MYSTIC CREEK GOLF CLUB
CITY OF MILFORD
COUNTY OF OAKLAND
MICHIGAN
L E A S E
GOLF TRUST OF AMERICA, L.P.,
A DELAWARE LIMITED PARTNERSHIP
LANDLORD
AND
MYSTIC CREEK GOLF CLUB, LIMITED PARTNERSHIP,
A MICHIGAN LIMITED PARTNERSHIP,
TENANT
DATED AS OF JANUARY 16, 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. . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 3
TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.1 Initial Term . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.2 Extension Options. . . . . . . . . . . . . . . . . . . . . . . 14
3.3 Right of First Offer to Lease. . . . . . . . . . . . . . . . . 14
ARTICLE 4
RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.1 Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.2 Increase in Initial Base Rent. . . . . . . . . . . . . . . . . 15
4.3 Percentage Rent. . . . . . . . . . . . . . . . . . . . . . . . 16
4.4 Annual Reconciliation of Percentage Rent . . . . . . . . . . . 16
4.5 Increase in Base Rent Following Conversion Date. . . . . . . . 17
4.6 Record-keeping . . . . . . . . . . . . . . . . . . . . . . . . 17
4.7 Additional Charges . . . . . . . . . . . . . . . . . . . . . . 17
4.8 Late Payment of Rent . . . . . . . . . . . . . . . . . . . . . 17
4.9 Net Lease; Capital Replacement Reserve . . . . . . . . . . . . 18
4.10 Allocation of Revenues . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 5
SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.1 Pledge of Owner's Shares . . . . . . . . . . . . . . . . . . . 19
5.2 Obligation to Withhold Distributions . . . . . . . . . . . . . 19
5.3 Cross-Collateral . . . . . . . . . . . . . . . . . . . . . . . 19
5.4 Landlord's Lien. . . . . . . . . . . . . . . . . . . . . . . . 19
5.5 Termination Payment. . . . . . . . . . . . . . . . . . . . . . 19
5.6 Use of Second Cash Withhold Amount . . . . . . . . . . . . . . 20
(i)
ARTICLE 6
IMPOSITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.1 Payment of Impositions . . . . . . . . . . . . . . . . . . . . 20
6.2 Information and Reporting. . . . . . . . . . . . . . . . . . . 21
6.3 Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.4 Refunds. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.5 Utility Charges. . . . . . . . . . . . . . . . . . . . . . . . 21
6.6 Assessment Districts . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 7
TENANT WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.1 No Termination, Abatement, Etc . . . . . . . . . . . . . . . . 22
7.2 Condition of the Property. . . . . . . . . . . . . . . . . . . 23
ARTICLE 8
OWNERSHIP OF TANGIBLE PERSONAL PROPERTY. . . . . . . . . . . . . . . . . . 24
8.1 Property . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.2 Tenant's Personal Property . . . . . . . . . . . . . . . . . . 24
8.3 Tenant's Obligations . . . . . . . . . . . . . . . . . . . . . 25
8.4 Landlord's Waivers . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 9
USE OF PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.1 Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.2 Specific Prohibited Uses . . . . . . . . . . . . . . . . . . . 25
9.3 Membership Sales . . . . . . . . . . . . . . . . . . . . . . . 26
9.4 Landlord to Grant Easements, Etc . . . . . . . . . . . . . . . 26
9.5 Tenant's Additional Covenants. . . . . . . . . . . . . . . . . 26
9.6 Valuation of Remainder Interest in Lease . . . . . . . . . . . 26
ARTICLE 10
HAZARDOUS MATERIALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.1 Operations . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.2 Remediation. . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.3 Violations; Orders . . . . . . . . . . . . . . . . . . . . . . 27
10.4 Permits. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.5 Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.6 Remediation. . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.7 Tenant's Indemnification of Landlord . . . . . . . . . . . . . 28
10.8 Survival of Indemnification Obligations. . . . . . . . . . . . 29
10.9 Environmental Violations at Expiration
or Termination of Lease . . . . . . . . . . . . . . . . . . 29
(ii)
ARTICLE 11
MAINTENANCE AND REPAIR . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.1 Tenant's Obligations . . . . . . . . . . . . . . . . . . . . . 29
11.2 Waiver of Statutory Obligations. . . . . . . . . . . . . . . . 30
11.3 Mechanic's Liens . . . . . . . . . . . . . . . . . . . . . . . 30
11.4 Surrender of Property. . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 12
TENANT IMPROVEMENTS; SUBMITTAL OF BUDGETS; FINANCIAL STATEMENTS. . . . . . 31
12.1 Tenant's Right to Construct. . . . . . . . . . . . . . . . . . 31
12.2 Scope of Right . . . . . . . . . . . . . . . . . . . . . . . . 32
12.3 Cooperation of Landlord. . . . . . . . . . . . . . . . . . . . 32
12.4 Capital Replacement Fund . . . . . . . . . . . . . . . . . . . 32
12.5 Rights in Tenant Improvements. . . . . . . . . . . . . . . . . 33
12.6 Landlord's Right to Audit Calculation
of Gross Golf Revenue . . . . . . . . . . . . . . . . . . . 33
12.7 Annual Budget. . . . . . . . . . . . . . . . . . . . . . . . . 34
12.8 Financial Statements . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 13
LIENS, ENCROACHMENTS AND OTHER TITLE MATTERS . . . . . . . . . . . . . . . 36
13.1 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
13.2 Encroachments and Other Title Matters. . . . . . . . . . . . . 37
ARTICLE 14
PERMITTED CONTESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
14.1 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . 38
14.2 Indemnification of Landlord. . . . . . . . . . . . . . . . . . 39
ARTICLE 15
INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
15.1 General Insurance Requirements . . . . . . . . . . . . . . . . 39
15.2 Other Insurance. . . . . . . . . . . . . . . . . . . . . . . . 41
15.3 Replacement Cost . . . . . . . . . . . . . . . . . . . . . . . 41
15.4 Waiver of Subrogation. . . . . . . . . . . . . . . . . . . . . 41
15.5 Form Satisfactory, Etc . . . . . . . . . . . . . . . . . . . . 41
15.6 Change in Limits . . . . . . . . . . . . . . . . . . . . . . . 42
15.7 Blanket Policy . . . . . . . . . . . . . . . . . . . . . . . . 42
15.8 Insurance Proceeds . . . . . . . . . . . . . . . . . . . . . . 42
15.9 Disbursement of Proceeds . . . . . . . . . . . . . . . . . . . 43
15.10 Excess Proceeds, Deficiency of Proceeds. . . . . . . . . . . . 44
15.11 Reconstruction Covered by Insurance. . . . . . . . . . . . . . 44
15.12 Reconstruction Not Covered by Insurance. . . . . . . . . . . . 45
15.13 No Abatement of Rent . . . . . . . . . . . . . . . . . . . . . 45
15.14 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
15.15 Damage Near End of Term. . . . . . . . . . . . . . . . . . . . 45
(iii)
ARTICLE 16
CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
16.1 Total Taking . . . . . . . . . . . . . . . . . . . . . . . . . 46
16.2 Partial Taking . . . . . . . . . . . . . . . . . . . . . . . . 46
16.3 Restoration. . . . . . . . . . . . . . . . . . . . . . . . . . 46
16.4 Award-Distribution . . . . . . . . . . . . . . . . . . . . . . 47
16.5 Temporary Taking . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE 17
EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
17.1 Events of Default. . . . . . . . . . . . . . . . . . . . . . . 47
17.2 Payment of Costs . . . . . . . . . . . . . . . . . . . . . . . 49
17.3 Certain Remedies . . . . . . . . . . . . . . . . . . . . . . . 49
17.4 Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
17.5 Additional Remedies. . . . . . . . . . . . . . . . . . . . . . 51
17.6 Appointment of Receiver. . . . . . . . . . . . . . . . . . . . 51
17.7 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
17.8 Application of Funds . . . . . . . . . . . . . . . . . . . . . 51
17.9 Impounds . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 18
LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. . . . . . . . . . . . . . . . . 52
ARTICLE 19
LEGAL REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 20
HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 21
RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE 22
INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
22.1 Tenant's Indemnification of Landlord . . . . . . . . . . . . . 53
22.2 Landlord's Indemnification of Tenant . . . . . . . . . . . . . 54
22.3 Mechanics of Indemnification . . . . . . . . . . . . . . . . . 54
22.4 Survival of Indemnification Obligations; Available Insurance
Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(iv)
ARTICLE 23
SUBLETTING AND ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . 55
23.1 Prohibition Against Assignment . . . . . . . . . . . . . . . . 55
23.2 Subleases. . . . . . . . . . . . . . . . . . . . . . . . . . . 55
23.3 Transfers. . . . . . . . . . . . . . . . . . . . . . . . . . . 57
23.4 REIT Limitations . . . . . . . . . . . . . . . . . . . . . . . 58
23.5 Right of First Offer of Landlord to Xxxxxxx Xxxxxxxxx. . . . . 58
23.6 Bankruptcy Limitations . . . . . . . . . . . . . . . . . . . . 59
23.7 Management Agreement . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE 24
OFFICER'S CERTIFICATES AND OTHER STATEMENTS. . . . . . . . . . . . . . . . 60
24.1 Officer's Certificates . . . . . . . . . . . . . . . . . . . . 60
24.2 Environmental Statements . . . . . . . . . . . . . . . . . . . 61
ARTICLE 25
LANDLORD MORTGAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
25.1 Landlord May Xxxxx Xxxxx . . . . . . . . . . . . . . . . . . . 61
25.2 Tenant's Non-Disturbance Rights. . . . . . . . . . . . . . . . 62
25.3 Facility Mortgage Protection . . . . . . . . . . . . . . . . . 62
ARTICLE 26
SALE OF FEE INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
26.1 Right of First Offer to Purchase . . . . . . . . . . . . . . . 62
26.2 Conveyance by Landlord . . . . . . . . . . . . . . . . . . . . 63
ARTICLE 27
ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
27.1 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . 63
27.2 Arbitration Procedures . . . . . . . . . . . . . . . . . . . . 63
ARTICLE 28
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
28.1 Landlord's Right to Inspect. . . . . . . . . . . . . . . . . . 64
28.2 Breach by Landlord . . . . . . . . . . . . . . . . . . . . . . 64
28.3 Competition Between Landlord and Tenant. . . . . . . . . . . . 64
28.4 No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . 65
28.5 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . 65
28.6 Acceptance of Surrender. . . . . . . . . . . . . . . . . . . . 65
28.7 No Merger of Title . . . . . . . . . . . . . . . . . . . . . . 65
28.8 Quiet Enjoyment. . . . . . . . . . . . . . . . . . . . . . . . 65
28.9 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
28.10 Survival of Claims . . . . . . . . . . . . . . . . . . . . . . 66
28.11 Invalidity of Terms or Provisions. . . . . . . . . . . . . . . 66
28.12 Prohibition Against Usury. . . . . . . . . . . . . . . . . . . 66
28.13 Amendments to Lease. . . . . . . . . . . . . . . . . . . . . . 66
28.14 Successors and Assigns . . . . . . . . . . . . . . . . . . . . 66
28.15 Titles . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
(v)
28.16 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 67
28.17 Memorandum of Lease. . . . . . . . . . . . . . . . . . . . . . 67
28.18 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . . 67
28.19 No Third Party Beneficiaries . . . . . . . . . . . . . . . . . 67
28.20 Non-Recourse as to Landlord. . . . . . . . . . . . . . . . . . 67
28.21 No Relationship. . . . . . . . . . . . . . . . . . . . . . . . 68
28.22 Reletting. . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE 29
GROUND LEASE; SIDE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . 68
29.1 Compliance with Ground Lease . . . . . . . . . . . . . . . . . 68
29.2 Side Agreement with City of Dearborn . . . . . . . . . . . . . 68
Exhibits
Exhibit A - Legal Description of the Land
Exhibit B - Schedule of Improvements
Exhibit C - Other Leased Property
Exhibit D - Pledge Agreement
Exhibit E - Intentionally Omitted
Exhibit F - Calculation of Gross Golf Revenue for the Base Year by Quarter
(vi)
Mystic Creek Golf Club
City of Milford
Oakland County
Michigan
LEASE
THIS LEASE (this "Lease"), dated as of January __, 1998, is entered
into by and between GOLF TRUST OF AMERICA, L.P., a Delaware limited partnership
("Landlord"), and MYSTIC CREEK GOLF CLUB, LIMITED PARTNERSHIP, a Michigan
limited partnership ("Tenant").
THE PARTIES ENTER THIS LEASE on the basis of the following facts,
understandings and intentions:
X. Xxxxxxxx to that certain Contribution and Leaseback
Agreement (the "Agreement"), dated as of December 5, 1997, as amended by
amendment of even date herewith, by and between Landlord and Mystic Creek Golf
Club, a Michigan limited partnership ("Transferor"), Transferor agreed to
transfer to Landlord all of its right, title and interest in and to the Property
(as hereafter defined); and
B. Pursuant to that certain Assignment of Lease, of even date
herewith, Transferor has assigned to Landlord all of its right, title and
interest in and to the Property (as hereafter defined);
X. Xxxxxx, the Transferor under the Agreement and the Assignor
under the Assignment of Lease, 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 Xxxxxx 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"):
1
(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.
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
2
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 the Annual Base 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.
"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
"CASH WITHHOLD AMOUNTS" means the First Cash Withhold Amount and
the Second Cash Withhold Amount.
"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 quarterly by Landlord as part of the Capital Replacement
Fund, as provided in Section 12.4 hereof, based on the Officer's Certificate, or
(ii) Fifty Four Thousand Dollars ($54,000).
"CHANGE OF CONTROL" means:
3
(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 or, 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.
"COMMENCEMENT DATE" means the date on which Landlord acquires the
leasehold title to the Property.
"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 Xxxxxxxxx, 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 of the Agreement.
4
"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 either cash or additional Owner's Shares in the Partnership as
a Contingent Purchase Price for the contribution of the Property subject, in
either case, to the same fifteen percent (15%) collateral security requirements,
(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 environmental
health and safety statutes, ordinance, codes, rules, regulations, orders and
decrees regulating, relating to or imposing liability or standards concerning
or in connection with Hazardous Materials.
"EVENT OF DEFAULT" has the meaning provided in Section 17.1.
"EXPIRATION DATE" means the date that is the last day of the
fortieth (40th) full Fiscal Quarter following the Commencement Date, as such
date may be extended by the Extended Terms.
"EXTENDED TERM" has the meaning provided in Section 3.2.
"FACILITY MORTGAGE" means a mortgage, deed of trust or other
security agreement securing any indebtedness or any other
5
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.
"FIRST CASH WITHHOLD AMOUNT" has the meaning provided in the
Agreement.
"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 January 1,
1997 to December 31, 1997.
"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.
"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
6
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;
(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;
(d) Revenue from the Adventure Golf Facility (as hereinafter
defined); and
(e) Revenue from gate fees.
"GROUND LEASE" means that certain Golf Course Concession and Lease
Agreement dated July 1, 1994, between the City of Dearborn, a Michigan Municipal
Corporation and Tenant.
"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,
7
state or federal governmental authority, including but not limited to any
material or substance which is (i) defined as a "hazardous waste", "hazardous
material", or "restricted hazardous waste" or words of similar import under
any provision of any Environmental Law; (ii) petroleum or petroleum products;
(iii) asbestos; (iv) polychlorinated biphenyl; (v) radioactive material; (vi)
radon gas; (vii) designated as a "hazardous substance" pursuant to Section
311 of the Clean Water Act, 33 U.S.C. Section 1251, et seq. (42 U.S.C.
Section 1317); (viii) defined as a "hazardous waste" pursuant to Section 1004
of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et
seq. (42 U.S.C. Section 6903); or (ix) defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601, et seq. (42 U.S.C.
Section 9601).
"IMPARTIAL APPRAISER" means the casualty insurance company which is
then carrying the largest amount of casualty insurance carried on the Property.
"IMPOSITIONS" means collectively:
(a) all taxes (including all real and personal property, ad
valorem, sales and use, single business, gross receipts, transaction
privilege, rent or similar taxes);
(b) assessments and levies (including all assessments for public
improvements or benefits, whether or not commenced or completed prior to
the date hereof and whether or not to be completed within the Term);
(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 Xxxxxx), 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:
8
(aa) any taxes based on net income (whether denominated as an
income, franchise, capital stock or other tax) imposed on Landlord or any
other Person other than Tenant;
(bb) any transfer or net revenue tax of Landlord or any other
Person other than Tenant; 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 $1,000,000 per year.
"INITIAL TERM" means the period of time from the Commencement Date
through the last day of the fortieth (40th) full Fiscal Quarter following the
Commencement Date.
"INSURANCE REQUIREMENTS" mean all terms of any insurance policy
required by this Lease and all requirements of the issuer of any such policy.
"INTANGIBLE PERSONAL PROPERTY" means all intangible personal
property owned by Landlord and used solely in connection with the ownership,
operation, leasing or maintenance of the Real Property or the Tangible Personal
Property, and any and all trademarks and copyrights, guarantees, Authorizations,
general intangibles, business records, plans and specifications, surveys, all
licenses, permits and approvals solely with respect to the construction,
ownership, operation or maintenance of the Property.
"LAND" means the leasehold interest under the Ground Lease relating
to 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
9
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).
"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,
10
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.
"PERCENTAGE RENT" means, for any Fiscal Year during the Lease Term,
thirty-three and one-third percent (331/3%) 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 Transferor and Landlord, in the form
attached hereto as EXHIBIT D.
11
"PLEDGED OWNER'S SHARES" means the Owner's Shares pledged pursuant
to the Pledge Agreement.
"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.
"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.
"SECOND CASH WITHHOLD AMOUNT" means $500,000.00 plus the absolute
value of the difference between the Net Operating Income for 1997 and
$1,000,000.00.
"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 Mystic Creek Golf Club, a Michigan limited
partnership 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.
12
"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 the Rent and the Net Operating Income for the prior
Fiscal Year, divided by ten and five tenths percent (10.5%).
"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
13
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.
ARTICLE 3
TERM
3.1 INITIAL TERM. The Initial Term shall commence on the
Commencement Date and shall terminate on the last day of the fortieth (40th)
full Fiscal Quarter following the Commencement Date.
3.2 EXTENSION OPTIONS. Landlord grants Tenant the right to
extend the Initial Term of this Lease four (4) 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. Tenant 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, 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 continue in full force and
effect, as the same may be amended, supplemented or modified.
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 Xxxxxx'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
14
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 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 first day of each month in
arrears, at Xxxxxxxx'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) four percent (4%)
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
15
Escalator"); provided that an additional amount shall be added to the first
such increase (on April 1, 1999) to take into account that portion of the
Lease Term existing from the Commencement Date until April 1, 1998, which
additional amount shall be equal to: the product generated by multiplying the
applicable Base Rent Escalator for 1999 (determined on April 1, 1999) by the
number of days in the Lease Term from the Commencement Date until April 1,
1998, divided by 365. In addition, if the Annual Base Rent is increased as
provided in Section 4.5, then, for each of the five (5) years following such
increase, the Annual Base Rent will be further increased 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, 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.
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 calendar years of the Initial Term
shall be limited to Six percent (6%) of the Rent payable for the prior calendar
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
16
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 Tenant'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 Transferor to receive additional 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 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
17
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 Xxxxxx and is
not a penalty. In addition, if any installment of Base Rent, Percentage Rent or
Additional Charges (but only as to those Additional Charges which are payable
directly to Landlord) shall not be paid within five (5) days after the due date
with respect to Base Rent or Percentage Rent or delivery of an invoice to Tenant
with respect to the Additional Charge, the amount unpaid shall bear interest,
from such due date to the date of payment thereof, computed at the Overdue Rate
on the amount of such installment, and Tenant will pay such interest to Landlord
as Additional Charges. The acceptance of any late charge or interest shall not
constitute a waiver of, nor excuse or cure, any default under this Lease, nor
prevent Landlord from exercising any other rights and remedies available to
Landlord.
4.9 NET LEASE; CAPITAL REPLACEMENT RESERVE. This Lease shall be
a triple net lease and Rent shall be payable to Landlord without notice or
demand and without set-off, counterclaim, recoupment, abatement, suspension,
determent, deduction or defense, except as expressly provided herein, so that
this Lease shall yield to Landlord the full amount of the installments of Base
Rent, Percentage Rent and Additional Charges throughout the Term. Without
limiting the foregoing, Tenant shall pay to Landlord on a monthly basis along
with Base Rent, as additional rent, an amount equal to one-twelfth (1/12) of the
Capital Replacement Reserve. Such amount shall be subject to reconciliation at
the end of each Fiscal Quarter.
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.
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ARTICLE 5
SECURITY DEPOSIT
5.1 PLEDGE OF OWNER'S SHARES AND CASH WITHHOLD AMOUNTS. 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 Owner's 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.
5.3 RESERVED.
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. Without limitation of the
foregoing, Tenant hereby grants Landlord a security interest in and to that
certain State of Michigan, Liquor Control Commission Liquor License, No. SDM
13591-97, or any extensions, renewals, or replacements thereof, owned by Tenant
and used in connection with the operation of the Property. The parties are
concurrently herewith executing additional documentation creating and perfecting
such security interest.
5.5 TERMINATION PAYMENT. On the Expiration Date, unless each
option for an Extended Term is exercised, Tenant
19
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 shares of common stock of Golf Trust of America, Inc. shall have
a value deemed to equal the average closing share price of common stock of
Golf Trust of America, Inc. for the five (5) days prior to the Expiration
Date.
5.6 USE OF SECOND CASH WITHHOLD AMOUNT. In the event the Net
Operating Income with respect to the Property is not sufficient to cover Rent
and operating expenses as they become due and payable hereunder, Tenant shall
have the right, for the months of January through May of any Lease year and
subject to the Landlord's review and approval on a monthly basis of operating
statements of Tenant respecting its operations and payment of Rent and
operating expenses for the previous month, to direct Landlord to apply, from
the Second Cash Withhold Amount, to the operating expenses and/or Rent due
for such month (but excluding from such operating expenses any management
fees which shall not be paid out of the Second Cash Withhold Amount), in the
amount of such deficiency, up to $115,000.00 per month for the five (5)
months from January through May. Tenant agrees that at such time as the Net
Operating Income with respect to the Property exceeds the operating expenses
or Rent then due and payable, Tenant shall immediately deposit such excess
amount with the Landlord until the Second Cash Withhold Amount is maintained
at the sum required under this Lease and the Agreement. Tenant further agrees
that, should Tenant lose its real property tax litigation against the
Township of Milford before the Michigan Tax Tribunal (MTT Docket#0244466) and
be required to pay real property taxes with respect to the Property, then,
upon the earlier of (i) the entering of a final, unappealable adverse
judgment against Tenant with respect thereto or (ii) the resumption of
Tenant's obligation to immediately pay such real property taxes, the total
amount of the Second Cash Withhold Amount that Tenant may apply to operating
expenses and/or Rent under the terms of this paragraph shall be reduced from
$575,000.00 to $460,000.00 (such that, at a maximum, Tenant would be able to
apply up to $115,000 per month for only four (4) months.
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
20
shall be subject to Xxxxxx's right of contest pursuant to the provisions of
Article 14. Upon request, Tenant shall promptly furnish to Landlord copies of
official receipts, if available, or other satisfactory proof evidencing such
payments, such as cancelled checks.
6.2 INFORMATION AND REPORTING. Landlord shall give prompt
notice to Tenant of all Impositions payable by Tenant hereunder of which
Xxxxxxxx at any time has actual knowledge, but Xxxxxxxx's failure to give any
such notice shall in no way diminish Xxxxxx'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 Xxxxxx, 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
21
Leased Property into a special assessment district or other taxing
jurisdiction unless Tenant shall have consented thereto, which consent shall
not be unreasonably withheld or unless Landlord agrees to pay the cost
thereof.
ARTICLE 7
TENANT WAIVERS
7.1 NO TERMINATION, ABATEMENT, ETC. Subject to Article 21 and
except as otherwise specifically provided in this Lease, and except for those
causes resulting from the willful misconduct or gross negligence of Landlord or
any person whose claim arose under Xxxxxxxx, (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,
Xxxxxx'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
22
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.
7.2 CONDITION OF THE PROPERTY. Xxxxxx acknowledges receipt and
delivery of possession of the Property and that Xxxxxx 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 HAZARDOUS MATERIAL OR (xvi) COMPLIANCE OF THE PROPERTY WITH ANY
LAW (INCLUDING ENVIRONMENTAL LAWS) OR LEGAL REQUIREMENTS. TENANT ACKNOWLEDGES
THAT THE PROPERTY IS OF ITS SELECTION AND TO ITS 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 Xxxxxx 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
23
purposes contemplated hereby. Tenant acknowledges that (A) Tenant or an
Affiliate of Tenant has previously operated the Property and has knowledge of
its condition which is superior to that of Landlord, (B) 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, (C) to Tenant's
knowledge the Improvements conform to all material Legal Requirements and all
material Insurance Requirements, (D) all easements necessary or appropriate
for the use or operation of the Property have been obtained, (E) all
contractors and subcontractors retained by Tenant who have performed work on
or supplied materials to the Property have been fully paid or any and all
such claims for work performed have been waived by such persons pursuant to
valid, binding and enforceable lien waivers, and all materials to the
Property have been fully paid for, (or, if not, Xxxxxx agrees to forever
indemnify and hold harmless Landlord from any and all damages and
liabilities, of whatever extent or nature, arising out of the nonpayment of
any and all such claims) (F) the Improvements constructed by Tenant or any
Affiliate of Tenant have been completed in all material respects in a
workmanlike manner of first class quality, and (G) all equipment necessary or
appropriate for the use or operation of the Property has been installed and
is presently operative in all material respects.
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
leasehold property of Landlord subject to the terms of the Ground Lease 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
24
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 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
25
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, which consent shall not be unreasonably withheld or
(b) membership plans and fees proposed by Xxxxxx and approved by
Xxxxxxxx, in Landlord's reasonable discretion.
9.4 RESERVED.
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 (but excluding Affiliates of 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
26
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.
ARTICLE 10
HAZARDOUS MATERIALS
Except as specifically set forth in that certain Phase I
Environmental Site Assessment dated December 3, 1997, and that certain Phase II
Environmental Site Assessment dated December 26, 1997, each prepared by ATC
Associates, Inc., Tenant hereby represents, warrants, and covenants to Landlord
as follows:
10.1 OPERATIONS. Except as set forth in the Agreement, 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, without inquiry, except for such inquiry as has
actually been undertaken or for such inquiry as would be deemed reasonable for
the normal operation of such property 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, without
inquiry, except for such inquiry as has actually been undertaken or for such
inquiry as would be deemed reasonable for the normal operation of such property
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.
27
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,
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
28
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. Notwithstanding any foregoing
waivers by Tenant in favor of Landlord, none of the provisions of this Lease
(including, without limitation, Section 10.6 or Section 10.7) shall be construed
as constituting or deemed to constitute a waiver by Tenant of any rights of
contribution or indemnification that it may have against third parties
(excluding Affiliates of Landlord), including, but not limited to, rights of
contribution or indemnification against such third parties arising in connection
with Hazardous Materials or Environmental Laws.
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 Tenant's failure
to have completed all action required to correct, xxxxx 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
29
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 Xxxxxx. 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 Xxxxxxxx, 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.
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
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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 this Lease, 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.
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
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(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 Xxxxxx 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 Xxxxxx 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 Xxxxxx),
and will not cause Landlord to be in violation of any law, ordinance or
regulation.
Landlord shall have the right at any time and from time to time to
post and maintain upon the Property such notices as may be necessary to protect
Landlord's interest from mechanics' liens, materialmen's liens or liens of a
similar nature.
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
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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) Xxxxxx 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.
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 Xxxxxx's book and records with
respect thereto (including supporting data, sales tax returns and Xxxxxx'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
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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 Xxxxxx'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 Xxxxxx'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.
(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
34
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 relating to or reflecting the
operation of the Property shall be kept either at the Property or at Tenant's
offices in __________________, ____________. Such books and records shall
35
be available to Landlord and its representatives for examination,
audit, inspection and transcription.
(b) Tenant shall furnish to Landlord within thirty (30) days of
the end of each Fiscal Quarter unaudited financial statements for the Fiscal
Quarter and year to date, together with the same information for the comparable
prior Fiscal Quarter and year to date, including the following: results of
operations, a balance sheet, statements of cash flows and statement of changes
in owner's equity. If Landlord requests, Tenant shall provide reviewed
financial statements for such Fiscal Quarter; provided, however, such review
shall be at Landlord's expense. Each quarterly report shall also include a
narrative explaining any deviation in any major revenue or expense category or
operating expenses (by category) of more than ten percent (10%) from the amounts
set forth on the Annual Budget, together with, if appropriate a revised Annual
Budget, which budget shall be subject to Landlord's review and approval as
provided in Section 12.7. Each quarterly report shall also forecast any
projected Percentage Rent payable for the following Fiscal Quarter.
(c) For each Fiscal Year, Tenant shall deliver to Landlord
within sixty (60) days of the end of such Fiscal Year financial statements
prepared in accordance with GAAP and audited by an independent accounting firm
approved by Landlord, in its reasonable discretion. Notwithstanding the
foregoing, Landlord shall only require audited financial statements of Gross
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 Xxxxxx 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,
36
claim or encumbrance emanating from Tenant's actions or negligence, not
including, however:
(a) this Lease;
(b) the matters, if any, that existed as of the Commencement
Date, as set forth on the title policy received by Landlord including but
not limited to the Ground Lease;
(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 Xxxxxx 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
37
reasonable attorneys' fees and expenses) based on or arising by reason of any
such encroachment, violation or impairment and in such case, in the event of
an adverse final determination, either (i) obtain valid and effective waivers
or settlements of all claims, liabilities and damages resulting from each
such encroachment, violation or impairment, whether the same shall affect
Landlord or Tenant; or (ii) make such changes in the Improvements, and take
such other actions, as Tenant in the good faith exercise of its judgment
deems reasonably practicable, to remove such encroachment, and to end such
violation or impairment, including, if necessary, the alteration of any of
the Improvements, and in any event take all such actions as may be necessary
in order to be able to continue the operation of the Improvements for the
Primary Intended Use substantially in the manner and to the extent the
Improvements were operated prior to the assertion of such violation or
encroachment. Tenant's obligation under this Section 13.2 shall be in
addition to and shall in no way discharge or diminish any obligation of any
insurer under any policy of title or other insurance and Tenant shall be
entitled to a credit for any sums recovered by Landlord under any such policy
of title or other insurance.
ARTICLE 14
PERMITTED CONTESTS
14.1 AUTHORIZATION. Tenant, on its own or on Landlord's behalf
(or in Landlord's name) but at Tenant's expense, may contest, by appropriate
legal proceedings conducted in good faith and with due diligence, the amount,
validity or application, in whole or in part, of any Imposition or any Legal
Requirement or Insurance Requirement, or any lien, attachment, levy,
encumbrance, charge or claim not otherwise permitted by Section 13.1; provided,
however, that nothing in this Section 14.1 shall limit the right of Landlord to
contest the amount, validity or application, in whole or in part, of any
Imposition, Legal Requirement, Insurance Requirement, or any lien, attachment,
levy, encumbrance, charge or claim with respect to the Property (and Tenant
shall reasonably cooperate with Landlord with respect to such contest), and,
FURTHER PROVIDED THAT:
(a) in the case of an unpaid Imposition, lien, attachment, levy,
encumbrance, charge or claim, the commencement and continuation of such
proceedings shall suspend the collection thereof from Landlord and from the
Property, and neither the Property nor any Rent therefrom nor any part
thereof or interest therein would be in any danger of being sold,
forfeited, attached or lost pending the outcome of such proceedings;
(b) in the case of a Legal Requirement, Landlord would not be
subject to criminal or material civil liability for
38
failure to comply therewith pending the outcome of such proceedings.
Nothing in this Section 14.1(b), however, shall permit Tenant to delay
compliance with any requirement of an Environmental Law to the extent such
non-compliance poses an immediate threat of injury to any Person or to the
public health or safety or of material damage to any real or personal
property;
(c) in the case of a Legal Requirement and/or an Imposition,
lien, encumbrance or charge, Tenant shall give such reasonable security, if
any, as may be demanded by Landlord to insure ultimate payment of the same
and to prevent any sale or forfeiture of the affected Property or the Rent
by reason of such non-payment or noncompliance, PROVIDED, HOWEVER, the
provisions of this Article 14 shall not be construed to permit Tenant to
contest the payment of Rent (except as to contests concerning the method of
computation or the basis of levy of any Imposition or the basis for the
assertion of any other claim) or any other sums payable by Xxxxxx 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
39
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, 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 (and including, but only to the extent applicable and available,
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 flood plain area) in an amount
similar to the amount insured by comparable golf course properties in the
area. Notwithstanding the foregoing, Tenant shall not be required to
participate in the National Flood Insurance Program or otherwise obtain
flood insurance to the extent not available at commercially reasonable
rates; provided Tenant shall give Landlord written notice thereof prior to
cancelling or not obtaining any flood insurance. Tenant may opt to insure
the structures only, and not the Land, subject to the approval of Landlord,
in Landlord's reasonable discretion.
(d) WORKER'S COMPENSATION. Adequate worker's compensation
insurance coverage for all Persons employed by Tenant on the Property in
accordance with the requirements of applicable federal, state and local
laws. 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
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approval of Landlord, in Xxxxxxxx'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 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 "A" 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
41
notice before the policy or policies in question shall be altered, allowed to
expire or cancelled. Each such policy shall also provide that any loss
otherwise payable thereunder shall be payable notwithstanding (i) any act or
omission of Landlord or Tenant which might, absent such provision, result in
a forfeiture of all or a part of such insurance payment, (ii) the occupation
or use of the Property for purposes more hazardous than those permitted by
the provisions of such policy, (iii) any foreclosure or other action or
proceeding taken by any Facility Mortgagee pursuant to any provision of a
mortgage, note, assignment or other document evidencing or securing a loan
upon the happening of an event of default therein or (iv) any change in title
to or ownership of the Property.
15.6 CHANGE IN LIMITS. In the event that Landlord shall at any
time reasonably determine on the basis of prudent industry practice that the
liability insurance carried by Tenant pursuant to Sections 15.1 and 15.2 is
either excessive or insufficient, the parties shall endeavor to agree on the
proper and reasonable limits for such insurance to be carried; and such
insurance shall thereafter be carried with the limits thus agreed on until
further changed pursuant to the provisions of this Article 15; PROVIDED,
HOWEVER, that the deductibles for such insurance or the amount of such insurance
which is self-retained by Tenant shall be as reasonably determined by Tenant so
long as Tenant can reasonably demonstrate its ability to satisfy such deductible
or amount of such self-retained insurance.
15.7 BLANKET POLICY. Notwithstanding anything to the contrary
contained in this Article 15, Tenant's obligations to carry the insurance
provided for herein may be brought within the coverage of a so-called blanket
policy or policies of insurance carried and maintained by Tenant; PROVIDED,
HOWEVER, that the coverage afforded Landlord will not be reduced or diminished
or otherwise be different from that which would exist under a separate policy
meeting all other requirements of this Lease by 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
42
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's liens shall have been filed;
(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 Xxxxxx has not previously
received payment for such work and, upon completion of the work, also
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stating that the work has been fully completed and complies with the
applicable requirements of this Lease;
(f) to the extent actually held by Landlord and not a Facility
Mortgagee, (1) the proceeds shall be held in a separate account and shall
not be commingled with Landlord's other funds, and (2) interest shall
accrue on funds so held at the money market rate of interest and such
interest shall constitute part of the proceeds; and
(g) such other reasonable conditions as Landlord or Facility
Mortgagee may reasonably impose, including, without limitation, payment by
Tenant of reasonable costs of administration imposed by or on behalf of
Facility Mortgagee should the proceeds be held by Facility Mortgagee.
15.10 EXCESS PROCEEDS, DEFICIENCY OF PROCEEDS. Any excess
proceeds of insurance remaining after the completion of the restoration or
reconstruction of the Property (or in the event neither Landlord nor Tenant is
required to or elects to repair and restore) shall be paid to Landlord and
deposited in the Capital Replacement Fund except for any portion specifically
applicable to Tenant's merchandise and inventory. All salvage resulting from
any risk covered by insurance shall belong to Landlord.
If the costs of restoration or reconstruction exceeds the amount of
proceeds received by Landlord or Tenant from insurance, Tenant shall pay for
such excess cost of restoration or reconstruction, except that Tenant may
petition Landlord for withdrawal from the Capital Replacement Fund to cover some
or all of such excess, subject to the approval of Landlord in Landlord's sole
and absolute discretion.
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 this Lease 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
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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.
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
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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.
15.16 INSURANCE REQUIRED UNDER GROUND LEASE. Landlord and Tenant
acknowledge that the Ground Lease contains certain insurance requirements.
Xxxxxx agrees to observe all the terms and conditions of the Ground Lease,
including the insurance provisions thereof. To the extent to which the
insurance provisions of the Ground Lease and of this Lease conflict, the terms
and provisions of the Ground Lease shall control, provided, however, that to the
extent to which the insurance requirements under this Lease impose greater
duties and requirements upon Tenant than are imposed upon the Lessee under the
Ground Lease, Tenant agrees to be bound by such higher standards, and to observe
the terms and conditions of this Article 15.
ARTICLE 16
CONDEMNATION
16.1 TOTAL TAKING. If at any time during the Term the Property
is totally and permanently taken by Condemnation, this Lease shall terminate on
the Date of Taking and Tenant shall promptly pay all outstanding rent and other
charges through the date of termination.
16.2 PARTIAL TAKING. If a portion of the Property is taken by
Condemnation, this Lease shall remain in effect if the Property is not thereby
rendered Unsuitable For Its Primary Intended Use, but if the Property is thereby
rendered Unsuitable For Its Primary Intended Use, this Lease shall terminate on
the Date of Taking.
16.3 RESTORATION. If there is a partial taking of the Property
and this Lease remains in full force and effect pursuant 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.
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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. 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. Xxxxxx agrees that, to the extent to which unpaid rent accrues during
any period of temporary taking, such rent shall be paid from the proceeds of any
condemnation award, if any, payable 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
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
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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) make an assignment for the benefit of its creditors,
(iii) be unable to pay its debts as they mature,
(iv) consent to the appointment of a receiver of itself
or of the whole or any substantial part of its
property, or
(v) 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 ninety (90) days from the date of the entry thereof;
(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
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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" 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
Xxxxxx's breach of this Lease.
17.2 PAYMENT OF COSTS. Tenant shall, to the extent permitted by
law, pay as Additional Charges all costs and expenses incurred by or on behalf
of Landlord, including reasonable attorneys' fees and expenses, as a result of
any Event of Default hereunder.
17.3 CERTAIN REMEDIES. If an Event of Default shall have
occurred and be continuing, whether or not this Lease has been terminated
pursuant to Section 17.1, Tenant shall, to the fullest 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,
to the fullest extent permitted by law, 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. In connection with and in
furtherance of the foregoing provisions of this Section 17.3, Tenant waives, to
the fullest extent permitted, any and all rights which may be waived by Tenant
pursuant to applicable 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,
49
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 Xxxxxx's
failure to perform its obligations under this Lease
or which in the ordinary course of things would be
likely to result therefrom.
In making the above determinations, the "worth at the time of the
award" in subsections (i) and (iii) shall be determined by the court having
jurisdiction thereof including interest at the Overdue Rate and the "worth at
the time of the award" in subsection (iii) shall be determined by the court
having jurisdiction thereof using a discount rate equal to the discount rate of
the Federal Reserve Bank of San Francisco at the time of the award plus one
percent (1%) and the Percentage Rent shall be deemed to be the same as for the
then-current Fiscal Year or, if not determinable, the immediately preceding
Fiscal Year, for the remainder of the Term, or such other amount as either party
shall prove reasonably could have been earned during the remainder of the Term
or any portion thereof; or
(b) without termination of Xxxxxx's right to possession of the
Property, each installment of said Xxxx and other sums payable by Tenant to
Landlord under the Lease as the same becomes due and payable, which Rent and
other sums shall bear interest at the Overdue Rate from the date when due until
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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 may be prescribed by
the laws of the State.
17.9 IMPOUNDS. Landlord shall have the right during the
continuance of an Event of Default to require Tenant to pay to Landlord an
additional monthly sum (each an "Impound Payment") sufficient to pay the Impound
Charges (as hereinafter defined) as they become due. As used herein, "Impound
Charges" shall mean real estate taxes on the Property or payments in lieu
thereof and premiums on any insurance required by this Lease. Landlord shall
reasonably determine the amount of the Impound Charges and of each Impound
Payment. Landlord's reasonable determination shall be based upon previous tax
and insurance bills. The Impound Payments shall be held in a separate account
and shall not be commingled with other funds of Landlord and interest thereon
shall be held for the account of Tenant. Landlord shall apply the Impound
Payments to the payment of the Impound Charges in such order or priority as
Landlord shall determine or as required by law. If at any time the Impound
Payments theretofore paid to Landlord shall be insufficient for the payment of
the Impound Charges, Tenant, within ten (10) days after Landlord's demand
therefor, shall pay the amount of the deficiency to Landlord.
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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 Xxxxxxxx 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 previous Fiscal Year; (ii) all Additional Charges accruing during
the month; and (iii) all other sums, if any, payable by Tenant pursuant to the
provisions of
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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 in consequence of foreclosures, attachments, levies or
executions (other than by Landlord and those claiming from, through or under
Landlord) is assumed by Tenant. In the absence of gross negligence, willful
misconduct or breach of this Lease by Landlord pursuant to Section 28.2,
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;
53
(b) any use, misuse, non-use, condition, maintenance or repair
of the Property;
(c) any Impositions (which are the obligations of Tenant to pay
pursuant to the applicable provisions of this Lease);
(d) any failure on the part of Tenant to perform or comply with
any of the terms of this Lease;
(e) any so-called "dram shop" liability associated with the sale
and/or consumption of alcohol at the Property;
(f) the non-performance of any of the terms and provisions of
any and all existing and future subleases of the Property to be performed
by the landlord (Tenant) thereunder;
(g) Reserved
(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
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FURTHER, HOWEVER, that the indemnifying party shall not, in defense of any
such claim, except with the prior written consent of the indemnified party,
consent to the entry of any judgment or to enter into any settlement that
does not include as an unconditional term thereof the giving by the claimant
or plaintiff in question to the indemnified party and its affiliates a
release of all liabilities in respect of such claims, or that does not result
only in the payment of money damages by the indemnifying party. If the
indemnifying party shall fail to undertake such defense within thirty (30)
days after such notice, or within such shorter time as may be reasonable
under the circumstances, then the indemnified party shall have the right to
undertake the defense, compromise or settlement of such liability or claim on
behalf of and for the account of the indemnifying party.
22.4 SURVIVAL OF INDEMNIFICATION OBLIGATIONS; AVAILABLE INSURANCE
PROCEEDS. Tenant's or Landlord's liability for a breach of the provisions of
this Article 22 arising during the term hereof shall survive any termination of
this Lease. Notwithstanding anything herein to the contrary, each party agrees
to look first to the available proceeds from any insurance it carries in
connection with the Property prior to seeking indemnification or otherwise
seeking to recover any amounts to compensate a party for its damages and then to
seek indemnification only to the extent of any loss not covered by their
available insurance proceeds.
ARTICLE 23
SUBLETTING AND ASSIGNMENT
23.1 PROHIBITION AGAINST ASSIGNMENT. 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 and absolute discretion, further sublease, assign, or license portions
of the Property to third parties, including concessionaires or licensees.
Without limiting the foregoing, all of the following transfers shall
require Landlord's prior written consent, which consent Landlord may
withhold in its sole and absolute discretion:
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(i) a sublease or license to operate golf courses;
(ii) a sublease or license to operate golf professionals'
shops;
(iii) a sublease or license to operate golf driving
ranges;
(iv) a sublease or license to provide golf lessons by
other than a resident professional provided, however, that Landlord
acknowledges and consents to Xxx Xxxxxxx as a resident
professional;
(v) a sublease or license to operate restaurants;
(vi) a sublease or license to operate bars;
(vii) a sublease or license to operate spa or health
clubs; and
(viii) a 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.
Notwithstanding the foregoing, Landlord acknowledges and consents
to the existence of the sublease to Total Golf, Inc., existing as of the date of
this Lease. (Xxxxxxxx's acknowledgment and consent to such sublease shall not
be deemed a consent to any further assignment or sublease). Landlord further
agrees that Landlord shall not unreasonably withhold or delay its consent to a
sublease by Tenant with respect the Adventure Golf Facility (as hereinafter
defined). The "Adventure Golf Facility" shall mean that certain eighteen (18)
hole miniature golf facility located upon the Real Property (excluding any and
all portions of the twenty-seven (27) hole main golf course, with respect to
which Landlord may withhold its consent to any sublease or assignment in its
sole and absolute discretion), as shown on that certain survey to be delivered
to Landlord pursuant to Section 2.1(c) of the Agreement.
(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.
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(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 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 Xxxxxx's entire interest in
this Lease. Any assignment or other transfer of all or any portion of Xxxxxx's
interest in the Lease in contravention
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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
Xxxxxx'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 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 Xxxxxx'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.
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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 an 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 Xxxxxx'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 (b) provides
adequate assurance of future performance under this Lease. Adequate assurance
of future performance by the proposed assignee shall include, as a minimum,
that: (i) any proposed assignee of this Lease shall provide to Landlord an
audited financial statement, dated no later than six (6) months prior to the
effective date of such proposed assignment or sublease, with no material change
therein as of the effective date, which financial statement shall show the
proposed assignee to have a net worth reasonably satisfactory to Landlord or, in
the alternative, the proposed assignee shall provide a guarantor of such
proposed assignee's obligations under this Lease, which guarantor shall provide
an audited financial statement meeting the requirements of (i) above and shall
execute and deliver to
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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 Xxxxxx'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 Xxxxxx's receipt of not less than thirty (30) days' prior written request
by Landlord, Tenant will furnish to Landlord an Officer's Certificate certifying
that:
(a) this Lease is unmodified and in full force and effect (or
that this Lease is in full force and effect as modified and setting forth
the modifications);
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(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.
Xxxxxx's failure to deliver such Officer's Certificate within such
time shall constitute an acknowledgement 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 Landlord's Encumbrance upon the Property,
or any portion
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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 Xxxxxxxx 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
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purchase and sale agreement, Landlord shall retain the right to elect not to
sell the Property. If Tenant 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 Xxxxxx.
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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 examine all books and records of
Landlord and Xxxxxx 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
Xxxxxx 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
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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.
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 Xxxxxxxx, 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:
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If to Landlord: Golf Trust of America, L.P.
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: X. Xxxxxxx Xxxxx, XX
Xxxxx X. Xxxxxx
With a copy to: O'Melveny & Xxxxx, LLP
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
If to Tenant: Mystic Golf Club, Limited Partnership
00000 Xxxx 00 Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
With a copy to: Xxxxx X. Xxxxxxx
0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxxx X. Xxxxxxx & Associates, P.C.
00000 Xxxxxxxxxxxx Xxxxxxx, #000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
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 Xxxxxx.
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
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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
laws of the State, in which reference to this Lease, and all options contained
herein, shall be made. The requesting party 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 give any third Person any right of subrogation or action against any
party to this Lease.
28.20 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.
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28.21 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.
28.22 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.
ARTICLE 29
GROUND LEASE; SIDE AGREEMENT
29.1 GROUND LEASE. Landlord and Xxxxxx acknowledge that the
leasehold interest of Landlord in and to the Property was created by and is
subject to that certain Ground Lease, dated July 1, 1994, by and between the
City of Dearborn and Mystic Creek Golf Club, Limited Partnership, as assigned by
Mystic Creek Golf Club, Limited Partnership, to Landlord by that certain
Assignment of Lease of even date herewith. Xxxxxx agrees to observe and to be
bound by all the terms and conditions of such Ground Lease and to perform and
comply with all the duties and obligations of lessee thereunder, so as not to
cause a default thereunder, as if it were the lessee thereunder, except to the
extent to which this Lease specifically and expressly imposes such duty or
obligation on Landlord and not Tenant.
29.2 SIDE AGREEMENT WITH CITY OF DEARBORN. The parties hereto
have entered into an agreement with the City of Dearborn ("Side Agreement"), of
even date herewith, pursuant to which Xxxxxx has confirmed to the City of
Dearborn (i) its agreement and obligation to comply with the terms of the Ground
Lease, consistent with the terms and provisions of Section 29.1 hereinabove, and
(ii) its obligation to provide certain notices and information to the City of
Dearborn. In connection with such agreement, Tenant hereby covenants with
Landlord that (i) Tenant shall comply with all the terms and conditions set
forth in such Side Agreement as if such terms and conditions were incorporated
into this Lease; (ii) Tenant shall provide Landlord with copies of any notices
from the City of Dearborn alleging noncompliance with such Side Agreement; and
(iii) Tenant shall indemnify and hold harmless Landlord from and against any and
all damages and liabilities that Landlord may incur, including any diminution of
its leasehold interest, due to such Side Agreement or Tenant's
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default thereunder. Nothing in this Section 29.2 shall be deemed to limit
any of Tenant's obligations set forth elsewhere in this Lease and, without
limitation of the foregoing, shall not limit any other provisions respecting
Tenant defaults and/or indemnities.
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IN WITNESS WHEREOF, the Landlord and Xxxxxx have executed this Lease as of the
year and date written above.
LANDLORD: GOLF TRUST OF AMERICA, L.P.,
A DELAWARE LIMITED PARTNERSHIP
By: GTA GP, Inc., a Maryland corporation
Its: General Partner
By: /s/ X. Xxxxxxx Xxxxx, XX
-----------------------------
X. Xxxxxxx Xxxxx, XX
President and CEO
TENANT: MYSTIC CREEK GOLF CLUB, LIMITED PARTNERSHIP,
A MICHIGAN LIMITED PARTNERSHIP
By: Foremost Golf Ventures Limited Liability Company,
a Michigan limited liability company
Its: General Partner
By: Total Golf, Inc., a Michigan corporation
Its: Member
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Xxxxx X. Xxxxxxx
Its President
By: The Xxxxxx Co., a Michigan corporation
Its: Member
By: /s/ Xxxx X. Xxxx
--------------------------
Xxxx X. Xxxx
Its Vice-President
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