EXHIBIT 10.101
LEASE AGREEMENT
This Lease is made in duplicate this 12th day of September, 1997, by and
between Grand Summit Resort Properties, Inc., a Maine corporation with its
principal place of business in the Town of Newry, Maine, hereinafter referred to
as "LESSOR" and Sunday River, Ltd, a Maine corporation with its offices in
Newry, Maine, hereinafter referred to as "LESSEE".
For the consideration hereinafter set forth and reserved, LESSOR has agreed
to demise and let, and hereby does demise and let to LESSEE, and LESSEE has
agreed to take, and hereby does take from LESSOR, certain lands and Premises
situated in the Town of Newry, County of Oxford and State of Maine, described as
follows:
The commercial condominium units at the Jordan Grand Summit Resort
Properties, Inc. Condominium at Jordan Bowl, to be located in Newry,
Maine, as more particularly described in Exhibit "A" attached hereto
and made a part hereof, hereinafter the "Premises".
TO HAVE AND TO HOLD the Premises with all the privileges and appurtenances
thereof, to LESSEE subject to the following terms and conditions:
1. TERM AND RENT. This Lease shall be in effect for a term of five
years, beginning on the 1st day of December, 1997 and ending on the 30th day of
November, 2002. The rent due hereunder shall be paid as follows:
An amount equal to Positive EBITDA from operation of the Premises, less
15%. For purposes of this Lease, Positive EBITDA shall mean for each
fiscal quarter assuming a fiscal year end of July 31. Net income or loss
resulting from the operations of the Premises by the LESSEE determined
independently for those operations which shall be accounted for separately
from the LESSEE'S other operations in accordance with generally accepted
accounting principals without giving effect to extraordinary gains and
losses from sales, exchanges or other dispositions of property not in the
ordinary course of business, and nonrecurring items, plus, to the extent
deducted in calculating net income, the sum of, without duplication, (i)
depreciation expense, (ii) amortization expense, (iii) consolidated
interest expense plus the non-cash portion of consolidated interest expense
on debt related to such Premises, (iv) income tax expense and (v) other
non-cash items. The foregoing adjustments to net income shall be made
solely with respect to operations at the Premises, which, in accordance
with the provisions of this Lease Agreement, shall be accounted for
separately from Lessee's other operations.
The LESSEE does hereby covenant with the LESSOR that the LESSEE, during the
term of said Lease and for such further time as it or any other person or
persons claiming under it shall hold the said Premises or any part thereof, will
pay unto the LESSOR the said rent at times and in the manner aforesaid.
LATE CHARGE: At the option of the LESSOR, the LESSEE agrees and shall
pay a "late charge" of two percent (2%) of any monthly rental installment
when paid more than (7) days after the due date thereof. Said late charge
shall be added to the next succeeding month's regular rent.
2. PERMITTED USE. LESSEE shall use and occupy the Premises for any
purpose permitted under applicable zoning and land use regulations.
The Premises shall not be used for any illegal purpose, nor in violation of
any valid regulation of any governmental body, nor in any manner to create any
nuisance or trespass, nor in any manner to cause cancellation of the insurance
on the Premises or on the building.
3. ACCEPTANCE OF PREMISES: ALTERATIONS OR ADDITIONS. The LESSEE, by
taking possession of the Premises, shall accept and shall be held to have
accepted the same as suitable for the use intended by the LESSEE. The LESSOR
shall not be required after possession of the Premises has been delivered to the
LESSEE, to make any structural repairs or improvements to the Premises, except
those outlined herein. The LESSEE shall not make alterations or additions,
without written permission of the LESSOR, which shall not be unreasonably
withheld, however, such alterations shall be at the sole cost and expense of the
LESSEE. In connection therewith, LESSEE shall comply with all applicable rules,
regulations, laws or orders of any governmental authority or any rules of
LESSOR'S insurance carrier. LESSEE will pay any and all expenses necessary to
bring or keep the Premises in compliance with federal, state or local laws,
rules, ordinances and building codes.
LESSOR specifically covenants and agrees to be responsible for all exterior
maintenance and repair limited to structural repairs, replacement or repair of
plumbing, electrical or heating systems, site improvements such as sewer and
water, roof, exterior walls and foundation, on the subject Premises. LESSOR
shall have the responsibility of exterior painting which obligation shall be no
more than once every eight (8) years. Exterior painting shall utilize a color
using the current decorating scheme or any other color agreed upon between
LESSOR and LESSEE provided, however, that color shall be in conformity with all
local zoning regulations.
4. DUTY TO KEEP PREMISES IN GOOD ORDER. The LESSEE hereby covenants and
agrees to keep the interior Premises in as good order, repair and conditions as
the same area at the commencement of the term thereof, or may be put in
thereafter, damage by fire or unavoidable casualty and reasonable wear and tear
excepted; and at the termination hereof, to peaceably yield up said Premises and
all additions, alterations and improvements thereto, in such good order and
repair and conditions, leaving the premise clean, neat and tenantable.
5. MAINTENANCE. LESSEE shall, at their own expense, keep and maintain
the interior surfaces of the Premises in good order and repair and shall not
damage or deface said Leased Premises. LESSEE shall be obligated to maintain
the exterior and common areas of said Premises including the entry ways.
Parking areas, hallways, and walkways. It shall be the
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obligation of LESSEE to make any repairs to the building including, windows,
interior glass and walls, elevator system, alarm system, lighting, carpeting and
flooring. Said repairs and maintenance shall also include, but not limited to,
repairs, cleaning and snow and ice removal. LESSEE shall maintain said Premises
and otherwise operate said Premises in conformity in all material respects, with
all existing land use permits currently governing the Leased Premises.
6. CAPITAL IMPROVEMENTS AND REPAIRS BY LESSEE. Subject to the other
provisions of this Lease concerning repairs, improvements, alterations or
additions required to be made by the LESSEE or LESSOR, the LESSEE shall yield up
the Premises to LESSOR at the expiration of this Lease in the same condition as
when it was received by LESSEE, normal wear and tear excepted and excepting any
improvements made by LESSEE.
7. UTILITIES. LESSEE shall be responsible to supply and pay for all
utilities to the subject Premises including, but not limited to, heat,
electricity, garbage removal, and snow plowing. LESSEE shall be responsible for
its own telephone usage and/or other communication systems utilized at the
Premises. Damage caused by a failure to provide adequate heat to the Premises
shall be the sole responsibility of LESSEE who shall indemnify and hold LESSOR
harmless therefrom.
8. PERSONAL PROPERTY TAXES. LESSEE shall be responsible for any and all
personal property taxes levied upon the Premises due to inventory, equipment or
machinery maintained upon the Premises by LESSEE.
9. REAL ESTATE TAXES. LESSEE shall be solely responsible for payment
when due of real estate taxes assessed by the Town of Newry in reference to the
Leased Premises and tax increases as may be levied by the Town of Newry.
10. SIGNS. LESSEE shall conform with the Town of Newry Zoning Regulations
regarding signs, displays, advertising devices or other things upon or about the
exterior Premises of the building.
11. PARKING. LESSEE shall be entitled to all parking associated with the
Premises.
12. FIXTURES AND EQUIPMENT. Also included in this Lease are all fixtures
and equipment currently in place at said Premises. Said inventory and fixtures
include, but are not limited to, counters, display racks, security system,
storage shelving, mirrors and soft good bins. LESSEE shall be obligated to
maintain said fixtures or their reasonable equivalent and shall turn over to
LESSOR said fixtures upon expiration of this Lease which shall be in good,
workable condition, normal wear and tear excepted.
13. INSURANCE.
(a) LIABILITY INSURANCE. LESSEE shall maintain at LESSEE'S expense,
public liability insurance covering the Premises and the use and occupancy
of same for the mutual benefit of LESSOR and LESSEE naming LESSOR as an
additional named
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insured and combined single limits coverage of not less than $3,000,000 for
death, personal injury, or property damage. Said insurance shall be
written on a comprehensive general liability form and include the broad
form general liability endorsement. A copy of the declaration page of said
insurance shall be provided to LESSOR and LESSOR shall specifically require
notification by the insurer to LESSOR of any failure to pay or other breach
of the terms of said insurance. A copy of said insurance declaration sheet
or other insurance documents required by LESSOR'S mortgage bank shall be
provided by LESSEE or its agent to said bank.
(b) HAZARD INSURANCE. LESSEE shall protect the Premises including the
exterior grounds, parking area and improved areas with casualty insurance
for the benefit of LESSOR including loss against damage by fire, wind,
storm, earthquake and similar hazards. Such policy of insurance shall be
for the full insurable replacement value of the building and improvements
contained thereon. A copy of the declaration sheet of said policy shall
likewise be provided by LESSEE'S insurance to LESSOR's naming the LESSOR as
an additional insured party and identifying LESSOR as a party to be
notified in the event of any insurance laps or any claim made thereon.
(c) The failure of LESSEE to maintain and pay for said insurance when due
or otherwise comply with the terms of said insurance policy shall
constitute a material breach of this Lease.
(d) A copy of said insurance policy(ies) obtained and maintained by LESSEE
shall be provided by LESSEE to LESSOR upon LESSOR'S request.
(e) LESSEE shall likewise maintain similar casualty insurance to cover the
replacement cost of all inventory owned by LESSEE in the subject Premises.
LESSEE shall be named insured in regard to said inventory, however, LESSOR
shall also be named as an additional insured party.
Said insurance(s) procured by LESSEE as herein required, shall be issued by
a company licensed to do business in the State of Maine and shall contain
endorsements that:
i. such insurance(s) may not be canceled or amended with respect to
LESSOR by the insurance company without notice to the LESSOR;
ii. LESSOR shall be named as an additional insured with respect to
any and all public liability; and
iii. LESSEE shall be solely responsible for payment or premiums for
such insurance.
14. DESTRUCTION AND CONDEMNATION OF PREMISES. In the event that said
Premises, or any substantial part of the building to which they are a part,
shall be destroyed or damaged by fire or other unavoidable casualty, or by the
action of the Town or other
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authorities, after the execution thereof, and before the expiration of said
term, and the Leased Premises have not been restored to their original condition
within ninety (90) days of said taking, destruction or action, then this Lease
and the said terms shall terminate at the election of either party. A
"substantial part" means a sufficient portion of the Premises such that use of
the Premises for its then current purposes is materially impaired and cannot be
restored. LESSEE and LESSOR shall both be obligated to restore the Premises as
nearly as possible to pre-condemnation condition and apply the net proceeds of
any applicable insurance to that restoration. Neither LESSOR nor LESSEE shall
be obligated to expend in excess of net insurance proceeds to restoration,
although each shall have the option to do so without any changes in base rent or
additional rent hereunder, except as provided immediately below. A "just
proportion" of the rent hereinafter reserved, according to the nature or the
extent of the injury sustained by the demised Premises, shall be immediately
suspended and abated while the demised Premises are being restored. The term
"just proportion" as used herein shall be a fraction, the numerator of which
shall be the total retail revenues produced by the Premises destroyed or
rendered unusable and the denominator of which shall be the total revenues
produced by the Leased Premises as expressed as a percentage. In the event of a
dispute regarding this provision, the parties shall arbitrate the issues.
15. BREACH. Except for monetary default by LESSEE, which LESSEE shall
have no right to cure, if the LESSEE should neglect or fail to perform or
observe any of the covenants contained herein which are required of LESSEE, and
if such failure is not cured within thirty (30) days after written notice by
LESSOR, or if such breach cannot by its nature be cured within 30 days, then
LESSEE shall commence to cure such default and shall pursue such cure to
conclusion within a reasonable period in light of the nature of the default, or
if the LESSEE shall be declared bankrupt or insolvent accordance to the law,
reorganized under the Bankruptcy Act, or if any assignment shall be made of its
property for the benefit of creditors then and in any time thereafter, and
without demand or notice, LESSOR may enter into and upon the same Premises or
any part thereof, and repossess the same as of their former estate and expel the
LESSEE and those claiming through or under it and remove their effects by proper
legal process, without being deemed guilty of any manner of trespass and without
prejudice to any remedies which might otherwise be used for arrears of rent or
preceding breach of covenant and upon entry of, as aforesaid, this Lease shall
terminate, and the LESSEE covenant that in case of such termination it will
indemnify the LESSOR against all loss of rent and other payment which they may
incur by reason of such termination during the residue of the time first above
specified for the duration of the said term. The LESSOR shall be obligated to
take reasonable steps to obtain other tenants, the rents from whom shall be set
off against rents due from LESSEE.
16. ASSIGNMENT OR SUBLEASE. This Lease shall not be assigned nor can the
Premises be sublet prior to written consent of the LESSOR, which consent shall
not be unreasonable withheld or delayed. An assignment to any corporation or
entity which is affiliated with or under management and control of LESSEE is
hereby expressly permitted by LESSOR, however, LESSOR shall remain primarily
liable upon the Lease unless expressly released in writing by LESSOR. LESSOR
agrees that LESSEE may collaterally assign this Lease to its senior lenders and
LESSOR shall execute and deliver such consents to assignment as may be required
by LESSEE'S senior lending institutions.
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17. COMPLIANCE WITH LAW AND LIEN PREVENTION. LESSEE agrees that it shall
promptly comply at its own expense with all requirements of any governmental
authority having competent jurisdiction which requirements are made necessary by
reason of LESSEE'S occupancy of said Premises. Further, LESSEE agrees to pay
all contractors and subcontractors for any improvements or additions to the
Leased Premises contracted for by the LESSEE with LESSOR'S consent as required
hereinabove. LESSOR shall include similar provision in Leases issued to other
tenants.
18. SUBORDINATION. LESSEE agrees, at the request of the LESSOR, to
subordinate this Lease to any mortgages placed upon the Premises, to agree not
to prepay rent more than ten (10) days in advance, except as otherwise agreed by
the parties in writing, provided that the holder of such mortgage or mortgagees
enter into any agreement with LESSEE by the terms of which such party agrees not
to disturb the LESSEE in its possession of the Premises so long as LESSEE
continues to perform its obligations hereunder, and in the event of acquisition
of title by said party through foreclosure proceedings or otherwise, to accept
LESSEE as LESSEE of the Premises under terms and conditions of this Lease to
perform LESSOR'S obligations hereunder (but only while owner of the Premises),
and LESSEE agrees to recognize such party or any other person acquiring title to
the Premises as LESSOR. LESSEE and LESSOR agree to execute and deliver any
appropriate instruments necessary to carry out the foregoing provisions. LESSEE
shall have the right upon receiving a judgment of foreclosure upon the Premises
to at LESSEE'S option and upon thirty (30) days notice to terminate this Lease.
19. INDEMNITY. LESSEE will indemnify and hold the LESSOR harmless against
tall claims and demands for loss or damage, including property damage, normal
wear and tear excepted, personal injury and wrongful death, arising out of or
caused by the negligent act or omissions LESSEE will reimburse LESSOR for their
costs, expenses, judgments, executions or claims in connection with the defense
of any such actions.
LESSEE shall give prompt notice to the LESSOR in case of fire or accident
in the demised Premises or in the building of which the demised Premises are a
part of or defects therein or in any fixtures or equipment.
20. ATTORNEYS FEES. If LESSEE defaults, fails to pay rent or breaches any
of the terms herein and damages are collected through any attorney-at-law,
LESSEE agrees to pay all reasonable attorneys fees and related costs of
collection. Likewise, a breach by LESSOR shall result in LESSOR being
responsible for reasonable attorneys fees and related costs relating to
remedying such breach,
21. RECORD. LESSOR and LESSEE agree that a Memorandum of Lease shall be
recorded. LESSOR and LESSEE shall enter into an agreement in recordable form,
setting forth actual commencement and termination dates of this Lease. Said
Memorandum is attached hereto and made a part hereof as Exhibit "B".
22. INTENT. The parties hereto intend that the terms and conditions of
this Lease are
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for commercial purposes.
23. NOTICE. Any notice required to be given by the terms hereof shall be
deemed duly served if sent by certified mail, return receipt request, through
the United States Postal Service, after the term of this Lease has commenced or
to the LESSOR at the said Premises, or to either party at such place as may from
time to time be established in the following manner:
Xxxxxx Xxxx
Sunday River, Ltd.
X.X. Xxx 000
Xxxxxx Xxxxx Xxxx
Xxxxx, Xxxxx 00000
Xxxx Xxxxxx
Grand Summit Resort Properties, Inc.
X.X. Xxx 000
Xxxxxx, XX 00000
24. SEVERALTY. If any provision of this Lease or its application to any
person or circumstances shall to any extent be invalid or unenforceable, the
remainder of this Lease or the application of such provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby and each provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
25. RIGHT OF FIRST REFUSAL. In consideration of value recited herein,
LESSOR grants to LESSEE a Right of First Refusal to purchase the Leased Premises
under the same terms and conditions contained in any bona fide offer to purchase
received by LESSOR subject to the following terms and conditions:
(a) LESSOR shall notify LESSEE of the terms of any bona fide offer to
purchase the subject Premises received by LESSOR which LESSOR is prepared
to accept. Said notice shall be in writing and mailed certified mail,
return receipt requested, to LESSEE'S business Premises located at Newry,
Maine or to any other address given in writing by LESSEE for the purpose of
notice.
(b) Upon receipt of said notice of offer, LESSEE shall have thirty (30)
days to notify LESSOR of its intent to exercise its right of first refusal.
Said thirty day period shall run from midnight of the date of delivery of
said notice until midnight of the thirtieth (30th) day thereafter.
(c) Said responsive notice by LESSEE shall be mailed certified mail,
return receipt requested, to LESSOR'S principal place of business in Newry,
Maine or such other address as directed in writing by LESSOR.
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(d) LESSEE shall have forty-five (45) days from receipt by LESSEE under
Paragraph 25(a) of said notice to enter into a binding written contract for
the purchase of said Leased Premises, the terms of which shall correspond
to those contained in the bona fide offer received by LESSOR.
(e) LESSEE shall have sixty (60) days from the execution of said written
contract, under Paragraph 25(d) to close the purchase and meet the terms of
said contract.
(f) The right of first refusal contained herein shall expire upon the
expiration of this Lease or any renewal thereof. It shall be contained in
the Memorandum of Lease recorded in connection herewith.
Dated this 12th day of September, 1997.
IN PRESENCE OF: GRAND SUMMIT RESORT
PROPERTIES, INC.
/s/ Xxxxx X. Xxxxx /s/ Xxxx X. Xxxxxx
------------------------------ ------------------------------
Witness By: Xxxx X. Xxxxxx
Its: Vice President
/s/ Xxxxxxx Xxxxx
------------------------------
Witness
SUNDAY RIVER, LTD.
/s/ [Illegible] /s/ Xxxxxxxxxxx X. Xxxxxx
------------------------------ -----------------------------------
Witness By: Xxxxxxxxxxx X. Xxxxxx
Its: Chief Administrative Officer
/s/ Xxxxxxxx X. Xxxxx
------------------------------
Witness
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STATE OF MAINE
OXFORD COUNTY, ss
At Newry, Maine, this 12th day of September, 1997, personally appeared Xxxx
Xxxxxx, Vice President and duly authorized agent of Grand Summit Resort
Properties, Inc. and acknowledged this instrument by him/her, sealed and
subscribed to be his/her free act and deed and the free act and deed of Grand
Summit Resort Properties, Inc.
Before me,
/s/ Xxxxxxx X. X'Xxxxxxxxx
-----------------------------------
Attorney at Law
Xxxxxxx X. X'Xxxxxxxxx
STATE OF MAINE
OXFORD COUNTY, ss
At Newry, Maine, this 12th day of September, 1997, personally appeared
Xxxxx Xxxxxx, Chief Admin. Officer and duly authorized agent of Sunday River,
Ltd. and acknowledged this instrument by him/her, sealed and subscribed to be
his/her free act and deed and the free act and deed of Sunday River, Ltd.
Before me,
/s/ Xxxxxxx X. X'Xxxxxxxxx
-----------------------------------
Attorney at Law
Xxxxxxx X. X'Xxxxxxxxx
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EXHIBIT A
Grand Summit Hotel at Jordan Bowl
Commercial Lease Area
SQUARE FEET
Administration 1,777
Real Estate 962
Business Office 231
Restaurant 3,534
Slopeside Restaurant 4,042
Health Club 4,046
Arcade 520
Retail Shops 4,850
Ballroom 2,995
Conference Rooms 2,758
Kitchen Space 5,501
Day Care 989
Ski Check 469
Sales Office 1,710
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33,884
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