- --------------------------------------------------------------------------------
[Persimmon Ridge Golf Club]
[Louisville]
[Shelby County]
[Kentucky]
L E A S E
GOLF TRUST OF AMERICA, L.P.
LANDLORD
AND
GRANITE RIDGE, INC.,
TENANT
DATED AS OF MARCH 9, 1998
- --------------------------------------------------------------------------------
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 . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 3
TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.1 Initial Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.2 Extension Options . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.3 Right of First Offer to Lease . . . . . . . . . . . . . . . . . . . 16
ARTICLE 4
RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.1 Rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.2 Increase in Initial Base Rent . . . . . . . . . . . . . . . . . . . 17
4.3 Percentage Rent . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.4 Annual Reconciliation of Percentage Rent. . . . . . . . . . . . . . 18
4.5 Increase in Base Rent Following Conversion Date . . . . . . . . . . 19
4.6 Record-keeping. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.7 Additional Charges. . . . . . . . . . . . . . . . . . . . . . . . . 19
4.8 Late Payment of Rent. . . . . . . . . . . . . . . . . . . . . . . . 19
4.9 Net Lease; Capital Replacement Reserve. . . . . . . . . . . . . . . 20
4.10 Allocation of Revenues . . . . . . . . . . . . . . . . . . . . . . 20
4.11 Line of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 5
SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.1 Pledge of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . 21
5 2 Obligation to Withhold Distributions. . . . . . . . . . . . . . . . 21
5 3 Cross-Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.4 Landlord's Lien . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.5 Collateral Conversion and Termination Payment . . . . . . . . . . . 22
ARTICLE 6
IMPOSITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.1 Payment of Impositions. . . . . . . . . . . . . . . . . . . . . . . 22
6.2 Information and Reporting . . . . . . . . . . . . . . . . . . . . . 22
i
6.3 Prorations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.4 Refunds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.5 Utility Charges . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.6 Assessment Districts. . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 7
TENANT WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.1 No Termination, Abatement, Etc .. . . . . . . . . . . . . . . . . . 23
7.2 Condition of the Property . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 8
OWNERSHIP OF TANGIBLE PERSONAL PROPERTY. . . . . . . . . . . . . . . . . . . 26
8.1 Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.2 Tenant's Personal Property. . . . . . . . . . . . . . . . . . . . . 26
8.3 Tenant's Obligations. . . . . . . . . . . . . . . . . . . . . . . . 26
8.4 Landlord's Waivers. . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 9
USE OF PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.1 Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.2 Specific Prohibited Uses. . . . . . . . . . . . . . . . . . . . . . 27
9.3 Membership Sales. . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.4 Landlord to Grant Easements, Etc. . . . . . . . . . . . . . . . . . 28
9.5 Tenant's Additional Covenants . . . . . . . . . . . . . . . . . . . 29
9.6 Valuation of Remainder Interest in Lease. . . . . . . . . . . . . . 29
ARTICLE 10
HAZARDOUS MATERIALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
10.1 Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
10.2 Remediation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.3 Violations; Orders . . . . . . . . . . . . . . . . . . . . . . . . 30
10.4 Permits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.5 Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.6 Remediation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.7 Tenant's Indemnification of Landlord . . . . . . . . . . . . . . . 31
10.8 Survival of Indemnification Obligations. . . . . . . . . . . . . . 31
10.9 Environmental Violations at Expiration
or Termination of Lease. . . . . . . . . . . . . . . . . . . . . . 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. . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 12
TENANT IMPROVEMENTS; SUBMITTAL OF BUDGETS;
ii
FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
12.1 Tenant's Right to Construct. . . . . . . . . . . . . . . . . . . . 34
12.2 Scope of Right . . . . . . . . . . . . . . . . . . . . . . . . . . 35
12.3 Cooperation of Landlord. . . . . . . . . . . . . . . . . . . . . . 35
12.4 Capital Replacement Fund . . . . . . . . . . . . . . . . . . . . . 36
12.5 Rights in Tenant Improvements. . . . . . . . . . . . . . . . . . . 36
12.6 Landlord's Right to Audit Calculation
of Gross Golf Revenue. . . . . . . . . . . . . . . . . . . . . . . 37
12.7 Annual Budget. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
12.8 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 13
LIENS, ENCROACHMENTS AND OTHER TITLE MATTERS . . . . . . . . . . . . . . . . 40
13 1 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
13.2 Encroachments and Other Title Matters. . . . . . . . . . . . . . . 41
ARTICLE 14
PERMITTED CONTESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
14.1 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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. . . . . . . . . . . . . . . . . . . . . . . 46
15.5 Form Satisfactory, Etc . . . . . . . . . . . . . . . . . . . . . . 46
15.6 Change in Limits . . . . . . . . . . . . . . . . . . . . . . . . . 47
15.7 Blanket Policy . . . . . . . . . . . . . . . . . . . . . . . . . . 47
15.8 Insurance Proceeds . . . . . . . . . . . . . . . . . . . . . . . . 47
15.9 Disbursement of Proceeds . . . . . . . . . . . . . . . . . . . . . 48
15.10 Excess Proceeds, Deficiency of Proceeds . . . . . . . . . . . . . 49
15.11 Reconstruction Covered by Insurance . . . . . . . . . . . . . . . 49
15.12 Reconstruction Not Covered by Insurance . . . . . . . . . . . . . 51
15.13 No Abatement of Rent. . . . . . . . . . . . . . . . . . . . . . . 51
15.14 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
15.15 Damage Near End of Term . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 16
CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
16.1 Total Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
16.2 Partial Taking . . . . . . . . . . . . . . . . . . . . . . . . . . 52
16.3 Restoration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
16.4 Award-Distribution . . . . . . . . . . . . . . . . . . . . . . . . 52
16.5 Temporary Taking . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 17
EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
iii
17.1 Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . 55
17.2 Payment of Costs and Closing Costs . . . . . . . . . . . . . . . . 55
17.3 Certain Remedies . . . . . . . . . . . . . . . . . . . . . . . . . 55
17.4 Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
17.5 Additional Remedies. . . . . . . . . . . . . . . . . . . . . . . . 57
17.6 Appointment of Receiver. . . . . . . . . . . . . . . . . . . . . . 57
17.7 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
17.8 Application of Funds . . . . . . . . . . . . . . . . . . . . . . . 57
17.9 Impounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE 18
LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. . . . . . . . . . . . . . . . . . 58
ARTICLE 19
LEGAL REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 20
HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 21
RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 22
INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
22.1 Tenant's Indemnification of Landlord . . . . . . . . . . . . . . . 60
22.2 Landlord's Indemnification of Tenant . . . . . . . . . . . . . . . 61
22.3 Mechanics of Indemnification . . . . . . . . . . . . . . . . . . . 61
22.4 Survival of Indemnification Obligations
Available Insurance Proceeds . . . . . . . . . . . . . . . . . . 62
ARTICLE 23
SUBLETTING AND ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 62
23.1 Prohibition Against Assignment . . . . . . . . . . . . . . . . . . 62
23.2 Subleases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
23.3 Transfers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
23.4 REIT Limitations . . . . . . . . . . . . . . . . . . . . . . . . . 65
23.5 Right of First Offer of Landlord to Acquire Leasehold. . . . . . . 65
23.6 Bankruptcy Limitations . . . . . . . . . . . . . . . . . . . . . . 65
23.7 Management Agreement . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE 24
OFFICER'S CERTIFICATES AND OTHER STATEMENTS. . . . . . . . . . . . . . . . . 68
24.1 Officer's Certificates . . . . . . . . . . . . . . . . . . . . . . 68
24.2 Environmental Statements . . . . . . . . . . . . . . . . . . . . . 68
iv
ARTICLE 25
LANDLORD MORTGAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
25.1 Landlord May Grant Liens . . . . . . . . . . . . . . . . . . . . . 69
25.2 Tenant's Non-Disturbance Rights. . . . . . . . . . . . . . . . . . 69
25.3 Facility Mortgage Protection . . . . . . . . . . . . . . . . . . . 70
ARTICLE 26
SALE OF FEE INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
26.1 Right of First Offer to Purchase . . . . . . . . . . . . . . . . . 70
26.2 Conveyance by Landlord . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE 27
ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
27.1 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
27.2 Arbitration Procedures . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE 28
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
28.1 Landlord's Right to Inspect. . . . . . . . . . . . . . . . . . . . 72
28.2 Breach by Landlord . . . . . . . . . . . . . . . . . . . . . . . . 72
28.3 Competition Between Landlord and Tenant. . . . . . . . . . . . . . 72
28.4 No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
28.5 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . 73
28.6 Acceptance of Surrender. . . . . . . . . . . . . . . . . . . . . . 73
28.7 No Merger of Title . . . . . . . . . . . . . . . . . . . . . . . . 73
28.8 Quiet Enjoyment. . . . . . . . . . . . . . . . . . . . . . . . . . 73
28.9 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
28.10 Survival of Claims. . . . . . . . . . . . . . . . . . . . . . . . 74
28.11 Invalidity of Terms or Provisions . . . . . . . . . . . . . . . . 74
28.12 Prohibition Against Usury . . . . . . . . . . . . . . . . . . . . 74
28.13 Amendments to Lease . . . . . . . . . . . . . . . . . . . . . . . 74
28.14 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . 74
28.15 Titles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
28.16 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 75
28.17 Memorandum of Lease . . . . . . . . . . . . . . . . . . . . . . . 75
28.18 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . 75
28.19 Non-Recourse as to Landlord . . . . . . . . . . . . . . . . . . . 75
28.20 No Relationship . . . . . . . . . . . . . . . . . . . . . . . . . 76
28.21 Reletting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
v
Exhibits
Exhibit A - Legal Description of the Land
Exhibit B - Schedule of Improvements
Exhibit C - Other Leased Property
Exhibit D - Granite Shares Pledge Agreement
Exhibit E - Adjustments to Gross Golf Revenue for Private Clubs
Exhibit F - Calculation of Gross Golf Revenue for the
Base Year by Quarter
Exhibit K - Contingent Purchase Price Formula
Exhibit K-1 - Example of Contingent Purchase Price
vi
[Persimmon Ridge Golf Club]
[Louisville]
[Shelby County]
[Kentucky]
LEASE
THIS LEASE (this "Lease"), dated as of March 9, 1998, is entered into by
and between GOLF TRUST OF AMERICA, L.P., a Delaware limited partnership
("Landlord"), and GRANITE RIDGE, INC., a Kentucky corporation ("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 February 26, 1998 by and between Landlord and
Persimmon Ridge Golf Club, L.P., a Delaware limited partnership
("Transferor"), Transferor has or will transfer to Landlord all of its right,
title and interest in and to the Property (as hereafter defined): 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 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.
1
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.
"ADJUSTED NET OPERATING INCOME" shall have the meaning set forth in
EXHIBIT K of the Agreement.
"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.
"BANKRUPTCY CODE" has the meaning provided in Section 23.6.
"BASE RENT" means one-twelfth of Annual Rase Rent.
"BASE RENT ESCALATOR" has the meaning provided in Section 4.2.
"BASE YEAR" means the twelve (12) month period beginning on January 1,
1997, and ending on December 31, 1997; PROVIDED, HOWEVER, that the Base Year
shall refer to the Fiscal Year immediately preceding the Conversion Date if
the Base Rent is increased as provided in Section 4.5. A quarter-by-quarter
calculation of Gross Golf Revenue in the Base Year is attached hereto as
EXHIBIT F.
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, the greater of
(i) an amount equal to 3% of each Fiscal Quarter's Gross Golf Revenue, to be
accrued monthly by Landlord as part of the Capital Replacement Fund, as
provided in Section 12.4 hereof, based on the Officer's Certificate, or (ii)
Forty Five Thousand and No/100 Dollars ($45,000.00).
"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 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 if the shareholders or partners
who Control Tenant as of the date hereof remain in Control of Tenant through
an agreement or equity interest.
"CODE" means the Internal Revenue Code of 1986, as the same may be
amended or supplemented, and the rules and regulations promulgated thereunder.
3
"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.
"CONTINGENT PURCHASE PRICE" shall have the meaning set forth in EXHIBIT
K attached hereto.
"CONTROL" means (including, with correlative meanings, the terms
"controlling" and "controlled by"), as applied to any Person, the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of
voting securities, by contract or otherwise.
"CONVERSION DATE" means the earlier of (i) the date Transferor elects to
receive additional Owner's Shares in the Partnership as a Contingent Purchase
Price for the contribution of the Property, (ii) the date on which Transferor
elects in writing to waive its right to receive additional Owner's Shares, or
(iii) the date that is the one hundred fifth (105th) day following the end of
the fifth (5th) full Fiscal Year of the Initial Term.
"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
4
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 twentieth
(20th) 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.
"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.
"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.
"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.
5
"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 (to the extent described in EXHIBIT
E attached hereto), (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)
fees for the use of swim, tennis or other facilities, (xi) charges for range
balls, range fees or other fees for golf practice facilities, (xii) fees or
other charges paid for golf or tennis lessons (except where retained by or
paid to a USTA or PGA professional in accordance with historical practice at
the Property), (xiii) fees or other charges for fitness centers, (xiv)
forfeited deposits with respect to any membership application, (xv) transfer
fees imposed on any member in connection with the transfer of any membership
interest, (xvi) 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 Golf Revenue and further provided that Tenant shall use commercially
reasonable efforts to structure such payment to comply with Section 23.4),
(xvii) advertising or placement fees paid by vendors in exchange for
exclusive use or name rights at the Property, and (xviii) 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 Golf Revenue shall not
include:
(a) Other Revenue;
(b) The amount of any city, county, state or federal sales,
admissions, usage, or excise tax on the item included in Gross Golf
Revenue, which is both added to or incorporated in the selling price
and paid to the taxing authority by Tenant; and
(c) 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.
"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",
6
"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);
(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;
7
(bb) any transfer or net revenue tax of Landlord or any other
Person other than Tenant: or
(cc) 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 $711,750 per year.
"INITIAL TERM" means the period of time from the Commencement Date
through the last day of the twentieth (20th) 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.
"LAND" means the land described in Exhibit A attached hereto.
"LANDLORD" means Golf Trust of America, L.P., 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).
8
"LEGAL REQUIREMENTS" means all federal, state, county, municipal and
other governmental statutes, laws (including the Americans with Disabilities
Act and any Environmental Laws), rules, orders, regulations, ordinances,
judgments, decrees and injunctions affecting either the Property or the
construction, use or alteration thereof, whether now or hereafter enacted and
in force, including any which may (i) require repairs, modifications, or
alterations in or to the Property; (ii) in any way adversely affect the use
and enjoyment thereof, and all permits, licenses and authorizations and
regulations relating thereto, and all covenants, agreements, restrictions and
encumbrances contained in any instruments, either of record or known to
Tenant (other than encumbrances created by Landlord without the consent of
Tenant), at any time in force affecting the Property; or (iii) require the
cleanup or other treatment of any Hazardous Material.
"NET OPERATING INCOME" shall have the meaning set forth in EXHIBIT K of
the Agreement.
"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
"OTHER LEASED PROPERTIES" means the property or properties leased or
hereafter leased to Tenant or an Affiliate of Tenant by Landlord or an
Affiliate of Landlord, other than pursuant to this Lease, which as of the
date hereof are the properties listed on Exhibit C attached hereto.
"OTHER 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, (ii) sale of merchandise and
inventory on the Property, and (iii) photography services.
"OVERDUE RATE" means, on any date, a rate equal to the Prime Rate plus
an additional five percent (5%) per annum, but in no event greater than the
maximum rate then permitted under applicable law.
"OWNER'S SHARES" means limited partnership interests in the Partnership.
"PARTNERSHIP" means Golf Trust of America, L.P., a Delaware limited
partnership.
9
"PERCENTAGE RENT" means, for any Fiscal Year during the Lease Term,
forty percent (40%) of the positive difference, if any, between the current
year's Gross Golf Revenue and the Gross Golf Revenue for the Base Year, 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.
"PLEDGE AGREEMENT" means that certain pledge agreement dated as of the
date of this Lease, by and between Pledgor and Landlord, in the form attached
hereto as EXHIBIT D.
"PLEDGED SHARES" means the Pledgor's Shares pledged pursuant to the
Pledge Agreement.
"PLEDGOR" means Granite Golf Group, Inc., a Nevada corporation and
affiliated entity of Tenant.
"PRIMARY INTENDED USE" means the operation of a golf course and other
activities incidental to the operation of a golf course.
"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.
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"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, with the
exception of golf carts.
"TENANT" means Granite Ridge, Inc., a Kentucky corporation, an
affiliated entity of Granite Golf Group, Inc., a Nevada corporation, 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.
"TENANT'S RIGHT OF FIRST OFFER TO LEASE" has the meaning provided in
Section 3.3.
"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.
"TERMINATION PAYMENT" means an amount calculated on the Expiration Date
equal to the positive difference, if any, between one hundred thirteen and
one-half percent (113.5%) of all rent due under this Lease and the Net
Operating Income for the prior Fiscal Year, divided by the initial
capitalization rate of nine and three-fourths percent (9.75%).
11
"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 in the good faith judgment of Landlord, reasonably
exercised, 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 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.
12
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 twentieth (20th) full Fiscal
Quarter following the Commencement Date.
3.2 EXTENSION OPTIONS. Provided that (i) at the end of the Initial Term
of the Lease, the average trade price for the common stock of Pledgor for the
previous one (1) year exceeds $2.00 per share, and (ii) a majority of the
common stock of Pledgor or a substantial portion of its assets have not been
sold, transferred or conveyed to an entity other than Landlord or a Landlord
affiliate entity (collectively, Renewal Conditions"), Tenant shall have the
right to extend the Initial Term of this Lease five (5) consecutive times for
a period of five (5) years each (each such extension, an "Extended Term").
Tenant may exercise its option for an Extended Term solely by giving written
notice at least one hundred eighty (180) days prior to the termination of the
then-current term. Pledgor shall be entitled to exercise these options only
if at the time of the giving of such notice, Tenant is then the lessee of the
Property pursuant to this Lease, the Renewal Conditions have been met, and at
the time of the commencement of the applicable Term or Extended Term no Event
of Default shall then exist. During the Extended Term, all of the terms and
conditions of this Lease shall remain in full force and effect, as the same
may be amended, supplemented or modified. Notwithstanding anything else
contained herein, if a majority of the common stock of Pledgor or a
substantial portion of its assets are sold to an entity other than Landlord,
the Lease will terminate at the end of the Initial Term.
3.3 RIGHT OF FIRST OFFER TO LEASE. Upon the expiration of the Lease Term
and provided that Tenant has exercised each Extended Term and no Event of
Default then exists beyond any applicable notice and cure period, Tenant
shall have a right of first offer ("Tenant's Right of First Offer to Lease")
to lease the Property upon the same terms and conditions as Landlord, at its
election, intends to offer to lease the Property to a third party. Tenant
shall be entitled to exercise Tenant's Right of First Offer to Lease 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 and only if
Landlord elects to lease the Property at the expiration of the Lease Term.
Not more than nine (9) months and not less than three (3) months prior to the
expiration of the Lease Term, Landlord shall, if applicable, give Tenant
written notice of its intent to lease the Property and shall indicate the
terms and conditions upon which Landlord intends to lease the Property.
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
prior to Tenant's acceptance Landlord shall retain the right to elect not to
lease the Property
13
by giving Tenant written notice thereof. If Tenant elects not to lease the
Property, then Landlord shall be free to lease the Property to a third party.
However, if the Base Rent for such proposed lease is reduced by five percent
(5%) or more as compared to the Base Rent included in the lease that Tenant
rejected, then Landlord shall again offer Tenant the right to acquire the
Property upon the same terms and conditions, provided that Tenant shall have
only fifteen (15) days to accept such offer.
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.
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 28.9 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 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 through and including the fourth (4th)
Adjustment Date, the 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 percent (200%) of the change in CPI from
the immediately preceding fiscal year (the "Base Rent Escalator"); provided
the April 1, 1998 increase shall be pro rated for the number of days in the
Lease Term in the first quarter of 1998 divided by 365 and multiplied by the
applicable Base Rent Escalator. In addition, if the Annual Base Rent is
increased as provided in Section 4.5, then the Base Rent Escalator shall
continue to apply to each of the five (5) years following such increase, with
the increase effective on the anniversary of the increase in Base Rent as
provided in Section 4.5 in lieu of increases on January of each year. In
addition to the Base Rent Escalator described above, the Annual Base Rent
will increase by
14
$9,750 for each of the first two (2) Fiscal Years beginning on the Adjustment
Date.
4.3 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 Golf 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 the Gross Golf
Revenue for that Fiscal Quarter (or shorter period, if applicable) is greater
than the Gross Golf Revenue for the same Fiscal Quarter (or shorter period,
if applicable) in the Base Year (and, following the Fiscal Quarter ending
March 31, on a year-to-date basis), 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 on a year-to-date cumulative basis for the Fiscal
Year (pro rated for any partial periods) and the limits set forth in the next
two sentences on a pro rated basis. The increase in Rent resulting from the
payment of Percentage Rent (together with any increase in Base Rent pursuant
to Section 4.2) payable, if any, during each of the first five (5) full
Fiscal Years of the Initial Term shall be limited to six percent (6%) of the
Rent payable for the prior Fiscal Year. Tenant shall receive a credit against
the payment of Percentage Rent in an amount equal to the increase in the Base
Rent over the Initial Base Rent.
4.4 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 Golf 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 Golf 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.
4.5 INCREASE IN BASE RENT FOLLOWING CONVERSION DATE. For the Fiscal Year
in which the Conversion Date occurs only as a result of the election by
Tenant to receive Owner's Shares in the Partnership as a Contingent Purchase
Price for the contribution of the Property, the Annual Base Rent shall be
increased, effective as of
15
the date the additional Owner's Shares are issued to the Transferor, to an
amount equal to the Adjusted Net Operating Income.
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 Golf 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.
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, Tenant will pay Landlord on
demand, as Additional Charges, a late charge equal to five percent (5%) 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
16
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 ALLOCATION OF REVENUES. In the event that individuals or groups
purchase for a single price items which are both included and excluded from
Gross Golf Revenue (E.G., green fees and dinner), then Tenant agrees that
revenues shall be allocated to Gross Golf Revenue in a reasonable manner
consistent with the historical allocation of such revenues.
4.11 LINE OF CREDIT. Tenant shall receive an additional payment at
Closing of $150,000, which shall be capitalized and become Rent under the
Lease.
ARTICLE 5
SECURITY DEPOSIT
5.1 PLEDGE OF PLEDGOR'S SHARES. On or prior to the Commencement Date,
Tenant shall cause the Pledge Agreement to be executed for the benefit of
Landlord.
5.2 OBLIGATION TO WITHHOLD DISTRIBUTIONS. Notwithstanding the above
provisions, if the Net Operating Income for the Property falls below the
coverage ratio set forth in Section 2(a) of EXHIBIT D-1 to the Pledge
Agreement, at any time following the release of any Pledged Shares (or
security deposit held by Landlord in lieu thereof), then Tenant shall
thereafter retain, and not make cash distributions (except as may be
necessary to pay any applicable taxes) to its shareholders, partners or
members, as applicable, until such time as Tenant has accumulated six (6)
months of Base Rent at the then current level. Cash distributions may be made
at such time as Tenant shall have again satisfied such coverage ratios for
two (2) consecutive Fiscal Years. Tenant shall provide Landlord with such
documentation, including Officer's Certificates and financial statements,
within forty-five (45) days after the end of each Fiscal Quarter as are
necessary to establish Tenant's compliance with the foregoing requirements.
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5.3 CROSS-COLLATERAL. The Pledged Shares shall also secure Tenant's or
Tenant's Affiliates obligations under each of the leases for the Other Leased
Properties and all collateral securing Tenant's or Tenant's Affiliates'
obligations under each of the leases related to the other Leased Properties
shall secure this Lease. Tenant agrees to execute amendments to existing
collateral documents with Landlord to effectuate such cross-collateralization.
5.4 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, 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 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.
5.5 COLLATERAL CONVERSION AND TERMINATION PAYMENT. At the end of the
Initial Term, if the average trade price for the common stock of Pledgor
during the previous one (1) year did not exceed $2.00 per share, Tenant will
convert the number of remaining Pledged Shares to Owner's Shares, cash or
other security to be approved by Landlord. On the Expiration Date, unless
each option for an Extended Term is exercised, Tenant shall pay to Landlord
the Termination Payment, if any, provided the maximum Termination Payment
shall equal the amounts in the Security Fund (as defined in the Pledge
Agreement) then held by Landlord and shall be payable solely from the
proceeds thereof. For purposes of calculating the Termination Payment, the
Pledged Shares shall have a value deemed to equal the average closing share
price of common stock of Pledgor for the five (5) day period prior to the
Expiration Date.
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 canceled 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
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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.
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.
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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, (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;
(b) the lawful or unlawful prohibition of, or restriction upon,
Tenant's use of the Property, or any portion thereof, the interference
with such use by any Person, or by reason of eviction by paramount
title;
(c) 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;
(d) any bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding up or other
proceedings affecting Landlord or any assignee or transferee of
Landlord; or
(e) 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.
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.
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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. 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
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 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 (A) fee simple title, except where the Property is held
under a ground lease, (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, (B) to Tenant's knowledge the Improvements conform to all
material Legal Requirements and all material Insurance Requirements, and (C)
all easements necessary or appropriate for the use or operation of the
Property have been obtained.
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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. 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"). 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; 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, (c) past practices of the Transferor, and (d)
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, in
Landlord's absolute
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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 may be prohibited by law or by the standard
form of fire insurance policies, or any other insurance policies required to
be carried hereunder, or fire underwriters regulations. 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 which would (i) violate or fail to comply
with 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 allow any
Hazardous Material to be located in, on or under the Property, or any
adjacent property, or incorporated in the Property or any improvements
thereon except in compliance with applicable law (including any Environmental
Laws). Tenant shall not allow the Property to be used as a landfill or a
waste disposal site, or a manufacturing, distribution or disposal facility
for any Hazardous Materials. Tenant shall neither suffer nor permit 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) is in material violation of any applicable Environmental Law.
9.3 MEMBERSHIP SALES. 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 follows:
(a) in accordance with Transferor's past practice, as reasonably
approved by Landlord, or
(b) membership plans and fees proposed by Tenant and approved by
Landlord, in Landlord's reasonable discretion.
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
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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
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 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 hereby represents
that, at the end of the Term, including all Extended Terms, it expects 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 further represents that, at the end of the Term, including all
Extended Terms, it expects 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.
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ARTICLE 10
HAZARDOUS MATERIALS
Except as specifically set forth in that certain Phase I Environmental
Site Assessment of the Property dated February 20, 1998, prepared by ETI
Corradino, Tenant hereby represents, warrants, and covenants to Landlord as
follows:
10.1 OPERATIONS. Except as set forth in the Agreement, and to the best
of knowledge of Tenant, the Property is presently operated in compliance in
all material respects with all Environmental Laws.
10.2 REMEDIATION. Except as set forth in the Agreement, and to the best
knowledge of Tenant, there are no Environmental Laws requiring any material
remediation, cleanup, repairs or construction (other than normal maintenance)
with respect to the Property.
10.3 VIOLATIONS: ORDERS. Except as set forth in the Agreement, and to
the best knowledge of Tenant, (a) no notices of any violation or alleged
violation of any Environmental Laws relating to the Property or its uses have
been received by either Tenant, or, to the best knowledge of Tenant, by any
prior owner, operator or occupant of the Property, and (b) there are no
writs, injunctions, decrees, orders or judgments outstanding, or any actions,
suits, claims, proceedings or investigations pending or threatened, relating
to the ownership, use, maintenance or operation of the Property.
10.4 PERMITS. Except as set forth in the Agreement, all material permits
and licenses required under any Environmental Laws in respect of the
operations of the Property have been obtained or are in the process of being
obtained, and Tenant shall be in compliance, in all material respects, with
the terms and conditions of such permits and licenses.
10.5 REPORTS. All material reports of environmental surveys, audits,
investigations and assessments relating to the Property in the possession or
control of Tenant, Transferor or their Affiliates are set forth or described
in the Agreement.
10.6 REMEDIATION. 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, but subject to the last sentence of Section 10.7,
carry out and complete any required investigation, removal, remediation,
repair, closure, detoxification,
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decontamination 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.
10.7 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, or (d) by reason of a breach of a representation
or warranty in Sections 10.1 through 10.5 of this Lease. Notwithstanding the
foregoing or any other provision of this Lease (including, without
limitation, Section 7.2, Section 10.9 and Article 23),Tenant shall not be
liable, or otherwise be required to indemnify Landlord or the Company or any
Affiliates of the Company for (i) any matters or events that arise after the
Commencement Date that are not caused by any act or omission on the part of
Tenant, or (ii) 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.
10.8 SURVIVAL OF INDEMNIFICATION OBLIGATIONS. Tenant's obligations
and/or liability under this Article 10 arising during the Term hereof shall
survive any termination of this Lease.
10.9 ENVIRONMENTAL VIOLATIONS AT EXPIRATION OR TERMINATION OF LEASE.
Notwithstanding any other provision of this Lease (except the last sentence
of Section 10.7), if, at a time when the Term would otherwise terminate or
expire, a violation of any Environmental Law has been asserted by Landlord
and has not been resolved in a manner reasonably satisfactory to Landlord, or
has been acknowledged by Tenant to exist or has been found to exist at the
Property or has been asserted by any governmental authority and
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Tenant's failure to have completed all action required to correct, abate or
remediate such a violation of any Environmental Law materially impairs the
leasability of the Property upon the expiration of the Term, then, at the
option of Landlord, the Term shall be automatically extended with respect to
the Property beyond the date of termination or expiration and this Lease
shall remain in full force and effect under the same terms and conditions
beyond such date with respect to the Property until the earlier to occur of
(i) the completion of all remedial action in accordance with applicable
Environmental Laws or (ii) 12 months beyond such expiration or Termination
date; PROVIDED, that Tenant may, upon any such extension of the Term,
terminate the Term by paying to Landlord such amount as is necessary in the
reasonable judgment of Landlord to complete or perform such remedial action.
ARTICLE 11
MAINTENANCE AND REPAIR
11.1 TENANT'S OBLIGATIONS. 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 Article 15, 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
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 12.7. Tenant will not take or omit to take any
action the taking or omission of which could reasonably be expected to impair
the value or the usefulness of the Property or any part thereof for its
Primary Intended Use.
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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).
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"). 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, such approval not to be
unreasonably withheld or delayed.
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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) 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:
(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. Landlord shall 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 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), and will not
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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.
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. 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 from time to time 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 reasonable
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:
(a) No Event of Default exists and is continuing;
(b) Tenant presents paid qualifying receipts for reimbursement,
or qualifying invoices for direct payment to the vendor;
(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.
12.5 RIGHTS IN TENANT IMPROVEMENTS. All Tenant Improvements shall be the
property of Landlord. 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.
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12.6 LANDLORD'S RIGHT TO AUDIT CALCULATION OF GROSS GOLF REVENUE.
Landlord, at its own expense except as provided hereinbelow, shall have the
right from time to time directly or through 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 Golf 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 Golf 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 Golf Revenue actually received by Tenant for any
Fiscal Year exceeds the Gross Golf Revenue reported by Tenant in the
Officer's Certificate by more than two percent (2%), 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 28. Landlord shall also have the
right to review and audit from time to time 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.
12.7 ANNUAL BUDGET. Not later than forty-five (45)days prior to the
commencement of each Fiscal Year, Tenant shall prepare and submit to Landlord
an operating budget (the"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 Golf Revenue
(including membership dues, daily use fees and other sources of Gross
Golf 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.
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(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 a dispute resolution committee composed
of three (3) members of the Advisory Association unaffiliated with Tenant and
two (2) members of the board of directors of the Company. Such committee
shall be responsible for resolving any such disagreement and the parties
agree that the determination of such dispute resolution committee shall be
binding on the parties. Pending the results of such resolution or the earlier
agreement of the parties, (i) if the Operating Budget has not been agreed
upon, the Property will be operated in a manner consistent with the prior
year's Operating Budget until a new Operating Budget is adopted, and (ii) if
the Capital Budget has not been agreed upon, no Capital Expenditures shall be
made unless the same are set forth in a previously approved Capital Budget or
are specifically required by Landlord or are otherwise required to comply
with Legal Requirements or Insurance Requirements. Tenant shall 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
32
relating to or reflecting the operation of the Property shall be kept either
at the Property or at Tenant's offices in Scottsdale, Arizona. 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, 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 Golf
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 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 or allow to
remain, and will promptly discharge at its expense any lien, encumbrance,
attachment, title retention agreement or claim upon the Property or any
attachment, levy, claim or encumbrance emanating from Tenant's actions or
negligence, not including, however:
33
(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 the responsibility of Landlord pursuant
to the provisions of Article 25.
13.2 ENCROACHMENTS AND OTHER TITLE MATTERS. Subject to Article 21 and
excepting any matters granted or created by Landlord after the Commencement
Date, if any of the Improvements shall, at any time, encroach upon any
property, street or right-of-way adjacent to the Property, or shall violate
the agreements or conditions contained in any lawful restrictive covenant or
other agreement affecting the Property, or any part thereof, or shall impair
the rights of others under any easement or right-of-way to which the Property
is subject, or the use of the Property is impaired, limited or interfered
with by reason of the exercise of the right of surface entry or any other
rights under a lease or reservation 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
34
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 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 there
from 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;
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(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 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, Tenant, and each Facility
Mortgagee, if any. Evidence of insurance shall be deposited with Landlord
and, if requested,
36
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 public liability insurance
with amounts not less than five million dollars ($5,000,000) per
occurrence and in the aggregate.
(c) FLOOD. Flood insurance (when the Property is located in
whole or in material part a designated floodplain 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 canceling 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. Tenant shall have the option to self-insure up to five
thousand dollars ($5,000) of the amount of insurance required in the
event state law permits such self-insurance, subject to the approval
of Landlord, in Landlord's sole and absolute discretion.
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
37
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.
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 XV 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 canceled. 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 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
38
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 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
$100,000, be paid to Landlord and held 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 liens shall have been filed;
39
(b) 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 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
40
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.
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
as reasonably determined by Landlord, 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 as provided in Section 21.2 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; 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.
41
15.12 RECONSTRUCTION NOT COVERED BY INSURANCE. If during the Term, the
Property is totally or materially destroyed from a risk not covered by the
insurance described in Article 15, whether or not such damage or destruction
renders 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. Tenant shall have the right to
use proceeds from the Capital Replacement Fund to perform such work, subject
to the conditions set forth in Section 12.4 hereof.
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.
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16.3 RESTORATION. If there is a partial taking of the Property and this
Lease remains in full force and effect pursuant 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, subject to the rights of the Facility Mortgagee,
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 no abatement of rent payable by
Tenant hereunder. 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.
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; PROVIDED, HOWEVER,
Tenant is only entitled to three (3) such notices per twelve (12)
month period and that such notice shall be in lieu of and not in
addition to any notice required under applicable law;
(b) if 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
43
diligence to cure the failure and diligently completes the curing thereof
within one hundred twenty (120) days of receipt of notice from Landlord of
the default; PROVIDED, HOWEVER, that such notice shall be in lieu of and
not in addition to any notice required under applicable law; PROVIDED
FURTHER, HOWEVER, that the cure period shall not extend beyond thirty (30)
days as otherwise provided by this Section 17.1(b) if the facts or
circumstances giving rise to the default are creating a further harm to
Landlord or the Property and Landlord makes a good faith determination
that Tenant is not undertaking remedial steps that Landlord would cause
to be taken if this lease were then to terminate;
(c) if Tenant shall:
(i) admit in writing its inability to pay its debts as they
become due,
(ii) file a petition in bankruptcy or a petition to take
advantage of any insolvency act,
(iii) make an assignment for the benefit of its creditors,
(iv) be unable to pay its debts as they mature,
(v) consent to the appointment of a receiver of itself or
of the whole or any substantial part of its property, or
(vi) file a petition or answer seeking reorganization or
arrangement under the Federal bankruptcy laws or any other
applicable law or statute of the United States of America or any
state thereof;
(d) if Tenant shall, on a petition in bankruptcy filed against
it, be adjudicated as bankrupt or a court of competent jurisdiction
shall enter an order or decree appointing, without the consent of
Tenant, a receiver of Tenant or of the whole or substantially all of
its property, or approving a petition filed against it seeking
reorganization or arrangement of Tenant under the federal bankruptcy
laws or any other applicable law or statute of the United States of
America or any state thereof, and such judgment, order or decree shall
not be vacated or set aside or stayed within sixty (60) days from the
date of the entry thereof;
44
(e) if Tenant shall be liquidated or dissolved, or shall begin
proceedings toward such liquidation or dissolution;
(f) if the estate or interest of Tenant in the property or any
part thereof shall be levied upon or attached in any proceeding and
the same shall not be vacated or discharged within the later of ninety
(90) days after commencement thereof or thirty (30) days after receipt
by Tenant of notice thereof from Landlord (unless Tenant shall be
contesting such lien or attachment in accordance with Article 14);
PROVIDED, HOWEVER, that such notice shall be in lieu of and not in
addition to any notice required under applicable law;
(g) if, except as a result of damage, destruction or a partial
or complete Condemnation or other Unavoidable delays, Tenant
voluntarily ceases operations on the property;
(h) 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
(i) an "Event of Default" (as defined in such lease)by Tenant or
any Affiliate of Tenant in any other lease by and between such party
and Landlord or any Affiliate of Landlord, or an "Event of Default"
under the Pledge Agreement;
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 (or
no notice for clauses (c), (d), (e), (f) and (g)) of such termination and
upon the expiration of the time fixed in such notice, 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 AND CLOSING 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. Additionally,
Tenant shall pay all Closing costs pursuant to Section 6.5 of the Purchase
Agreement which are the responsibility of Landlord (except for legal
expenses) and such costs shall be capitalized as Rent under the Lease.
Further, Landlord shall make a cash payment to the order of Tenant for
Tenant's acquisition costs. The amount of the payment shall be the greater
of $36,500 or 50 basis points of the purchase price, and such amount shall be
capitalized as Rent under the Lease.
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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 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
46
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 another 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.
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 maybe 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
47
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 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
48
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.
ARTICLE 21
RISK OF LOSS
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 inconsequence 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,
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.
ARTICLE 22
INDEMNIFICATION
22.1 TENANT'S INDEMNIFICATION OF LANDLORD. Except as otherwise provided
in Section 10.7 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 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;
49
(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;
(g) the negligence or alleged negligence of Landlord with respect to
the Property; or
(h) 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.
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 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
50
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. Tenant shall not, without the prior
written consent of Landlord, which consent Landlord may withhold in its sole
discretion, assign, mortgage, pledge, hypothecate, encumber or otherwise
transfer (except to an Affiliate of Tenant or a Permitted Assignee) 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.
23.2 SUBLEASES.
(a) PERMITTED SUBLEASES. Tenant shall not, without the prior written
consent of Landlord, which consent Landlord may withhold in its sole
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 sole 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;
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(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 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
52
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, Tenant shall not sublet all or any portion of
the Property or enter into any other agreement which has the effect of
reducing 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 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 RIGHT OF FIRST OFFER OF LANDLORD TO ACQUIRE LEASEHOLD. In addition
to Landlord's rights in Section 23.1, Landlord or its designee shall have,
for a period of sixty (60) days following receipt of the written notice of
Tenant's intent to assign its interest in the Lease to a third party
unaffiliated with Tenant (and in which management of the Tenant shall have no
continuing management or ownership interest), the right to elect to purchase
the leasehold interest on the terms and conditions at which Tenant proposes
to sell or assign its interest. If landlord or its designee elects not to
purchase such interest of Tenant, then
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Tenant shall be free to sell its interest to a third party, subject to
Landlord's prior written consent as provided in Section 23.1. However, if (i)
the price at which Tenant intends to sell its interest is reduced by five
percent (5%) or more, or (ii) the assignment to the third party is not
completed within one hundred eighty (180) days of Landlord's receipt of
written notice of Tenant's intention to assign its interest in the Lease,
then Tenant shall again offer Landlord the right to acquire its interest;
provided, however, that in the case of a change in price, Landlord shall have
only fifteen (15) days to accept such revised offer.
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 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
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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 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.
ARTICLE 24
OFFICER'S CERTIFICATES AND OTHER STATEMENTS
24.1 OFFICER'S CERTIFICATES. At any time, and from time to time upon
Tenant's receipt of not less than ten (10) days' prior written request by
Landlord, Tenant will furnish to Landlord an Officer's Certificate certifying
that:
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(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);
(b) the dates to which the Rent has been paid;
(c) whether or not to the best knowledge of Tenant, 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 may have knowledge;
(d) that, except as otherwise specified, there are no proceedings
pending or, to the knowledge of the signatory, threatened, against
Tenant before or by any court or administrative agency which, if
adversely decided, would materially and adversely affect the financial
condition and operations of Tenant; and
(e) responding to such other questions or statements of fact
as Landlord shall reasonably request.
Tenant's failure to deliver such Officer's Certificate within such time
shall constitute an acknowledgment by Tenant that this Lease is unmodified
and in full force and effect except as may be represented to the contrary by
Landlord, Landlord 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
Landlord and any prospective lender or purchaser.
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.
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
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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. 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, 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
26.1 RIGHT OF FIRST OFFER TO PURCHASE. If Landlord intends to sell the
Property during the Lease Term, and provided no Event of Default then exists,
Tenant shall have a right of first offer to purchase the Property ("Tenant's
Right of First Offer to Purchase") on the terms and conditions at which
Landlord proposes to sell the Property to a third party. Landlord shall give
Tenant written notice of its intent to sell and shall indicate the terms and
conditions (including the sale price) upon which Landlord intends to sell the
Property to a third party. Tenant shall thereafter have sixty (60) days to
elect in writing to purchase the Property and execute a Purchase and Sale
Agreement with respect thereto and shall have an additional fifty (50) days
to close on the acquisition of the Property on the terms and conditions set
forth in the notice provided by Landlord to Tenant; provided that prior to
the execution of a binding purchase and sale agreement, Landlord shall retain
the right to elect not to sell the Property. If Tenant
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does not elect to purchase the Property, then Landlord shall be free to sell
the property to a third party. However, if the price at which Landlord
intends to sell the Property to a third party is less than 95% of the price
set forth in the notice provided by Landlord to Tenant, then Landlord shall
again offer Tenant the right to acquire the Property upon the same terms and
conditions, provided that Tenant shall have only thirty (30) days thereafter
to complete the acquisition at such price, terms and conditions.
26.2 CONVEYANCE BY LANDLORD. If Landlord shall convey the Property in
accordance with the terms hereof 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 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. All
such future liabilities and obligations shall thereupon be binding upon the
new owner.
ARTICLE 27
ARBITRATION
27.1 ARBITRATION. In each case specified in this Lease in which it shall
become necessary to resort to arbitration, such arbitration shall be
determined as provided in this Section 27.1. The party desiring such
arbitration shall give notice to that effect to the other party, and an
arbitrator shall be selected by mutual agreement of the parties, or if they
cannot agree within thirty (30) days of such notice, by appointment made by
the American Arbitration Association ("AAA") from among the members of its
panels who are qualified and who have experience in resolving matters of a
nature similar to the matter to be resolved by arbitration.
27.2 ARBITRATION PROCEDURES. In any arbitration commenced pursuant to
Section 27.1 a single arbitrator shall be designated and shall resolve the
dispute. The arbitrator's decision shall be binding on all parties and shall
not be subject to further review or appeal except as otherwise allowed by
applicable law. Upon the failure of either party (the "non-complying party")
to comply with his decision, the arbitrator shall be empowered, at the
request of the other party, to order such compliance by the non-complying
party and to supervise or arrange for the supervision of the non-complying
party. To the maximum extent practicable, the arbitrator and the parties, and
the AAA if applicable, shall take any action necessary to insure that the
arbitration shall be concluded within ninety (90) days of the filing of such
dispute. The fees and expenses of the arbitrator shall be shared equally by
Landlord and Tenant. Unless otherwise agreed in writing by the parties or
required by the arbitrator or AAA, if applicable, arbitration proceedings
hereunder shall be conducted in the State. Notwithstanding formal rules of
evidence, each party may submit such evidence as each party deems appropriate
to support its position and the arbitrator shall have access to and right to
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examine all books and records of Landlord and Tenant regarding the Property
during the arbitration.
ARTICLE 28
MISCELLANEOUS
28.1 LANDLORD'S RIGHT TO INSPECT. 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 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
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. In no event shall any breach by Landlord permit Tenant to terminate
this Lease or permit Tenant to offset any Rent due and owing hereunder or
otherwise excuse Tenant from any of its obligations hereunder.
28.3 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.
28.4 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.
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28.5 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.
28.6 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.
28.7 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 created hereby or any interest in this Lease or such
leasehold estate and (b) the fee estate in the Property.
28.8 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.
28.9 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
If to Tenant: Granite Golf Group, Inc.
15170 N. Hayden Road, Suite 106
Scottsdale, AZ 85260-2512
Attention: T. Marney Edwards
With a Copy to: Mr. Mark Nesvig
Fennemore Craig
3003 N. Central Avenue
Phoenix, AZ 85012-2913
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28.10 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.
28.11 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.
28.12 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.
28.13 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.
28.14 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.
28.15 TITLES. The headings in this Lease are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
28.16 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).
28.17 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.
28.18 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.
28.19 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
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give any third Person any right of subrogation or action against any party to
this Lease.
28.19 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 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.
28.20 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.
28.21 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.
SIGNATURES ON FOLLOWING PAGE
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LANDLORD: 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
------------------------------
Name: W. Bradley Blair, II
Title: President and CEO
TENANT: GRANITE RIDGE, INC.
a Kentucky corporation
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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