same are not yet payable or are
payable without the addition of any fine or penalty or (2) such liens are
in the process of being contested as permitted by Article 14;
(g) liens of mechanics, laborers, materialmen, suppliers or
vendors for sums either disputed (PROVIDED THAT such liens are in the
process of being contested as permitted by Article 14) or not yet due; and
(h) any liens which are created by or through Landlord or the
responsibility of Landlord pursuant to the provisions of Article 25.
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13.2 ENCROACHMENTS AND OTHER TITLE MATTERS. Subject to Article 21
and excepting any matters granted or created by Landlord or matters existing as
of the Commencement Date (which matters shall be the responsibility of Landlord
unless set forth in the survey of the Property previously delivered to Tenant
and then only to the extent that no material expenditure shall be required by
Tenant), if any of the Improvements shall, at any time, encroach upon any
property, street or right-of-way adjacent to the Property, or shall violate the
agreements or conditions contained in any lawful restrictive covenant or other
agreement affecting the Property, or any part thereof, or shall impair the
rights of others under any easement or right-of-way to which the Property is
subject, or the use of the Property is impaired, limited or interfered with by
reason of the exercise of the right of surface entry or any other rights under a
lease or reservation of any oil, gas, water or other minerals, then promptly
upon request of Landlord or at the behest of any person affected by any such
encroachment, violation or impairment, Tenant, at its sole cost and expense
(subject to its right to contest the existence of any such encroachment,
violation or impairment), shall protect, indemnify, save harmless and defend
Landlord, the Company and Affiliates of the Company from and against all losses,
liabilities, obligations, claims, damages, penalties, causes of action, costs
and expenses (including reasonable attorneys' fees and expenses) based on or
arising by reason of any such encroachment, violation or impairment and in such
case, in the event of an adverse final determination, either (i) obtain valid
and effective waivers or settlements of all claims, liabilities and damages
resulting from each such encroachment, violation or impairment, whether the same
shall affect Landlord or Tenant; or (ii) make such changes in the Improvements,
and take such other actions, as Tenant in the good faith exercise of its
judgment deems reasonably practicable, to remove such encroachment, and to end
such violation or impairment, including, if necessary, the alteration of any of
the Improvements, and in any event take all such actions as may be necessary in
order to be able to continue the operation of the Improvements for the Primary
Intended Use substantially in the manner and to the extent the Improvements were
operated prior to the assertion of such violation or encroachment. Tenant's
obligation under this Section 13.2 shall be in addition to and shall in no way
discharge or diminish any obligation of any insurer under any policy of title or
other insurance and Tenant shall be entitled to a credit for any sums recovered
by Landlord under any such policy of title or other insurance.
ARTICLE 14
PERMITTED CONTESTS
14.1 AUTHORIZATION. Tenant, on its own or on Landlord's behalf (or
in Landlord's name) but at Tenant's expense, may contest, by appropriate legal
proceedings conducted in good faith and with due diligence, the amount, validity
or
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application, in whole or in part, of any Imposition or any Legal Requirement or
Insurance Requirement, or any lien, attachment, levy, encumbrance, charge or
claim not otherwise permitted by Section 13.1; provided, however, that nothing
in this Section 14.1 shall limit the right of Landlord to contest the amount,
validity or application, in whole or in part, of any Imposition, Legal
Requirement, Insurance Requirement, or any lien, attachment, levy, encumbrance,
charge or claim with respect to the Property (and Tenant shall reasonably
cooperate with Landlord with respect to such contest), and, FURTHER PROVIDED
THAT:
(a) in the case of an unpaid Imposition, lien, attachment, levy,
encumbrance, charge or claim, the commencement and continuation of such
proceedings shall suspend the collection thereof from Landlord and from the
Property, and neither the Property nor any Rent therefrom nor any part
thereof or interest therein would be in any danger of being sold,
forfeited, attached or lost pending the outcome of such proceedings;
(b) in the case of a Legal Requirement, Landlord would not be
subject to criminal or material civil liability for failure to comply
therewith pending the outcome of such proceedings. Nothing in this Section
14.1(b), however, shall permit Tenant to delay compliance with any
requirement of an Environmental Law to the extent such non-compliance poses
an immediate threat of injury to any Person or to the public health or
safety or of material damage to any real or personal property;
(c) in the case of a Legal Requirement and/or an Imposition, lien,
encumbrance or charge, Tenant shall give such reasonable security, if any,
as may be demanded by Landlord to insure ultimate payment of the same and
to prevent any sale or forfeiture of the affected Property or the Rent by
reason of such non-payment or noncompliance, PROVIDED, HOWEVER, the
provisions of this Article 14 shall not be construed to permit Tenant to
contest the payment of Rent (except as to contests concerning the method of
computation or the basis of levy of any Imposition or the basis for the
assertion of any other claim) or any other sums payable by Tenant to
Landlord hereunder;
(d) no such contest shall interfere in any material respect with
the use or occupancy of the Property;
(e) in the case of an Insurance Requirement, the coverage required
by Article 15 shall be maintained; and
(f) if such contest be finally resolved against Landlord or
Tenant, Tenant shall, as Additional Charges due hereunder, promptly pay the
amount required to be paid, together with all interest and penalties
accrued thereon, or
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comply with the applicable Legal Requirement or Insurance Requirement.
14.2 INDEMNIFICATION OF LANDLORD. Landlord, at Tenant's expense,
shall execute and deliver to Tenant such authorizations and other documents as
may reasonably be required in any such contest, and, if reasonably requested by
Tenant or if Landlord so desires, Landlord shall join as a party therein.
Tenant shall indemnify and save Landlord harmless against any liability, cost or
expense of any kind that may be imposed upon Landlord in connection with any
such contest and any loss resulting therefrom.
ARTICLE 15
INSURANCE
15.1 GENERAL INSURANCE REQUIREMENTS. During the Lease Term, Tenant
shall at all times keep the Property, and all property located in or on the
Property, including all Tenant's Personal Property and any Tenant Improvements,
insured with the kinds and amounts of insurance described below. This insurance
shall be written by companies authorized to do insurance business in the State,
and shall otherwise meet the requirements set forth in Section 15.5 of this
Lease. The policies must name Landlord as an additional insured or loss payee,
as applicable. Losses shall be payable to Landlord and/or Tenant as provided in
this Article 15. In addition, the policies shall name as a loss payee any
Facility Mortgagee by way of a standard form of mortgagee's loss payable
endorsement. Any loss adjustment shall require the written consent of Landlord
provided Landlord by written notice to Tenant has elected to participate in such
loss adjustment, Tenant, and each Facility Mortgagee, if any. Evidence of
insurance shall be deposited with Landlord and, if requested, with any Facility
Mortgagee(s). The policies on the Property, including the Improvements,
Fixtures, Tangible and Intangible Personal Property and any Tenant Improvements,
shall insure against the following risks:
(a) ALL RISK. Loss or damage by all risks or perils including,
but not limited to, fire, vandalism, malicious mischief and extended
coverages, including sprinkler leakage, in an amount not less than 100% of
the then Full Replacement Cost thereof covering all structures built on the
Property and all Tangible Personal Property; and further provided the
Tangible Personal Property may be insured at its fair market value.
(b) LIABILITY. Claims for personal injury or property damage
under a policy of comprehensive general liability insurance with amounts
not less than five million dollars ($5,000,000) per occurrence and in the
aggregate.
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(c) FLOOD. Flood insurance (when the Property is located in whole
or in material part a designated flood plain area) in an amount similar to
the amount insured by comparable golf course properties in the area.
Notwithstanding the foregoing, Tenant shall not be required to participate
in the National Flood Insurance Program or otherwise obtain flood insurance
to the extent not available at commercially reasonable rates; provided
Tenant shall give Landlord written notice thereof prior to cancelling or
not obtaining any flood insurance. Tenant may opt to insure the structures
only, and not the Land, subject to the approval of Landlord, in Landlord's
reasonable discretion.
(d) WORKER'S COMPENSATION. Adequate worker's compensation
insurance coverage for all Persons employed by Tenant on the Property in
accordance with the requirements of applicable federal, state and local
laws, which may include provisions for self-insurance if permitted by
applicable law.
15.2 OTHER INSURANCE. Such other insurance on or in connection
with any of the Property as Landlord or any Facility Mortgagee may reasonably
require, which at the time is usual and commonly obtained in connection with
properties similar in type of building size and use to the Property and located
in the geographic area where the Property is located.
15.3 REPLACEMENT COST. In the event either party believes that the
Full Replacement Cost of the insured property has increased or decreased at any
time during the Lease Term, it shall have the right to have such Full
Replacement Cost redetermined by the Impartial Appraiser. The party desiring to
have the Full Replacement Cost so redetermined shall forthwith, on receipt of
such determination by such Impartial Appraiser, give written notice thereof to
the other party hereto. The determination of such Impartial Appraiser shall be
final and binding on the parties hereto, and Tenant shall forthwith increase, or
may decrease, the amount of the insurance carried pursuant to this Section 15.3,
as the case may be, to the amount so determined by the Impartial Appraiser.
Each party shall pay one-half of the fee, if any, of the Impartial Appraiser.
15.4 WAIVER OF SUBROGATION. All insurance policies carried by
either party covering the Property including contents, fire and casualty
insurance, shall expressly waive any right of subrogation on the part of the
insurer against the other party (including any Facility Mortgagee). The parties
hereto agree that their policies will include such waiver clause or endorsement
so long as the same are obtainable without extra cost, and in the event of such
an extra charge the other party, at its election, may pay the same, but shall
not be obligated to do so.
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15.5 FORM SATISFACTORY, ETC. All of the policies of insurance
referred to in this Article 15 shall be written in a form reasonably
satisfactory to Landlord and by insurance companies rated not less than B+, XII
by A.M. Best's Insurance Guide. Tenant shall pay all premiums for the policies
of insurance referred to in Sections 15.1 and 15.2 and shall deliver
certificates thereof to Landlord prior to their effective date (and with respect
to any renewal policy, at least ten (10) days prior to the expiration of the
existing policy). In the event Tenant fails to satisfy its obligations under
this Article 15, Landlord shall be entitled, but shall have no obligation, to
effect such insurance and pay the premiums therefore, which premiums shall be
repayable to Landlord upon written demand as Additional Charges. Each insurer
issuing policies pursuant to this Article 15 shall agree, by endorsement on the
policy or policies issued by it, or by independent instrument furnished to
Landlord, that it will give to Landlord thirty (30) days' written notice before
the policy or policies in question shall be altered, allowed to expire or
cancelled. Each such policy shall also provide that any loss otherwise payable
thereunder shall be payable notwithstanding (i) any act or omission of Landlord
or Tenant which might, absent such provision, result in a forfeiture of all or a
part of such insurance payment, (ii) the occupation or use of the Property for
purposes more hazardous than those permitted by the provisions of such policy,
(iii) any foreclosure or other action or proceeding taken by any Facility
Mortgagee pursuant to any provision of a mortgage, note, assignment or other
document evidencing or securing a loan upon the happening of an event of default
therein or (iv) any change in title to or ownership of the Property.
15.6 CHANGE IN LIMITS. In the event that Landlord shall at any
time reasonably determine on the basis of prudent industry practice that the
liability insurance carried by Tenant pursuant to Sections 15.1 and 15.2 is
either excessive or insufficient, the parties shall endeavor to agree on the
proper and reasonable limits for such insurance to be carried; and such
insurance shall thereafter be carried with the limits thus agreed on until
further changed pursuant to the provisions of this Article 15; PROVIDED,
HOWEVER, that the deductibles for such insurance or the amount of such insurance
which is self-retained by Tenant shall be as reasonably determined by Tenant so
long as Tenant can reasonably demonstrate its ability to satisfy such deductible
or amount of such self-retained insurance.
15.7 BLANKET POLICY. Notwithstanding anything to the contrary
contained in this Article 15, Tenant's obligations to carry the insurance
provided for herein may be brought within the coverage of a so-called blanket
policy or policies of insurance carried and maintained by Tenant; PROVIDED,
HOWEVER, that the coverage afforded Landlord will not be reduced or diminished
or otherwise be different from that which would exist under a separate policy
meeting all other requirements of this Lease by
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reason of the use of such blanket policy of insurance, and provided further that
the requirements of this Article 15 are otherwise satisfied. The amount of this
total insurance allocated to each of the Leased Properties, which amount shall
be not less than the amounts required pursuant to Sections 15.1 and 15.2, shall
be specified either (i) in each such "blanket" or umbrella policy or (ii) in a
written statement, which Tenant shall deliver to Landlord and Facility
Mortgagee, from the insurer thereunder. A certificate of each such "blanket" or
umbrella policy shall promptly be delivered to Landlord and Facility Mortgagee.
15.8 INSURANCE PROCEEDS. All proceeds of insurance payable by
reason of any loss or damage to the Property, or any portion thereof, and
insured under any policy of insurance required by this Article 15 shall (i) if
greater than $200,000, be held in an escrow with disbursements approved in
writing by Landlord and (ii) if less than such amount, be paid to Tenant and
held by Tenant. All such proceeds shall be held in trust and shall be made
available for reconstruction or repair, as the case may be, of any damage to or
destruction of the Property, or any portion thereof.
15.9 DISBURSEMENT OF PROCEEDS. Any proceeds held by Landlord or
Tenant shall be paid out by Landlord or Tenant from time to time for the
reasonable costs of such reconstruction or repair; PROVIDED, HOWEVER, that
Landlord shall disburse proceeds subject to the following requirements:
(a) prior to commencement of restoration, (i) the architects,
contracts, contractors, plans and specifications for the restoration shall
have been approved by Landlord, which approval shall not be unreasonably
withheld or delayed and (ii) appropriate waivers of mechanics' and
materialmen's liens shall have been filed;
(b) Except for payments as are customary to be made prior thereto,
Tenant shall have obtained and delivered to Landlord copies of all
necessary governmental and private approvals necessary to complete the
reconstruction or repair, including building permits, licenses, conditional
use permits and certificates of need;
(c) at the time of any disbursement, subject to Article 14, no
mechanics' or materialmen's liens shall have been filed against any of the
Property and remain undischarged, unless a satisfactory bond shall have
been posted in accordance with the laws of the State;
(d) disbursements shall be made from time to time in an amount not
exceeding the cost of the work completed since the last disbursement, upon
receipt of (i) satisfactory evidence of the stage of completion, the
estimated total
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cost of completion and performance of the work to date in a good and
workmanlike manner in accordance with the contracts, plans and
specifications, (ii) waivers of liens, (iii) a satisfactory bring down of
title insurance and (iv) other evidence of cost and payment so that
Landlord and Facility Mortgagee can verify that the amounts disbursed from
time to time are represented by work that is completed, in place and free
and clear of mechanics' and materialmen's lien claims;
(e) each request for disbursement shall be accompanied by a
certificate of Tenant, signed by a senior member or officer of Tenant,
describing the work for which payment is requested, stating the cost
incurred in connection therewith, stating that Tenant has not previously
received payment for such work and, upon completion of the work, also
stating that the work has been fully completed and complies with the
applicable requirements of this Lease;
(f) to the extent actually held by Landlord and not a Facility
Mortgagee, (1) the proceeds shall be held in a separate account and shall
not be commingled with Landlord's other funds, and (2) interest shall
accrue on funds so held at the money market rate of interest and such
interest shall constitute part of the proceeds; and
(g) such other reasonable conditions as Landlord or Facility
Mortgagee may reasonably impose, including, without limitation, payment by
Tenant of reasonable costs of administration imposed by or on behalf of
Facility Mortgagee should the proceeds be held by Facility Mortgagee.
15.10 EXCESS PROCEEDS, DEFICIENCY OF PROCEEDS. Any excess proceeds
of insurance remaining after the completion of the restoration or reconstruction
of the Property (or in the event neither Landlord nor Tenant is required to or
elects to repair and restore) shall be paid to Landlord and deposited in the
Capital Replacement Fund except for any portion specifically applicable to
Tenant's merchandise and inventory. All salvage resulting from any risk covered
by insurance shall belong to Landlord.
If the costs of restoration or reconstruction exceeds the amount of
proceeds received by Landlord or Tenant from insurance, Tenant shall pay for
such excess cost of restoration or reconstruction, except that Tenant may
petition Landlord for withdrawal from the Capital Replacement Fund to cover some
or all of such excess, subject to the approval of Landlord in Landlord's sole
and absolute discretion.
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15.11 RECONSTRUCTION COVERED BY INSURANCE.
(a) DESTRUCTION RENDERING PROPERTY UNSUITABLE FOR ITS
PRIMARY USE. If during the term the Property is totally or partially
destroyed from a risk covered by the insurance described in Article 15 and
the Property thereby is rendered Unsuitable For Its Primary Intended Use,
Tenant shall, at its election, either (i) diligently restore the Property
to substantially the same condition as existed immediately before the
damage or destruction, or (ii) terminate the Lease by delivery of written
notice received by Landlord within thirty (30) days of the date of the
damage or destruction and assign all of its rights to any insurance
proceeds required under this Lease to Landlord.
(b) DESTRUCTION NOT RENDERING PROPERTY UNSUITABLE FOR ITS
PRIMARY USE. If during the term, the Property is totally or partially
destroyed from a risk covered by the insurance described in Article 15, but
the Real Property is not thereby rendered Unsuitable For Its Primary
Intended Use, Tenant shall diligently restore the Property to substantially
the same condition as existed immediately before the damage or destruction,
subject to Legal Requirements; PROVIDED, HOWEVER, Tenant shall not be
required to restore certain Tangible Personal Property and/or any Tenant
Improvements if failure to do so does not adversely affect the amount of
Rent payable hereunder or the Primary Intended Use in substantially the
same manner immediately prior to such damage or destruction. Such damage
or destruction shall not terminate this Lease; PROVIDED FURTHER, HOWEVER,
if Tenant cannot within eighteen (18) months obtain all necessary
governmental approvals, including building permits, licenses, conditional
use permits and any certificates of need, after diligent efforts to do so
in order to be able to perform all required repair and restoration work and
to operate the Property for its Primary Intended Use in substantially the
same manner immediately prior to such damage or destruction, Tenant may
terminate the Lease.
15.12 RECONSTRUCTION NOT COVERED BY INSURANCE. If during the Term,
the Property is damaged from a risk not covered by the insurance described in
Article 15, and such damage or destruction does not render the Property
Unsuitable For Its Primary Intended Use, Tenant shall restore the Property to
substantially the same condition as existed immediately before the damage or
destruction and Tenant may use proceeds from the Capital Replacement Fund to
perform such work, subject to the conditions set forth in Section 12.4 hereof.
If during the Term, the Property is materially damaged or destroyed by a risk
not covered by the insurance described in Article 15 and the Property is
rendered Unsuitable For Its Primary Intended Use, Tenant shall have the right to
terminate this Lease upon by delivery of
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written notice received by Landlord within thirty (30) days of the date of the
damage or destruction.
15.13 NO ABATEMENT OF RENT. This Lease shall remain in full force
and effect and Tenant's obligation to make rental payments and to pay all other
charges required by this Lease shall remain unabated during the period required
for repair and restoration.
15.14 WAIVER. Tenant hereby waives any statutory rights of
termination which may arise by reason of any damage or destruction of the
Property which Landlord or Tenant is obligated to restore or may restore under
any of the provisions of this Lease.
15.15 DAMAGE NEAR END OF TERM. Notwithstanding any other provision
to the contrary in this Article 15, if damage to or destruction of the Property
occurs during the last twenty-four (24) months of the Lease Term, and if such
damage or destruction cannot reasonably be expected by Landlord to be fully
repaired or restored prior to the date that is twelve (12) months prior to the
end of the then-applicable Term, then either Landlord or Tenant shall have the
right to terminate the Lease on thirty (30) days' prior notice to the other by
giving notice thereof within sixty (60) days after the date of such damage or
destruction. Upon any such termination, Landlord shall be entitled to retain
all insurance proceeds, grossed up by Tenant to account for the deductible or
any self-insured retention. If Landlord shall give Tenant a notice under this
Section 15.15 that it seeks to terminate this Lease at a time when Tenant has a
remaining Extended Term, then such termination notice shall be of no effect if
Tenant shall exercise its rights to extend the Term not later than the earlier
of the time required by Section 3.2 or thirty (30) days after Landlord's notice
given under this Section 15.15.
ARTICLE 16
CONDEMNATION
16.1 TOTAL TAKING. If at any time during the Term the Property is
totally and permanently taken by Condemnation, this Lease shall terminate on the
Date of Taking and Tenant shall promptly pay all outstanding rent and other
charges through the date of termination.
16.2 PARTIAL TAKING. If a portion of the Property is taken by
Condemnation, this Lease shall remain in effect if the Property is not thereby
rendered Unsuitable For Its Primary Intended Use, but if the Property is thereby
rendered Unsuitable For Its Primary Intended Use, this Lease shall terminate on
the Date of Taking.
16.3 RESTORATION. If there is a partial taking of the Property and
this Lease remains in full force and effect pursuant
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to Section 16.2, Landlord at its cost shall accomplish all necessary restoration
up to but not exceeding the amount of the Award payable to Landlord, as provided
herein. If Tenant receives an Award under Section 16.4, Tenant shall repair or
restore any Tenant Improvements up to but not exceeding the amount of the Award
payable to Tenant therefor.
16.4 AWARD-DISTRIBUTION. The entire Award shall belong to and be
paid to Landlord, except that Tenant shall be entitled to receive from the
Award, if and to the extent such Award specifically includes such items, a sum
attributable to the value, if any, of: (i) the loss of Tenant's business during
the remaining term, (ii) any Tenant Improvements and (iii) the leasehold
interest of Tenant under this Lease.
16.5 TEMPORARY TAKING. The taking of the Property, or any part
thereof, by military or other public authority shall constitute a taking by
Condemnation only when the use and occupancy by the taking authority has
continued for longer than six (6) months. During any such six (6) month period,
which shall be a temporary taking, all the provisions of this Lease shall remain
in full force and effect with an abatement of rent during the period Tenant is
deprived of the material benefits of the Property. In the event of any such
temporary taking, the entire amount of any such Award made for such temporary
taking allocable to the Lease Term, whether paid by way of damages, rent or
otherwise, shall be paid to Tenant; provided, however, that Landlord shall be
reimbursed for all rent abated under this Section 16.5.
ARTICLE 17
EVENTS OF DEFAULT
17.1 EVENTS OF DEFAULT. If any one or more of the following events
(individually, an "Event of Default") shall occur:
(a) if Tenant shall fail to make payment of the Rent payable by
Tenant under this Lease when the same becomes due and payable and such
failure is not cured by Tenant within a period of ten (10) days after
receipt by Tenant of notice thereof from Landlord;
(b) if Tenant shall fail to observe or perform any material term,
covenant or condition of this Lease and such failure is not cured by Tenant
within a period of thirty (30) days after receipt by Tenant of notice
thereof from Landlord, unless such failure cannot with due diligence be
cured within a period of thirty (30) days, in which case such failure shall
not be deemed to continue if Tenant proceeds promptly and with due
diligence to cure the failure and diligently completes the curing thereof
PROVIDED,
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HOWEVER, that such notice shall be in lieu of and not in addition to any
notice required under applicable law;
(c) if, except as a result of damage, destruction or a partial or
complete Condemnation or other Unavoidable Delays, Tenant voluntarily ceases
operations on the Property;
(d) any representation or warranty made by Tenant herein or in any
certificate, demand or request made pursuant hereto proves to be incorrect,
now or hereafter, in any material respect; or
(e) a monetary event of default under the Guaranty (including any
failure to increase the letter of credit as provided therein or violation
of the debt limitations therein) shall exist and such default shall not
have been cured within ten (10) days of Tenant's receipt of written notice
thereof;
THEN, Tenant shall be declared to have breached this Lease. Landlord
may terminate this Lease by giving Tenant not less than ten (10) days' notice of
such termination and upon the expiration of the time fixed in such notice, the
Term shall terminate and all rights of Tenant under this Lease shall cease.
Landlord shall have all rights at law and in equity available to Landlord as a
result of Tenant's breach of this Lease.
17.2 PAYMENT OF COSTS. Tenant shall, to the extent permitted by
law, pay as Additional Charges all costs and expenses incurred by or on behalf
of Landlord, including reasonable attorneys' fees and expenses, as a result of
any Event of Default hereunder.
17.3 CERTAIN REMEDIES. If an Event of Default shall have occurred
and be continuing, whether or not this Lease has been terminated pursuant to
Section 17.1, Tenant shall, to the extent permitted by law, if required by
Landlord to do so, immediately surrender to Landlord the Property pursuant to
the provisions of Section 17.1 and quit the same and Landlord may enter upon and
repossess the Property by reasonable force, summary proceedings, ejectment or
otherwise, and may remove Tenant and all other Persons and any and all Tenant's
Personal Property from the Property subject to any requirement of law.
17.4 DAMAGES. None of the following events shall relieve Tenant of
its liability and obligations hereunder, all of which shall survive any such
termination, repossession or reletting: (a) the termination of this Lease
pursuant to Section 17.1, (b) the repossession of the Property, (c) the failure
of Landlord, notwithstanding reasonable good faith efforts, to relet the
Property, (d) the reletting of all or any portion thereof, nor (e) the failure
of Landlord to collect or receive any rentals due upon any such reletting. In
the event of any such
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termination, Tenant shall forthwith pay to Landlord all Rent due and payable
with respect to the Property to, and including, the date of such termination.
Thereafter, Tenant shall forthwith pay to Landlord, at Landlord's option, as and
for liquidated and agreed current damages for Tenant's default, and not as a
penalty, either:
(a) the sum of:
(i) the worth at the time of award of the unpaid Rent which
had been earned at the time of termination,
(ii) the worth at the time of award of the amount by which
the unpaid Rent which would have been earned after termination until
the time of award exceeds the amount of such unpaid Rent that Tenant
proves could have been reasonably avoided,
(iii) the worth at the time of award of the amount by which
the unpaid Rent for the balance of the Term after the time of award
exceeds the amount of such unpaid Rent that Tenant proves could be
reasonably avoided, and
(iv) any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform
its obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom.
In making the above determinations, the "worth at the time of the
award" in subsections (i) and (iii) shall be determined by the court having
jurisdiction thereof including interest at the Overdue Rate and the "worth at
the time of the award" in subsection (iii) shall be determined by the court
having jurisdiction thereof using a discount rate equal to the discount rate of
the Federal Reserve Bank of San Francisco at the time of the award plus one
percent (1%) and the Percentage Rent shall be deemed to be the same as for the
then-current Fiscal Year or, if not determinable, the immediately preceding
Fiscal Year, for the remainder of the Term, or such other amount as either party
shall prove reasonably could have been earned during the remainder of the Term
or any portion thereof; or
(b) without termination of Tenant's right to possession of the
Property, each installment of said Rent and other sums payable by Tenant to
Landlord under the Lease as the same becomes due and payable, which Rent and
other sums shall bear interest at the Overdue Rate from the date when due until
paid, and Landlord may enforce, by action or otherwise, any other term or
covenant of this Lease.
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17.5 ADDITIONAL REMEDIES. Landlord has all other remedies that may
be available under applicable law.
17.6 APPOINTMENT OF RECEIVER. Upon the occurrence of an Event of
Default, and upon filing of a suit or other commencement of judicial proceedings
to enforce the rights of Landlord hereunder, Landlord shall be entitled, as a
matter or right, to the appointment of a receiver or receivers acceptable to
Landlord of the Property and of the revenues, earnings, income, products and
profits thereof, pending such proceedings, with such powers as the court making
such appointment shall confer.
17.7 WAIVER. If this Lease is terminated pursuant to Section 17.1,
Tenant waives, to the extent permitted by applicable law (a) any right of
redemption, re-entry or repossession and (b) any right to a trial by jury.
17.8 APPLICATION OF FUNDS. Any payments received by Landlord under
any of the provisions of this Lease during the existence or continuance of any
Event of Default (and such payment is made to Landlord rather than Tenant due to
the existence of an Event of Default) shall be applied to Tenant's obligations
in the order which Landlord may determine or as may be prescribed by the laws of
the State.
17.9 IMPOUNDS. Landlord shall have the right during the
continuance of an Event of Default to require Tenant to pay to Landlord an
additional monthly sum (each an "Impound Payment") sufficient to pay the Impound
Charges (as hereinafter defined) as they become due. As used herein, "Impound
Charges" shall mean real estate taxes on the Property or payments in lieu
thereof and premiums on any insurance required by this Lease. Landlord shall
determine the amount of the Impound Charges and of each Impound Payment. The
Impound Payments shall be held in a separate account and shall not be commingled
with other funds of Landlord and interest thereon shall be held for the account
of Tenant. Landlord shall apply the Impound Payments to the payment of the
Impound Charges in such order or priority as Landlord shall determine or as
required by law. If at any time the Impound Payments theretofore paid to
Landlord shall be insufficient for the payment of the Impound Charges, Tenant,
within ten (10) days after Landlord's demand therefor, shall pay the amount of
the deficiency to Landlord.
ARTICLE 18
LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT
If Tenant shall fail to make any payment or to perform any act
required to be made or performed under this Lease, and to cure the same within
the relevant time periods provided in Article 17, Landlord, after notice to and
demand upon Tenant, and without waiving or releasing any obligation or default,
may (but
54
shall be under no obligation to) at any time thereafter make such payment or
perform such act for the account and at the expense of Tenant. Landlord may, to
the extent permitted by law, enter upon the Property for such purpose and take
all such action thereon as, in Landlord's opinion, may be necessary or
appropriate therefor. No such entry shall be deemed an eviction of Tenant. All
sums so paid by Landlord and all costs and expenses (including reasonable
attorneys' fees and expenses, to the extent permitted by law) so incurred,
together with a late charge thereon at the Overdue Rate from the date on which
such sums or expenses are paid or incurred by Landlord, shall be paid by Tenant
to Landlord on demand. The obligations of Tenant and rights of Landlord
contained in this Article 18 shall survive the expiration or earlier termination
of this Lease.
ARTICLE 19
LEGAL REQUIREMENTS
Subject to Article 14 regarding permitted contests, Tenant, at its
expense, shall promptly (a) comply with all Legal Requirements and Insurance
Requirements in respect of the use, operation, maintenance, repair and
restoration of the Property, whether or not compliance therewith shall require
structural changes in any of the Improvements or interfere with the use and
enjoyment of the Property; and (b) procure, maintain and comply with all
licenses and other authorizations required for any use of the Property then
being made, and for the proper erection, installation, operation and maintenance
of the Property or any part thereof.
ARTICLE 20
HOLDING OVER
If Tenant shall for any reason remain in possession of the Property
after the expiration of the Term or earlier termination of the Term hereof, such
possession shall be deemed to be a tenant at sufferance during which time Tenant
shall pay as rental each month, 125% of the aggregate of (i) the aggregate Base
Rent and monthly portion of the Percentage Rent payable with respect to that
month in the last Fiscal Year; (ii) all Additional Charges accruing during the
month; and (iii) all other sums, if any, payable by Tenant pursuant to the
provisions of this Lease with respect to the Property. During such period of
month-to-month tenancy, Tenant shall be obligated to perform and observe all of
the terms, covenants and conditions of this Lease, but shall have no rights
hereunder other than the right, to the extent given by law to month-to-month
tenancies, to continue its occupancy and use of the Property. Nothing contained
herein shall constitute the consent, express or implied, of Landlord to the
holding over of Tenant after the expiration or earlier termination of this
Lease.
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ARTICLE 21
RISK OF LOSS
21.1 GENERALLY. Except as otherwise provided herein, during the
Lease Term, the risk of loss or of decrease in the enjoyment and beneficial use
of the Property as a consequence of the damage or destruction thereof by fire,
flood, the elements, casualties, thefts, riots, wars or otherwise, or in
consequence of foreclosures, attachments, levies or executions (other than by
Landlord and those claiming from, through or under Landlord) is assumed by
Tenant. In the absence of gross negligence, willful misconduct or breach of
this Lease by Landlord pursuant to Section 28.2, except as otherwise provided
below, Landlord shall in no event be answerable or accountable therefor nor
shall any of the events mentioned in this Article 21 entitle Tenant to any
abatement of Rent.
21.2 ABATEMENT OF RENT. In the event Tenant is prevented from
using, and does not use, the Property or any portion thereof, for thirty
consecutive (30) days ("Eligibility Period") as a result of (a) through no fault
of Tenant, any damage or destruction (b) through no fault of Tenant, the
enactment or enforcement of any Legal Requirement that effectively prohibits the
use the Property for the Primary Intended Use, or (b) because of the presence of
Hazardous Substances in, on or around the Property not caused by Tenant which
could pose a health risk to users of the Property, then Tenant's Rent shall be
abated or reduced, as the case may be, as of the commencement of the Eligibility
Period for such time that Tenant continues to be so prevented from using, and
does not use, the Property or a portion thereof, in the proportion that the area
of the portion of the Property that Tenant is prevented from using, and does not
use, impacts the operation of Tenant's business on the Property. However, in
the event that Tenant is prevented from conducting, and does not conduct, its
business in any portion of the Property for a period of time in excess of the
Eligibility Period, and the remaining portion of the Property is not sufficient
to allow Tenant to conduct in a reasonable manner its business therein, and if
Tenant does not conduct its business from such remaining portion, then for such
time after expiration of the Eligibility Period during which Tenant is so
prevented from conducting in a reasonable manner its business therein, the Rent
for the entire Property shall be abated; provided, however, if Tenant reoccupies
and conducts its business from any portion of the Property during such period,
the Rent equitably allocable to such reoccupied portion shall be payable by
Tenant from the date such business operations commence. If Tenant's right to
abatement occurs because of an eminent domain or taking Tenant's abatement
period shall continue until Tenant has been given sufficient time as reasonably
determined by Tenant's contractor and sufficient access to the Property to
rebuild such portion it is required to rebuild (including the Tenant
Improvements) to the extent the same shall have been removed as a result of such
56
damage or destruction. To the extent Tenant is entitled to abatement without
regard to the Eligibility Period, because of an event covered by this Lease,
then the Eligibility Period shall not be applicable.
In the event Tenant is prevented from using, and does not use, the
Property or any portion thereof, for a period of 180 consecutive days as a
result of (a) through no fault of Tenant, the enactment or enforcement of any
Legal Requirement that effectively prohibits the use the Property for the
Primary Intended Use, or (b) because of the presence of Hazardous Substances in,
on or around the Property not caused by Tenant which could pose a health risk to
users of the Property, then Tenant shall have the right to terminate this Lease
by giving written notice to Landlord.
In the event of any abatement of rent described in Section 21.2(a)
(damage or destruction), then Landlord, at Landlord's option, shall have the
right to make a loan to Tenant to permit Tenant to pay the Rent hereunder.
The terms of such loan shall be the same as for the Loan Amount described in
Section 12.3(b), except (i) there shall be no increase in the interest rate
as a result of the Base Escalator, and (ii) principal shall be payable from
any Net Operating Income prior to any distributions of Net Operating Income
to any partners or members of Tenant or Affiliates thereof. Furthermore, if
at the time of the damage or destruction giving rise to the rent abatement
described in Section 21.2(a) the Net Operating Income for the Property
(exclusive of Tenant debt service under the Loan Amount, if any, or any
Leasehold Financing, if any prior to payment of Rent hereunder) does not
equal or exceed 110% of the Rent, then (A) the Rent shall not abate, and (B)
Landlord shall not make any loan to Tenant.
ARTICLE 22
INDEMNIFICATION
22.1 TENANT'S INDEMNIFICATION OF LANDLORD. Except as otherwise
provided in Section 10.2 and notwithstanding the existence of any insurance
provided for in Article 15, and without regard to the policy limits of any such
insurance, Tenant will protect, indemnify, save harmless and defend Landlord,
the Company and Affiliates of the Company from and against all liabilities,
obligations, claims, actual or consequential damages, penalties, causes of
action, costs and expenses (including reasonable attorneys' fees and expenses),
to the extent permitted by law, imposed upon or incurred by or asserted against
Landlord, the Company or Affiliates of the Company by reason of:
(a) any accident, injury to or death of persons or loss of or
damage to property occurring on or about the Property or adjoining
property, including, but not limited
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to, any accident, injury to or death of Person or loss of or damage to
property resulting from golf balls, golf clubs, golf shoes, lawn mowers or
other equipment, pesticides, fertilizers or other substances, golf carts,
tractors or other motorized vehicles present on or adjacent to the
Property;
(b) any use, misuse, non-use, condition, maintenance or repair of
the Property;
(c) any Impositions (which are the obligations of Tenant to pay
pursuant to the applicable provisions of this Lease);
(d) any failure on the part of Tenant to perform or comply with
any of the terms of this Lease;
(e) any so-called "dram shop" liability associated with the sale
and/or consumption of alcohol at the Property;
(f) the non-performance of any of the terms and provisions of any
and all existing and future subleases of the Property to be performed by
the landlord (Tenant) thereunder; or
(g) any liability Landlord may incur or suffer as a result of any
permitted contest by Tenant pursuant to Article 14.
22.2 LANDLORD'S INDEMNIFICATION OF TENANT. Landlord shall protect,
indemnify, save harmless and defend Tenant from and against all liabilities,
obligations, claims, actual or consequential damages, penalties, causes of
action, costs and expenses (including reasonable attorneys' fees) imposed upon
or incurred by or asserted against Tenant as a result of Landlord's active,
gross negligence or willful misconduct or as a result of Landlord's
non-performance of its obligations under the Lease.
22.3 MECHANICS OF INDEMNIFICATION. As soon as reasonably
practicable after receipt by the indemnified party of notice of any liability or
claim incurred by or asserted against the indemnified party that is subject to
indemnification under this Article 22, the indemnified party shall give notice
thereof to the indemnifying party. The indemnified party may at its option
demand indemnity under this Article 22 as soon as a claim has been threatened by
a third party, regardless of whether an actual loss has been suffered, so long
as the indemnified party shall in good faith determine that such claim is not
frivolous and that the indemnified party may be liable for, or otherwise incur,
a loss as a result thereof and shall give notice of such determination to the
indemnifying party. The indemnified party shall permit the indemnifying party,
at its option and expense, to assume the defense of any such claim by counsel
selected by
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the indemnifying party and reasonably satisfactory to the indemnified party, and
to settle or otherwise dispose of the same; PROVIDED, HOWEVER, that the
indemnified party may at all times participate in such defense at its expense,
and PROVIDED FURTHER, HOWEVER, that the indemnifying party shall not, in defense
of any such claim, except with the prior written consent of the indemnified
party, consent to the entry of any judgment or to enter into any settlement that
does not include as an unconditional term thereof the giving by the claimant or
plaintiff in question to the indemnified party and its affiliates a release of
all liabilities in respect of such claims, or that does not result only in the
payment of money damages by the indemnifying party. If the indemnifying party
shall fail to undertake such defense within thirty (30) days after such notice,
or within such shorter time as may be reasonable under the circumstances, then
the indemnified party shall have the right to undertake the defense, compromise
or settlement of such liability or claim on behalf of and for the account of the
indemnifying party.
22.4 SURVIVAL OF INDEMNIFICATION OBLIGATIONS; AVAILABLE INSURANCE
PROCEEDS. Tenant's or Landlord's liability for a breach of the provisions of
this Article 22 arising during the term hereof shall survive any termination of
this Lease. Notwithstanding anything herein to the contrary, each party agrees
to look first to the available proceeds from any insurance it carries in
connection with the Property prior to seeking indemnification or otherwise
seeking to recover any amounts to compensate a party for its damages and then to
seek indemnification only to the extent of any loss not covered by their
available insurance proceeds.
ARTICLE 23
SUBLETTING AND ASSIGNMENT
23.1 PROHIBITION AGAINST ASSIGNMENT. Except as otherwise permitted
hereunder, Tenant shall not, without the prior written consent of Landlord,
which consent Landlord may not unreasonably withhold or delay, assign, mortgage,
pledge, hypothecate, encumber or otherwise transfer (except to an Affiliate of
Tenant) the Lease or any interest therein, all or any part of the Property,
whether voluntarily, involuntarily or by operation of law. For purposes of this
Article 23, a Change in Control of the Tenant shall constitute an assignment of
this Lease. Notwithstanding anything to the contrary in this Lease, Tenant
shall have the right to assign, sublease or otherwise transfer all or any
portion of the Property subject to this Lease or this Lease to any Permitted
Assignee without the consent of Landlord, provided Landlord shall be given prior
written notice of such transfer. In no event shall Tenant be permitted to
transfer this Lease to any publicly-traded Real Estate Investment Trust or any
affiliate thereof or to American Golf Corporation.
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23.2 SUBLEASES.
(a) PERMITTED SUBLEASES. Tenant shall not, without the
prior written consent of Landlord, which consent Landlord may withhold in
its reasonable discretion, further sublease or license portions of the
Property to third parties, including concessionaires or licensees. Without
limiting the foregoing, Tenant's proposed sublease or any of the following
transfers shall require Landlord's prior written consent, which consent
Landlord may withhold in its reasonable discretion:
(i) sublease or license to operate golf courses;
(ii) sublease or license to operate golf
professionals' shops;
(iii) sublease or license to operate golf driving
ranges;
(iv) sublease or license to provide golf lessons
by other than a resident professional;
(v) sublease or license to operate restaurants;
(vi) sublease or license to operate bars;
(vii) sublease or license to operate spa or health
clubs; and
(viii) sublease or license to operate any other
portions (but not the entirety) of the Property customarily associated
with or incidental to the operation of the golf course.
(b) TERMS OF SUBLEASE. Each sublease with respect to the
Property shall be subject and subordinate to the provisions of this Lease.
No sublease made as permitted by this Section 23.2 shall affect or reduce
any of the obligations of Tenant hereunder, and all such obligations shall
continue in full force and effect as if no sublease had been made. No
sublease shall impose any additional obligations on Landlord under this
Lease.
(c) COPIES. Tenant shall, not less than sixty (60) days
prior to any proposed assignment or sublease, deliver to Landlord written
notice of its intent to assign or sublease, which notice shall identify the
intended assignee or sublessee by name and address, shall specify the
effective date of the intended assignment or sublease, and shall be
accompanied by an exact copy of the proposed assignment or sublease.
Tenant shall provide Landlord with such additional information or documents
reasonably
60
requested by Landlord with respect to the proposed transaction and the
proposed assignee or subtenant, and an opportunity to meet and interview
the proposed assignee or subtenant, if requested.
(d) ASSIGNMENT OF RIGHTS IN SUBLEASES. As security for
performance of its obligations under this Lease, Tenant hereby grants,
conveys and assigns to Landlord all right, title and interest of Tenant in
and to all subleases now in existence or hereinafter entered into for any
or all of the Property, and all extensions, modifications and renewals
thereof and all rents, issues and profits therefrom. Landlord hereby
grants to Tenant a license to collect and enjoy all rents and other sums of
money payable under any sublease of any of the Property; provided, however,
that Landlord shall have the absolute right at any time after the
occurrence and continuance of an Event of Default upon notice to Tenant and
any subtenants to revoke said license and to collect such rents and sums of
money and to retain the same. Tenant shall not (i) consent to, cause or
allow any material modification or alteration of any of the terms,
conditions or covenants of any of the subleases or the termination thereof,
without the prior written approval of Landlord nor (ii) accept any rents
(other than customary security deposits) more than ninety (90) days in
advance of the accrual thereof nor permit anything to be done, the doing of
which, nor omit or refrain from doing anything, the omission of which, will
or could be a breach of or default in the terms of any of the subleases.
(e) LICENSES, ETC. For purposes of this Section 23.2,
subleases shall be deemed to include any licenses, concession arrangements,
management contracts (except to an Affiliate of the Lessee) or other
arrangements relating to the possession or use of all or any part of the
Property.
23.3 TRANSFERS. No assignment or sublease shall in any way impair
the continuing primary liability of Tenant hereunder, as a principal and not as
a surety or guarantor, and no consent to any assignment or sublease in a
particular instance shall be deemed to be a waiver of the prohibition set forth
in Section 23.1. Any assignment shall be solely of Tenant's entire interest in
this Lease. Any assignment or other transfer of all or any portion of Tenant's
interest in the Lease in contravention of the terms of this Lease shall be
voidable at Landlord's option. Anything in this Lease to the contrary
notwithstanding, Landlord shall have no obligation to consent to any proposed
sublet if Landord reasonably determines that such sublet would reduce the
Percentage Rent payable to Landlord hereunder.
23.4 REIT LIMITATIONS. Anything contained in this Lease to the
contrary notwithstanding, Tenant shall not (i) sublet or assign or enter into
other arrangements such that the
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amounts to be paid by the sublessee or assignee thereunder would be based, in
whole or in part, on the income or profits derived by the business activities of
the sublessee or assignee; (ii) sublet or assign the Property or this Lease to
any person that Landlord owns, directly or indirectly (by applying constructive
ownership rules set forth in Section 856(d)(5) of the Code), a 10% or greater
interest; or (iii) sublet or assign the Property or this Lease in any other
manner or otherwise derive any income which could cause any portion of the
amounts received by Landlord pursuant to this Lease or any sublease to fail to
qualify as "rents from real property" within the meaning of Section 856(d) of
the Code, or which could cause any other income received by Landlord to fail to
qualify as income described in Section 856(c)(2) of the Code. The requirements
of this Section 23.4 shall likewise apply to any further subleasing by any
subtenant.
23.5 LEASEHOLD MORTGAGE. Tenant shall have the right to mortgage
the Leasehold under a Leasehold Mortgage and to assign the entire Leasehold as
collateral security for such Leasehold Mortgage. The parties hereby acknowledge
and agree that Landlord's right, title and interest in and to the Property are
and at all times shall be superior to any Leasehold Mortgage. In addition,
Landlord shall have no obligation to guarantee any of Tenant's indebtedness or
other obligations secured by any Leasehold Mortgage.
If Tenant shall mortgage the Leasehold, in accordance with Section
23.5, Landlord agrees that so long as such Leasehold Mortgage shall remain
unsatisfied of record or until written notice of satisfaction is given by the
holders of any such Leasehold Mortgage to Landlord, the following provisions
shall apply:
(a) Landlord agrees that if the Leasehold Mortgagee acquires title to
the Leasehold by reason of any event of default by Tenant, if requested by and
at the cost of such Leasehold Mortgagee within thirty (30) days of the Leasehold
Mortgagee acquiring title, Landlord will, upon the Leasehold Mortgagee curing
all past monetary defaults of Tenant, enter into a new lease of the Property
with the Leasehold Mortgagee for the remainder of the Term, effective as of the
date of such termination, at the Rent and upon the terms, provisions, covenants
and agreements as herein contained and subject to the rights, if any, of any
parties then in possession of any part of the Property;
(b) Nothing herein contained shall require the Leasehold Mortgagee
to enter into a new lease;
(c) Foreclosure of the Leasehold Mortgage, or any sale or
conveyance of the Leasehold from Tenant to the Leasehold Mortgagee in lieu
thereof, shall not require the
62
consent of Landlord or constitute a breach of any provision of or a default
under this Lease, provided the Leasehold Mortgagee satisfies the following
conditions upon such foreclosure, sale or conveyance Landlord shall recognize
the purchaser or other transferee in connection therewith as Tenant hereunder:
(x) such Leasehold Mortgagee, in good faith, has promptly notified Landlord of
its intent to cure any default of Tenant, and thereafter, (i) in the event of a
default which can be cured by the payment of money, has cured such default
within thirty (30) days after notice thereof has been given to such Leasehold
Mortgagee, or (y) in the event of any other default, has promptly commenced to
cure such default and is prosecuting the same to completion with reasonable
diligence, subject to force majeure; or (ii) if possession of the Property is
required in order to cure such default, or if such default is not susceptible of
being cured by such Mortgagee, as long as such Mortgagee, in good faith, shall
have notified Landlord and Tenant that such Mortgagee intends to institute
proceedings under its Mortgage and, thereafter, as long as such proceedings
shall have been promptly instituted and shall be prosecuted with reasonable
diligence and, after having obtained possession, such Mortgagee prosecutes the
cure to completion with reasonable diligence.
(d) In the event the Leasehold Mortgagee becomes Tenant under this
Lease or under any new lease, the Leasehold Mortgagee shall be personally liable
for the obligations of Tenant under this Lease or a new lease for the period of
time that the Leasehold Mortgagee remains Tenant hereunder. The Leasehold
Mortgagee's right thereafter to assign this Lease or the new lease shall be
subject to the terms and conditions of this Lease.
23.6 BANKRUPTCY LIMITATIONS.
(a) Tenant acknowledges that this Lease is a lease of nonresidential
real property and therefore agrees that Tenant, as the debtor in possession, or
the trustee for Tenant (collectively, the "Trustee") in any proceeding under
Title 11 of the United States Bankruptcy Code relating to Bankruptcy, as amended
(the "Bankruptcy Code"), shall not seek or request any extension of time to
assume or reject this Lease or to perform any obligations of this Lease which
arise from or after the order of relief.
(b) If the Trustee proposes to assume or to assign this Lease or
sublet the Property (or any portion thereof) to any Person which shall have made
a bona fide offer to accept an assignment of this Lease or a subletting on terms
acceptable to the Trustee, the Trustee shall give Landlord, and lessors and
mortgagees of Landlord of which Tenant has notice, written notice setting forth
the name and address of such person and the terms and conditions of such offer,
no later than twenty (20) days
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after receipt of such offer, but in any event no later than ten (10) days prior
to the date on which the Trustee makes application to the bankruptcy court for
authority and approval to enter into such assumption and assignment or
subletting. Landlord shall have the prior right and option, to be exercised by
written notice to the Trustee given at any time prior to the effective date of
such proposed assignment or subletting, to receive and assignment of this Lease
or subletting of the Property to Landlord or Landlord's designee upon the same
terms and conditions and for the same consideration, if any, as the bona fide
offer made by such person, less any brokerage commissions which may be payable
out of the consideration to be paid by such person for the assignment or
subletting of this Lease.
(c) The Trustee shall have the right to assume Tenant's rights and
obligations under this Lease only if the Trustee: (a) promptly cures any Event
of Default then existing or provides adequate assurance that the Trustee will
promptly compensate Landlord for any actual pecuniary loss incurred by Landlord
as a result of Tenant's default under this Lease; and (c) provides adequate
assurance of future performance under this Lease. Adequate assurance of future
performance by the proposed assignee shall include, as a minimum, that: (i) any
proposed assignee of this Lease shall provide to Landlord an audited financial
statement, dated no later than six (6) months prior to the effective date of
such proposed assignment or sublease, with no material change therein as of the
effective date, which financial statement shall show the proposed assignee to
have a net worth reasonably satisfactory to Landlord or, in the alternative, the
proposed assignee shall provide a guarantor of such proposed assignee's
obligations under this Lease, which guarantor shall provide an audited financial
statement meeting the requirements of (i) above and shall execute and deliver to
Landlord a guaranty agreement in form and substance acceptable to Landlord; and
(ii) any proposed assignee shall grant to Landlord a security interest in favor
of Landlord in all furniture, fixtures, and other personal property to be used
by such proposed assignee in the Property. All payments required of Tenant
under this Lease, whether or not expressly denominated as such in this Lease,
shall constitute rent for the purposes of Title 11 of the Bankruptcy Code.
(d) The parties agree that for the purposes of the Bankruptcy Code
relating to (a) the obligation of the Trustee to provide adequate assurance that
the Trustee will "promptly" cure defaults and compensate Landlord for actual
pecuniary loss, the word "promptly" shall mean that cure of defaults and
compensation will occur no later than sixty (60) days following the filing of
any motion or application to assume this Lease; and (b) the obligation of the
Trustee to compensate or to provide adequate assurance that the Trustee will
promptly compensate Landlord for "actual pecuniary loss." The term "actual
pecuniary loss" shall
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mean, in addition to any other provisions contained herein relating to
Landlord's damages upon default, obligations of Tenant to pay money under this
Lease and all attorneys' fees and related costs of Landlord incurred in
connection with any default of Tenant in connection with Tenant's bankruptcy
proceedings).
(e) Any person or entity to which this Lease is assigned pursuant to
the provisions of the Bankruptcy Code shall be deemed, without further act or
deed, to have assumed all of the obligations arising under this Lease and each
of the conditions and provisions hereof on and after the date of such
assignment. Any such assignee shall, upon the request of Landlord, forthwith
execute and deliver to Landlord an instrument, in form and substance acceptable
to Landlord, confirming such assumption.
23.7 MANAGEMENT AGREEMENT. Tenant shall not enter into any
management agreement that provides for the management and operation of the
entire Property by an unaffiliated third party without the prior written consent
of Landlord and any such agreement shall be deemed to be an assignment for
purposes of this Lease. The golf course at the Property will always be managed
by a golf course operator experienced in the operations of first-class golf
courses.
23.8 RIGHT OF FIRST OFFER.
(a) Subject in all events to the restrictions contained herein on
assignments or other transfers, in the event either party desires to assign,
sell, convey or otherwise transfer (in any case, "Transfer") all or any portion
of its interest in the Property, or should either party receive an offer for the
same which such party intends to accept (in either case, the "Selling Party"),
the Selling Party shall give prompt notice in writing to the other party hereto
("Buying Party") setting forth the interests or rights (the "Conveyed Rights")
which will be the subject of the Transfer, the price and other terms (the "Terms
of Sale") of the Transfer of the Conveyed Rights.
(b) The giving of such notice by the Selling Party to the Buying
Party shall constitute an offer by Selling Party to Transfer the Conveyed Rights
to the Buying Party upon the same terms and conditions as contained in the Terms
of Sale. Within ten (10) days after receipt of such notice, the Buying Party
shall request any and all further information covering such offer as the Selling
Party may reasonably require in order to evaluate fully such offer.
(c) Within thirty (30) days after the Selling Party has supplied
(to the extent available or reasonably obtainable) all requested information to
the Buying Party (the "Election Period"), the Buying Party may elect (by sending
notice to the Selling Party) to purchase or acquire the Conveyed Rights upon
65
the same terms and conditions as contained in the Terms of Sale. If the Buying
Party elects to purchase, then on the closing date (which date shall be the date
set forth in the Buying Party's notice of election to the Selling Party but
shall not be sooner than 15 days nor later than 120 days after the date of the
giving of such notice of election), the Selling Party shall convey, transfer and
assign to the Buying Party (or to its nominee or designee) all of the Conveyed
Rights upon the same terms and conditions as contained in the Terms of Sale.
(d) If the Buying Party does not exercise its right to purchase
within the Election Period, the Selling Party may Transfer the Conveyed Rights
to any third party; provided, however, such Transfer is made on terms and
conditions no more favorable to such third party than those set forth in the
Terms of Sale and such Transfer is consummated within 120 days after the
expiration of the Election Period. In the event that such Transfer to a third
party is not consummated within such 120 days, the provisions of this Section
23.8 shall be applicable to any subsequent proposed Transfer by the Selling
Party as if the previous Terms of Sale had never been submitted.
(e) No such sale shall relieve the Selling Party from any of its
obligations under this Lease accruing prior to such sale.
(f) The terms of this Section 23.8 shall not apply to Transfers of
Conveyed Rights (i) to any Affiliate, (ii) to any transfers by inter vivos gift
or by testamentary transfer to any spouse, parent, sibling, in-law, child or
grandchild or any holder of a direct or indirect interest in Tenant, to a trust
for the benefit of any holder of a direct or indirect interest in Tenant or such
spouse, parent, sibling, in-law, child or grandchild of a holder of a direct or
indirect interest in Tenant, or (ii) to any person or entity that is a
constituent member, partner or shareholder of Tenant or of any entity that has a
direct or indirect interest in Tenant, or (iii) to any transfer to any entity
acquiring all or substantially all of the assets of Landlord or any Affiliate of
Landlord.
ARTICLE 24
OFFICER'S CERTIFICATES AND OTHER STATEMENTS
24.1 OFFICER'S CERTIFICATES. At any time, and from time to time
upon either party's receipt of not less than ten (10) days' prior written
request by the other party hereto, such party will furnish to the other party an
Officer's Certificate certifying that:
(a) this Lease is unmodified and in full force and effect (or that
this Lease is in full force and effect as modified and setting forth the
modifications);
66
(b) the dates to which the Rent has been paid;
(c) whether or not to the best knowledge of Tenant (or Landlord,
as the case may be), Tenant (or Landlord) is in default in the performance
of any covenant, agreement or condition contained in this Lease and, if so,
specifying each such default of which Tenant (or Landlord) may have
knowledge;
(d) that, except as otherwise specified, there are no proceedings
pending or, to the knowledge of the signatory, threatened, against Tenant
(or Landlord) before or by any court or administrative agency which, if
adversely decided, would materially and adversely affect the financial
condition and operations of Tenant (or Landlord); and
(e) responding to such other questions or statements of fact as
Landlord (or Tenant) shall reasonably request.
Either party's failure to deliver such Officer's Certificate within
such time shall constitute an acknowledgement by such party that this Lease is
unmodified and in full force and effect except as may be represented to the
contrary by the requesting party, the requesting party is not in default in the
performance of any covenant, agreement or condition contained in this Lease and
the other matters set forth in such request, if any, are true and correct. Any
such Officer's Certificate furnished pursuant to this Section 24.1 may be relied
upon by the requesting party and any prospective lender or purchaser or other
transferee of the requesting party.
24.2 ENVIRONMENTAL STATEMENTS. Immediately upon Tenant's learning,
or having reasonable cause to believe, that any Hazardous Material in a quantity
sufficient to require remediation or reporting under applicable law is located
in, on or under the Property or any adjacent property, Tenant shall notify
Landlord in writing of (a) the existence of any such Hazardous Material; (b) any
enforcement, cleanup, removal, or other governmental or regulatory action
instituted, completed or threatened; (c) any claim made or threatened by any
Person against Tenant or the Property relating to damage, contribution, cost
recovery, compensation, loss, or injury resulting from or claimed to result from
any Hazardous Material; and (d) any reports made to any federal, state or local
environmental agency arising out of or in connection with any Hazardous Material
in or removed from the Property, including any complaints, notices, warnings or
asserted violations in connection therewith.
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ARTICLE 25
LANDLORD MORTGAGES
25.1 LANDLORD MAY GRANT LIENS. Subject to Section 25.2, without
the consent of Tenant, Landlord may, from time to time, directly or indirectly,
create or otherwise cause to exist any Landlord's Encumbrance upon the Property,
or any portion thereof or interest therein, whether to secure any borrowing or
other means of financing or refinancing. Provided Tenant receives a
non-disturbance agreement in a form and substance customarily agreed to by
sophisticated parties from any party holding an interest in the Property or any
portion thereof superior to that of Tenant under this Lease, this Lease is and
at all times shall be subject and subordinate to any ground or underlying
leases, mortgages, trust deeds or like encumbrances, which may now or hereafter
affect the Property and to all renewals, modifications, consolidations,
replacements and extensions of any such lease, mortgage, trust deed or like
encumbrance. This clause shall be self-operative and no further instrument of
subordination shall be required by any ground or underlying lessor or by any
mortgagee or beneficiary, affecting any lease or the Property. In confirmation
of such subordination, Tenant shall execute promptly any certificate that
Landlord may request for such purposes.
25.2 TENANT'S NON-DISTURBANCE RIGHTS. So long as Tenant shall pay
all Rent as the same becomes due and shall fully comply with all of the terms of
this Lease and fully perform its obligations hereunder, none of Tenant's rights
under this Lease shall be disturbed by the holder of any Landlord's Encumbrance
which is created or otherwise comes into existence after the Commencement Date.
25.3 FACILITY MORTGAGE PROTECTION. Tenant agrees that the holder
of any Landlord Encumbrance shall have no duty, liability or obligation to
perform any of the obligations of Landlord under this Lease prior to becoming
the Landlord, but that in the event of Landlord's default with respect to any
such obligation, Tenant will give any such holder whose name and address have
been furnished Tenant in writing for such purpose notice of Landlord's default
and allow such holder thirty (30) days following receipt of such notice for the
cure of said default before invoking any remedies Tenant may have by reason
thereof.
ARTICLE 26
SALE OF FEE INTEREST
If Landlord shall convey the Property in accordance with the terms
hereof, and subject to Tenant's rights under Section 23.8 other than as security
for a debt, Landlord shall, upon the written assumption by the transferee of the
Property of all liabilities and obligations of the Lease be released from all
68
future liabilities and obligations under this Lease arising or accruing from and
after the date of such conveyance or other transfer as to the Property; provided
Landlord's transferee agrees in writing to assume all of Landlord's obligations
under this Lease arising from and after the date of such transfer. All such
future liabilities and obligations shall thereupon be binding upon the new
owner.
ARTICLE 27
DISPUTE RESOLUTION
27.1 DISPUTE RESOLUTION PROCEDURE. Any dispute, controversy or
claim arising out of or relating to this Lease ("DISPUTE") shall be resolved in
the following manner, which shall be in lieu of litigation in any court:
(a) NEGOTIATION. The parties will attempt in good faith to
resolve the Dispute promptly by negotiations between senior representatives of
the parties who have authority to settle the Dispute (each a "REPRESENTATIVE")
in accordance with the following procedures:
(i) The party raising the Dispute ("DISPUTING PARTY") shall
give the other party written notice of the Dispute ("DISPUTE NOTICE").
Within ten (10) days after receipt of a Dispute Notice, the receiving
party shall submit to the Disputing Party a written response. The
Dispute Notice and the response shall include (A) a statement of the
nature of the Dispute or the party's position relative to the Dispute,
as applicable, (B) a summary of the information supporting the party's
position, and (C) the name and title of the individual who will be
that party's Representative in the resolution of the Dispute. The
Representatives shall meet at a mutually acceptable time and place
within ten (10) days after the date of the other party's response to
the Dispute Notice and thereafter as often as they reasonably deem
necessary to exchange relevant information and to attempt to resolve
the Dispute.
(ii) The Representatives shall discuss the Dispute and
negotiate in good faith in an effort to resolve the Dispute without
the need for mediation or arbitration. During the course of such
negotiations, all reasonable requests made by one party to the other
for information will be honored in order that each of the parties may
be fully advised. The specified format for such discussions shall be
left to the discretion of the Representatives, but may include the
preparation of agreed upon statements of fact or of positions urnished
to the other party. All verbal and written
69
communications between the parties and issued or prepared in
connection with this Section 27.1(a) shall be deemed prepared and
communicated in furtherance, and in the context, of dispute
settlement, and shall be exempt from discovery and production, and
shall not be admissible in evidence (whether as admission or
otherwise), in any arbitration or other proceedings for the resolution
of the Dispute.
(b) MEDIATION. If the Dispute is not resolved within forty-five
(45) days of the date of the Dispute Notice, or if the party receiving the
Dispute Notice does not respond in writing to the Dispute Notice within ten (10)
days after receiving the same, or if either party will not meet with the other
party within ten (10) days after delivery of such response to the Disputing
Party, then either party may refer the Dispute to the Judicial Arbitration &
Mediation Services, Inc. ("JAMS") for mediation in accordance with the following
procedures:
(i) A party may commence the mediation process with JAMS by
notifying JAMS and the other party in writing ("MEDIATION NOTICE") of
such party's desire that the Dispute be resolved through mediation,
including therewith a copy of the Dispute Notice and the response
thereto, if any.
(ii) The mediation shall be conducted through, by and at the
JAMS' office located closest to the Property.
(iii) The mediation shall be conducted by a single mediator.
The parties may select any mutually acceptable member from the panel
of retired judges at JAMS as a mediator. If the parties cannot agree
on a mediator within five (5) days after the date of the Mediation
Notice, then the JAMS' Arbitration Administrator shall send a list and
resumes of three (3) available mediators to the parties, each of whom
shall strike one name, and the remaining person shall be appointed as
the mediator. If more than one name remains, either because one or
both parties has failed to respond to the JAMS' Arbitration
Administrator within five (5) days of receiving the list or because
one or both parties have failed to strike a name from the list or
because both parties strike the same name, the JAMS' Arbitration
Administrator will choose the mediator from the remaining names. If
the designated mediator shall die, become incapable of, unwilling to,
or unable to serve or proceed with the mediation, a substitute
mediator shall be appointed in accordance with the selection procedure
described above in this Section 27.1(b)(iii), and such substituted
mediator shall have
70
all such powers as if he or she had been originally appointed herein.
(iv) The mediation shall consist of one or more informal,
non-binding meetings between the Representatives and the mediator,
jointly and in separate caucuses, out of which the mediator will seek
to guide the parties to a resolution of the Dispute. The mediation
process shall continue until the resolution of the Dispute, or the
termination of the mediation process pursuant to Section 27.1(b)(vii).
(v) The costs of the mediation, including fees and
expenses, shall be borne equally by the parties.
(vi) All verbal and written communications between the
parties and issued or prepared in connection with this Section 27.1(b)
shall be deemed prepared and communicated in furtherance, and in the
context, of dispute settlement, and shall be exempt from discovery and
production, and shall not be admissible in evidence (whether as
admission or otherwise) in any arbitration or other proceedings for
the resolution of the Dispute.
(vii) The initial mediation meeting between the
Representatives and the mediator shall be held within twenty (20) days
after the Mediation Notice. Either party may terminate the mediation
process and commence the arbitration procedures described in Section
27.1(c) below upon the earlier to occur of (A) the failure of the
initial mediation meeting to occur within twenty (20) days after the
date of the Mediation Notice, (B) the passage of thirty (30) days from
the date of the Mediation Notice without the Dispute having been
resolved, or (C) such time as the mediator makes a finding that there
is no possibility of resolution through mediation.
(c) ARBITRATION. If the Dispute is not resolved through the
mediation process, then upon termination of the mediation process pursuant to
Section 27.1(b)(vii), the Dispute shall be resolved by a final and binding
arbitration administered by JAMS according to its Rules of Practice and
Procedure then in effect and the following procedures:
(i) Unless barred by the statute of limitations, either
party may initiate the arbitration process by serving, as in a civil
action, the other party with notice of the nature of the Dispute and a
demand for arbitration ("ARBITRATION DEMAND"), which Arbitration
Demand shall include a description of the Dispute, the amount involved
and the remedy sought. The Dispute shall be waived and forever barred
if on the date of the
71
Dispute Notice, the claim, if asserted in a civil action, would be
barred by the applicable state or federal statute of limitations.
(ii) The party commencing the arbitration process shall file
a copy of the Arbitration Demand at the regional office of JAMS
located closest to the Property, together with the appropriate filing
fee as provided in JAMS' existing fee schedule.
(iii) If the responding party desires to file a response or
counterclaim, it must do so within twenty (20) days of service of the
Arbitration Demand. Failure to file a counterclaim or response will
not operate to delay the arbitration proceedings.
(iv) After the filing of the Arbitration Demand, response
and counterclaim, no further claims or counterclaims may be made
except on motion to the arbitrator.
(v) The case shall be submitted to a single arbitrator. The
parties may select any mutually acceptable member from the panel of
retired judges at JAMS as arbitrator. If the parties cannot agree on
an arbitrator within five (5) days after the date of the Arbitration
Demand, then the JAMS' Arbitration Administrator shall send a list and
resumes of three (3) available arbitrators to the parties, each of
whom shall strike one name, and the remaining person shall be
appointed as the arbitrator. If more than one name remains, either
because one or both parties has failed to respond to the JAMS'
Arbitration Administrator within five (5) days of receiving the list
or because one or both parties have failed to strike a name from the
list or because both parties strike the same name, the JAMS'
Arbitration Administrator will choose the arbitrator from the
remaining names. If the designated arbitrator shall die, become
incapable of, unwilling to, or unable to serve or proceed with the
arbitration, a substitute arbitrator shall be appointed in accordance
with the procedure described in this Section 27.1(c)(v), and such
substituted arbitrator shall have all such powers as if he or she had
been originally appointed herein.
(vi) arbitrator with any papers or information demanded or
in the event that either party shall fail to attend hearings before
him or her, the arbitrator is empowered by both parties to proceed ex
parte.
(vii) The JAMS' Arbitration Administrator shall schedule a
pre-hearing conference with the parties
72
within twenty (20) days after the date of the Arbitration Demand for
the purpose of narrowing the issues, establishing a discovery
schedule, arranging an acceptable procedure for any law and motion
proceedings and in all respects arranging for the most expeditious
hearing possible of the matters in dispute.
(viii) Discovery shall be at the discretion of the arbitrator
and allowed only upon a showing of good cause utilizing the following
guidelines:
(A) The arbitrator shall have discretion to order
pre-hearing exchange of information, including but not limited
to, the production of requested documents and exchanges of
summaries of testimony of proposed witnesses; provided,
however, that under all circumstances a party shall be
entitled to receive from the other party any information or
documents which it is entitled to receive or review under this
Agreement and the right to receive the same shall not be
subject to the arbitrator's discretion.
(B) Each party may propound only one interrogatory
requesting the names and addresses of the witnesses to be
called at the arbitration hearing.
(C) On a date to be determined at the pre-hearing
conference, each party may serve one request for the
production of documents. The documents are to be exchanged
within five (5) days of such request.
(D) Each party may depose up to six (6) witnesses.
Each deposition must be concluded within four (4) hours and
all depositions must be taken within twenty (20) days of the
pre-hearing conference. Any party deposing an opponent's
expert must pay the expert's fee for attending the deposition.
(ix) The arbitration hearing shall commence within thirty
(30) days of the pre-hearing conference and shall be conducted in
accordance with the following:
(A) The parties must file briefs with the
arbitrator at least three (3) days before the hearing,
specifying the facts each intends to prove and analyzing the
applicable law.
(B) The parties have the right to representation by
legal counsel throughout the arbitration proceedings.
(C) Within reasonable limitations, both sides at
the hearing may call and examine witnesses for
73
relevant testimony, introduce relevant exhibits or other
documents, cross-examine or impeach witnesses who shall have
testified orally on any matter relevant to the issues, and
otherwise rebut evidence, as long as these rights are
exercised in an efficient and expeditious manner.
(D) A court reporter shall attend the arbitration
proceedings and keep a stenographic record thereof.
(E) Any party may request that oral evidence be
given under oath.
(F) The judicial rules in effect in the Central
District of the Superior Court of the State of California for
the conduct of non-jury trials, including, but not limited to,
the order of proof, the conduct of the hearing and the
presentation and admissibility of evidence, shall apply in the
arbitration proceeding.
(x) The issue of whether a Dispute is arbitrable hereunder
shall also be subject to arbitration under this Section 27.1. The
arbitrator shall apply the substantive laws of the State of
California, other than the law of conflicts, and U.S. federal laws, to
the resolution of each Dispute and to the issue of ax of any Dispute,
including, but not limited to, the provisions of California statutory
laws dealing with arbitration and the United States Arbitration Act, 9
U.S.C. Section 1-16, as they may exist at the time of the Arbitration
Demand, but only insofar as such statutes are not in conflict with
this Agreement, and specifically excepting therefrom sections of such
statutes dealing with discovery. Judgment upon the award rendered by
the arbitrator may be entered by any court having jurisdiction
thereof.
(xi) The arbitrator's award shall be made in accordance with
the following:
(A) The decision shall be based on the evidence
introduced at the hearing, including all logical and
reasonable inferences therefrom. The arbitrator may grant any
remedy or relief which is just and equitable, including, but
not limited to, injunctive relief or specific performance.
(B) The award must be made in writing and signed by
the arbitrator and shall contain a concise statement of the
reasons in support of the decision.
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(C) The award must be mailed promptly to the
parties, but no later than thirty (30) days from the closing
of the hearing.
(D) The award can be judicially enforced pursuant
to Section 1285, ET SEQ. of the Code of Civil Procedure. The
award shall be final and binding and there shall be no direct
appeal from the award on the grounds of error in the
application of the law.
(E) The arbitrator shall award to the prevailing
party in the arbitration all of its reasonable costs and
expenses in connection with the arbitration, including, but
not limited to, reasonable attorneys' fees and costs. If the
arbitration involves more than one Dispute and the same party
does not prevail in each of the Disputes, the arbitrator shall
award such reasonable costs and expenses, equitably and
ratably, for each Dispute on the basis of which party has
prevailed in such Dispute.
ARTICLE 28
MISCELLANEOUS
28.1 LANDLORD'S RIGHT TO INSPECT. Upon Landlord giving Tenant
reasonable advance notice, Tenant shall permit Landlord and its authorized
representatives to inspect the Property during usual business hours subject to
any security, health, safety or confidentiality requirements of Tenant or any
governmental agency or insurance requirement relating to the Property, or
imposed by law or applicable regulations. Landlord shall indemnify Tenant for
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by, or asserted against Tenant by reason of
Landlord's inspection pursuant to this Section 28.1.
28.2 LANDLORD'S GOLFING PRIVILEGES. The members of Landlord's or
Landlord's Affiliates senior executive staff (not to exceed a total of seven (7)
persons) and their guests (if accompanied by same) shall have the right, upon
reasonable notice to Tenant, to play an 18-hole round of golf and utilize the
clubhouse and other Improvements located on the Property free of charge on any
day on which the Property is open for golf to the general public or the
membership, as applicable.
28.3 BREACH BY LANDLORD. It shall be a breach of this Lease if
Landlord shall fail to observe or perform any material term, covenant or
condition of this Lease on its part to be performed and such failure shall
continue for a period of thirty (30) days after notice thereof from Tenant,
unless such
75
failure cannot with due diligence be cured within a period of thirty (30) days,
in which case such failure shall not be deemed to continue if Landlord, within
said thirty (30)-day period, proceeds promptly and with due diligence to cure
the failure and diligently completes the curing thereof. The time within which
Landlord shall be obligated to cure any such failure shall also be subject to
extension of time due to the occurrence of any Unavoidable Delay.
28.4 COMPETITION BETWEEN LANDLORD AND TENANT. Landlord and Tenant
agree that neither party shall be restricted as to other relationships and
competition. Affiliates of Tenant shall be allowed to own, lease and/or manage
other golf courses that are not affiliated with Landlord, provided that such
other ownership, leasing or management arrangements are disclosed to Landlord in
writing. Landlord may acquire or own golf courses that may be geographically
proximate to one or more golf courses that Tenant or Affiliates of Tenant may
own, manage or lease.
28.5 NO WAIVER. No failure by Landlord or Tenant to insist upon
the strict performance of any term hereof or to exercise any right, power or
remedy consequent upon a breach thereof, and no acceptance of full or partial
payment of Rent during the continuance of any such breach, shall constitute a
waiver of any such breach or of any such term. To the extent permitted by law,
no waiver of any breach shall affect or alter this Lease, which shall continue
in full force and effect with respect to any other then existing or subsequent
breach.
28.6 REMEDIES CUMULATIVE. To the extent permitted by law, each
legal, equitable or contractual rights, power and remedy of Landlord or Tenant
now or hereafter provided either in this Lease or by statute or otherwise shall
be cumulative and concurrent and shall be in addition to every other right,
power and remedy. The exercise or beginning of the exercise by Landlord or
Tenant of any one or more of such rights, powers and remedies shall not preclude
the simultaneous or subsequent exercise by Landlord or Tenant of any or all of
such other rights, powers and remedies.
28.7 ACCEPTANCE OF SURRENDER. No surrender to Landlord of this
Lease or of the Property or any part thereof, or of any interest therein, shall
be valid or effective unless agreed to and accepted in writing by Landlord and
no act by Landlord or any representative or agent of Landlord, other than such a
written acceptance by Landlord, shall constitute an acceptance of any such
surrender.
28.8 NO MERGER OF TITLE. There shall be no merger of this Lease or
of the leasehold estate created hereby by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly, (a) this Lease or the
leasehold estate
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created hereby or any interest in this Lease or such leasehold estate and
(b) the fee estate in the Property.
28.9 QUIET ENJOYMENT. So long as Tenant shall pay all Rent as the
same becomes due and shall fully comply with all of the terms of this Lease and
fully perform its obligations hereunder, Tenant shall peaceably and quietly
have, hold and enjoy the Property for the Term hereof, free of any claim or
other action by Landlord or anyone claiming by, through or under Landlord, but
subject to all liens and encumbrances of record as of the date hereof or any
Landlord's Encumbrances.
28.10 NOTICES. All notices, demands, requests, consents, approvals
and other communications hereunder shall be in writing and delivered or mailed
(by registered or certified mail, return receipt requested and postage prepaid),
addressed to the respective parties, as set forth below:
If to Landlord: Golf Trust of America, L.P.
14 North Adger's Wharf
Charleston, South Carolina 29401
Attention: W. Bradley Blair, II
Scott D. Peters
If to Tenant: EGSB, LLC
c/o Environmental Industries
24121 Ventura Boulevard
Calabasas, California 91302
Attention: Michael Dingman
and: SBCR GOLF, LLC
c/o River Bank America
645 Fifth Avenue, 8th Floor
New York, New York 10022
Attention: Ilyne Mendelson, Esq.
With a copy to: Paul, Hastings, Janofsky and Walker
555 South Flower Street
23rd Floor
Los Angeles, California 90071
Attention: M. Guy Maisnik, Esq.
28.11 SURVIVAL OF CLAIMS. Anything contained in this Lease to the
contrary notwithstanding, all claims against, and liabilities of, Tenant or
Landlord arising prior to any date of termination of this Lease shall survive
such termination.
28.12 INVALIDITY OF TERMS OR PROVISIONS. If any term or provision
of this Lease or any application thereof shall be invalid or unenforceable, the
remainder of this Lease and any other application of such term or provision
shall not be affected thereby.
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28.13 PROHIBITION AGAINST USURY. If any late charges provided for
in any provision of this Lease are based upon a rate in excess of the maximum
rate permitted by applicable law, the parties agree that such charges shall be
fixed at the maximum permissible rate.
28.14 AMENDMENTS TO LEASE. Neither this Lease nor any provision
hereof may be changed, waived, discharged or terminated except by an instrument
in writing and in recordable form signed by Landlord and Tenant.
28.15 SUCCESSORS AND ASSIGNS. All the terms and provisions of this
Lease shall be binding upon and inure to the benefit of the parties hereto. All
permitted assignees or sublessees shall be subject to the terms and provisions
of this Lease.
28.16 TITLES. The headings in this Lease are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
28.17 GOVERNING LAW. This Lease shall be governed by and construed
in accordance with the laws of the State (but not including its conflict of laws
rules).
28.18 MEMORANDUM OF LEASE. Landlord and Tenant shall, promptly upon
the request of either, enter into a short form memorandum of this Lease, in form
and substance satisfactory to Landlord and suitable for recording under the
State, in which reference to this Lease, and all options contained herein, shall
be made. Tenant shall pay all costs and expenses of recording such Memorandum
of Lease.
28.19 ATTORNEYS' FEES. In the event of any dispute between the
parties hereto involving the covenants or conditions contained in this Lease or
arising out of the subject matter of this Lease, the prevailing party shall be
entitled to recover against the other party reasonable attorneys' fees and court
costs.
28.20 NO THIRD PARTY BENEFICIARIES. Nothing in this Lease, express
or implied, is intended to confer any rights or remedies under or by reason of
this Lease on any Person other than the parties to this Lease and their
respective permitted successors and assigns, nor is anything in this Lease
intended to relieve or discharge any obligation of any third Person to any party
hereto or give any third Person any right of subrogation or action against any
party to this Lease.
28.21 NON-RECOURSE AS TO LANDLORD. Anything contained herein to the
contrary notwithstanding, any claim based on or in respect of any liability of
Landlord under this Lease shall be enforced only against the Property and not
against any
78
other assets, properties or funds of (a) Landlord, (b) any director, officer,
general partner, limited partner, employee or agent of Landlord, or any general
partner of Landlord, any of their respective general partners or stockholders
(or any legal representative, heir, estate, successor or assign of any thereof),
(c) any predecessor or successor partnership or corporation (or other entity) of
Landlord, or any of their respective general partners, either directly or
through either Landlord or their respective general partners or any predecessor
or successor partnership or corporation or their stockholders, officers,
directors, employees or agents (or other entity), or (d) any other Person
affiliated with any of the foregoing, or any director, officer, employee or
agent of any thereof.
28.22 NO RELATIONSHIP. Landlord shall in no event be construed for
any purpose to be a partner, joint venturer or associate of Tenant or of any
subtenant, operator, concessionaire or licensee of Tenant with respect to the
Property or any of the Other Leased Properties or otherwise in the conduct of
their respective businesses.
28.23 RELETTING. If Tenant does not exercise its option to extend
or further extend the Term under Section 3.2 or if an Event of Default occurs,
then Landlord shall have the right during the remainder of the Term then in
effect to advertise the availability of the Property for sale or reletting and
to show the Property to prospective purchasers or tenants or their agents at
such reasonable times as Landlord may elect.
28.24 CONSENT/DUTY TO ACT REASONABLY. Whenever the consent of
Landlord or Tenant is required under the Lease, such consent shall not be
unreasonably withheld or delayed, unless another standard is specifically stated
otherwise herein. Except as otherwise provided, whenever the Lease grants
Landlord or Tenant the right to take action, exercise discretion, establish
rules and regulations, or make an allocation or other determination, Landlord
and Tenant shall reasonably act in good faith and take no action which might
result in the frustration of the other party's reasonable expectations
concerning the benefits to be enjoyed under the Lease.
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LANDLORD: SANDPIPER-GOLF TRUST, LLC,
a Delaware limited liability company
By: GOLF TRUST OF AMERICA, L.P.,
a Delaware limited partnership
By: GTA GP, Inc., a Maryland
corporation
Its: General Partner
By: /s/ W. Bradley Blair, II
---------------------------------
W. Bradley Blair, II
President and CEO
TENANT: SANDPIPER AT SBCR, LLC,
a Delaware limited liability company
By: SBCR GOLF, LLC
a Delaware limited liability company
By: Prescott Management Corp.,
a Delaware corporation, its
authorized signatory
By: /s/ Stephen Mann
-----------------------------------
Stephen Mann
President
By: EGSB, LLC
a Delaware limited liability company
By: /s/ Michael L. Dingman
-----------------------------------
Michael L. Dingman
Its Authorized Signatory
S-1