--------------------------------------------------------------------------------
Wildewood Country Club
The Country Club at Woodcreek Farms
Columbia
Richland County
South Carolina
L E A S E
GOLF TRUST OF AMERICA, L.P.
LANDLORD
AND
STONEHENGE GOLF DEVELOPMENT, LLC,
TENANT
DATED AS OF DECEMBER 19, 1997
--------------------------------------------------------------------------------
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.1 INITIAL TERM . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.2 EXTENSION OPTIONS. . . . . . . . . . . . . . . . . . . . . . . . 13
3.3 RIGHT OF FIRST OFFER TO LEASE. . . . . . . . . . . . . . . . . . 14
ARTICLE 4
RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.1 RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.2 INCREASE IN INITIAL BASE RENT. . . . . . . . . . . . . . . . . . 15
4.3 PERCENTAGE RENT. . . . . . . . . . . . . . . . . . . . . . . . . 15
4.4 ANNUAL RECONCILIATION OF PERCENTAGE RENT . . . . . . . . . . . . 16
4.5 INCREASE IN BASE RENT FOLLOWING CONVERSION DATE. . . . . . . . . 16
4.6 RECORD-KEEPING . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.7 ADDITIONAL CHARGES . . . . . . . . . . . . . . . . . . . . . . . 17
4.8 LATE PAYMENT OF RENT . . . . . . . . . . . . . . . . . . . . . . 17
4.9 NET LEASE; CAPITAL REPLACEMENT RESERVE . . . . . . . . . . . . . 17
4.10 ALLOCATION OF REVENUES . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 5
SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.1 PLEDGE OF OWNER'S SHARES . . . . . . . . . . . . . . . . . . . . 18
5.2 OBLIGATION TO WITHHOLD DISTRIBUTIONS . . . . . . . . . . . . . . 18
5.3 CROSS-COLLATERAL . . . . . . . . . . . . . . . . . . . . . . . . 18
5.4 LANDLORD'S LIEN. . . . . . . . . . . . . . . . . . . . . . . . . 18
5.5 TERMINATION PAYMENT. . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 6
IMPOSITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.1 PAYMENT OF IMPOSITIONS . . . . . . . . . . . . . . . . . . . . . 19
6.2 INFORMATION AND REPORTING. . . . . . . . . . . . . . . . . . . . 19
6.3 PRORATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.4 REFUNDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.5 UTILITY CHARGES. . . . . . . . . . . . . . . . . . . . . . . . . 20
6.6 ASSESSMENT DISTRICTS . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 7
TENANT WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.1 NO TERMINATION, ABATEMENT, ETC . . . . . . . . . . . . . . . . . 20
7.2 CONDITION OF THE PROPERTY. . . . . . . . . . . . . . . . . . . . 21
(i)
ARTICLE 8
OWNERSHIP OF TANGIBLE PERSONAL PROPERTY. . . . . . . . . . . . . . . . . . . 23
8.1 PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.2 TENANT'S PERSONAL PROPERTY . . . . . . . . . . . . . . . . . . . 23
8.3 TENANT'S OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . 23
8.4 LANDLORD'S WAIVERS . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 9
USE OF PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.1 USE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.2 SPECIFIC PROHIBITED USES . . . . . . . . . . . . . . . . . . . . 24
9.3 MEMBERSHIP SALES . . . . . . . . . . . . . . . . . . . . . . . . 24
9.4 LANDLORD TO GRANT EASEMENTS, ETC . . . . . . . . . . . . . . . . 24
9.5 TENANT'S ADDITIONAL COVENANTS. . . . . . . . . . . . . . . . . . 25
9.6 VALUATION OF REMAINDER INTEREST IN LEASE . . . . . . . . . . . . 25
ARTICLE 10
HAZARDOUS MATERIALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.1 OPERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.2 REMEDIATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.3 VIOLATIONS; ORDERS . . . . . . . . . . . . . . . . . . . . . . . 26
10.4 PERMITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.5 REPORTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.6 REMEDIATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.7 TENANT'S INDEMNIFICATION OF LANDLORD . . . . . . . . . . . . . . 27
10.8 SURVIVAL OF INDEMNIFICATION OBLIGATIONS. . . . . . . . . . . . . 27
10.9 ENVIRONMENTAL VIOLATIONS AT EXPIRATION OR TERMINATION OF
LEASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 11
MAINTENANCE AND REPAIR . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
11.1 TENANT'S OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . 28
11.2 WAIVER OF STATUTORY OBLIGATIONS. . . . . . . . . . . . . . . . . 29
11.3 MECHANIC'S LIENS . . . . . . . . . . . . . . . . . . . . . . . . 29
11.4 SURRENDER OF PROPERTY. . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 12
TENANT IMPROVEMENTS; SUBMITTAL OF BUDGETS; FINANCIAL STATEMENTS. . . . . . . 29
12.1 TENANT'S RIGHT TO CONSTRUCT. . . . . . . . . . . . . . . . . . . 29
12.2 SCOPE OF RIGHT . . . . . . . . . . . . . . . . . . . . . . . . . 30
12.3 COOPERATION OF LANDLORD. . . . . . . . . . . . . . . . . . . . . 30
12.4 CAPITAL REPLACEMENT FUND . . . . . . . . . . . . . . . . . . . . 31
12.5 RIGHTS IN TENANT IMPROVEMENTS. . . . . . . . . . . . . . . . . . 32
12.6 LANDLORD'S RIGHT TO AUDIT CALCULATION OF GROSS GOLF REVENUE. . . 32
12.7 ANNUAL BUDGET. . . . . . . . . . . . . . . . . . . . . . . . . . 32
12.8 FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 13
LIENS, ENCROACHMENTS AND OTHER TITLE MATTERS . . . . . . . . . . . . . . . . 35
13.1 LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
13.2 ENCROACHMENTS AND OTHER TITLE MATTERS. . . . . . . . . . . . . . 35
(ii)
ARTICLE 14
PERMITTED CONTESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
14.1 AUTHORIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . 36
14.2 INDEMNIFICATION OF LANDLORD. . . . . . . . . . . . . . . . . . . 38
ARTICLE 15
INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
15.1 GENERAL INSURANCE REQUIREMENTS . . . . . . . . . . . . . . . . . 38
15.2 OTHER INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . 39
15.3 REPLACEMENT COST . . . . . . . . . . . . . . . . . . . . . . . . 39
15.4 WAIVER OF SUBROGATION. . . . . . . . . . . . . . . . . . . . . . 39
15.5 FORM SATISFACTORY, ETC . . . . . . . . . . . . . . . . . . . . . 39
15.6 CHANGE IN LIMITS . . . . . . . . . . . . . . . . . . . . . . . . 40
15.7 BLANKET POLICY . . . . . . . . . . . . . . . . . . . . . . . . . 40
15.8 INSURANCE PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . 41
15.9 DISBURSEMENT OF PROCEEDS . . . . . . . . . . . . . . . . . . . . 41
15.10 EXCESS PROCEEDS, DEFICIENCY OF PROCEEDS. . . . . . . . . . . . . 42
15.11 RECONSTRUCTION COVERED BY INSURANCE. . . . . . . . . . . . . . . 42
15.12 RECONSTRUCTION NOT COVERED BY INSURANCE. . . . . . . . . . . . . 43
15.13 NO ABATEMENT OF RENT . . . . . . . . . . . . . . . . . . . . . . 43
15.14 WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
15.15 DAMAGE NEAR END OF TERM. . . . . . . . . . . . . . . . . . . . . 44
ARTICLE 16
CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
16.1 TOTAL TAKING . . . . . . . . . . . . . . . . . . . . . . . . . . 44
16.2 PARTIAL TAKING . . . . . . . . . . . . . . . . . . . . . . . . . 44
16.3 RESTORATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 44
16.4 AWARD-DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . 44
16.5 TEMPORARY TAKING . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE 17
EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
17.1 EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . 45
17.2 PAYMENT OF COSTS . . . . . . . . . . . . . . . . . . . . . . . . 47
17.3 CERTAIN REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . 47
17.4 DAMAGES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
17.5 ADDITIONAL REMEDIES. . . . . . . . . . . . . . . . . . . . . . . 48
17.6 APPOINTMENT OF RECEIVER. . . . . . . . . . . . . . . . . . . . . 48
17.7 WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
17.8 APPLICATION OF FUNDS . . . . . . . . . . . . . . . . . . . . . . 49
17.9 IMPOUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE 18
LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. . . . . . . . . . . . . . . . . . 49
ARTICLE 19
LEGAL REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 20
HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 21
RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
(iii)
ARTICLE 22
INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
22.1 TENANT'S INDEMNIFICATION OF LANDLORD . . . . . . . . . . . . . . 51
22.2 LANDLORD'S INDEMNIFICATION OF TENANT . . . . . . . . . . . . . . 52
22.3 MECHANICS OF INDEMNIFICATION . . . . . . . . . . . . . . . . . . 52
22.4 SURVIVAL OF INDEMNIFICATION OBLIGATIONS; AVAILABLE INSURANCE
PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 23
SUBLETTING AND ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 53
23.1 PROHIBITION AGAINST ASSIGNMENT . . . . . . . . . . . . . . . . . 53
23.2 SUBLEASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
23.3 TRANSFERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
23.4 REIT LIMITATIONS . . . . . . . . . . . . . . . . . . . . . . . . 55
23.5 RIGHT OF FIRST OFFER OF LANDLORD TO ACQUIRE LEASEHOLD. . . . . . 55
23.6 BANKRUPTCY LIMITATIONS . . . . . . . . . . . . . . . . . . . . . 56
23.7 MANAGEMENT AGREEMENT . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 24
OFFICER'S CERTIFICATES AND OTHER STATEMENTS. . . . . . . . . . . . . . . . . 57
24.1 OFFICER'S CERTIFICATES . . . . . . . . . . . . . . . . . . . . . 57
24.2 ENVIRONMENTAL STATEMENTS . . . . . . . . . . . . . . . . . . . . 58
ARTICLE 25
LANDLORD MORTGAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
25.1 LANDLORD MAY GRANT LIENS . . . . . . . . . . . . . . . . . . . . 59
25.2 TENANT'S NON-DISTURBANCE RIGHTS. . . . . . . . . . . . . . . . . 59
25.3 FACILITY MORTGAGE PROTECTION . . . . . . . . . . . . . . . . . . 59
ARTICLE 26
SALE OF FEE INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
26.1 RIGHT OF FIRST OFFER TO PURCHASE . . . . . . . . . . . . . . . . 59
26.2 CONVEYANCE BY LANDLORD . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE 27
ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
27.1 ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 60
27.2 ARBITRATION PROCEDURES . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE 28
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
28.1 LANDLORD'S RIGHT TO INSPECT. . . . . . . . . . . . . . . . . . . 61
28.2 BREACH BY LANDLORD . . . . . . . . . . . . . . . . . . . . . . . 61
28.3 COMPETITION BETWEEN LANDLORD AND TENANT. . . . . . . . . . . . . 61
28.4 NO WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
28.5 REMEDIES CUMULATIVE. . . . . . . . . . . . . . . . . . . . . . . 62
28.6 ACCEPTANCE OF SURRENDER. . . . . . . . . . . . . . . . . . . . . 62
28.7 NO MERGER OF TITLE . . . . . . . . . . . . . . . . . . . . . . . 62
28.8 QUIET ENJOYMENT. . . . . . . . . . . . . . . . . . . . . . . . . 62
28.9 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
28.10 SURVIVAL OF CLAIMS . . . . . . . . . . . . . . . . . . . . . . . 63
28.11 INVALIDITY OF TERMS OR PROVISIONS. . . . . . . . . . . . . . . . 63
28.12 PROHIBITION AGAINST USURY. . . . . . . . . . . . . . . . . . . . 63
(iv)
28.13 AMENDMENTS TO LEASE. . . . . . . . . . . . . . . . . . . . . . . 63
28.14 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . 63
28.15 TITLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
28.16 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . 64
28.17 MEMORANDUM OF LEASE. . . . . . . . . . . . . . . . . . . . . . . 64
28.18 ATTORNEYS' FEES. . . . . . . . . . . . . . . . . . . . . . . . . 64
28.19 NON-RECOURSE AS TO LANDLORD. . . . . . . . . . . . . . . . . . . 64
28.20 NO RELATIONSHIP. . . . . . . . . . . . . . . . . . . . . . . . . 64
28.21 RELETTING. . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Exhibits
Exhibit A-1 - Legal Description (Woodcreek)
Exhibit A-2 - Legal Description (Wildewood)
Exhibit B - Schedule of Improvements
Exhibit C - Other Leased Property
Exhibit D - Pledge Agreement
Exhibit E - INTENTIONALLY OMITTED
Exhibit F-1 - Calculation of Gross Golf Revenue for the Base Year by
Quarter (Gross Golf Revenue less than $3 million)
Exhibit F-2 - Calculation of Gross Golf Revenue for the Base Year by
Quarter (Gross Golf Revenue greater than or equal to $3
million)
(v)
Wildewood Country Club
The Country Club at Woodcreek Farms
Columbia
Richland County
South Carolina
LEASE
THIS LEASE (this "Lease"), dated as of December 19, 1997, is
entered into by and between GOLF TRUST OF AMERICA, L.P., a Delaware limited
partnership ("Landlord"), and STONEHENGE GOLF DEVELOPMENT, LLC, a South
Carolina limited liability company (in its capacity as tenant under this
Lease, "Tenant").
THE PARTIES ENTER THIS LEASE on the basis of the following facts,
understandings and intentions:
A. Pursuant to that certain Contribution and Leaseback
Agreement (the "Agreement") dated as of December 18, 1997 by and between
Landlord and Stonehenge Golf Development, LLC, a South Carolina limited
liability company (in its capacity as prior owner of the Property (as
hereinafter defined), "Transferor"), Transferor transferred to Landlord all
of its right, title and interest in and to the Property; and
B. Tenant desires to lease the Property from Landlord, and Landlord
desires to lease the Property to Tenant, on the terms set forth herein.
NOW THEREFORE, in consideration of the foregoing and the
covenants and agreements to be performed by Tenant and Landlord hereunder,
and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
ARTICLE 1
LEASED PROPERTY
Upon and subject to the terms and conditions set forth in this
Lease, Landlord leases to Tenant and Tenant leases from Landlord all of
Landlord's rights and interest (to the extent acquired from Transferor) in and
to the following real property, improvements, personal property and related
rights (collectively the "Property"):
(a) the Land;
(b) the Improvements;
1
(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 agency, body or officer
for the ownership, operation and use of the Property or any part thereof.
"AWARD" means all compensation, sums or anything of value
awarded, paid or received on a total or partial Condemnation.
2
"BANKRUPTCY CODE" has the meaning provided in Section 23.6.
"BASE RENT" means one-twelfth of the Annual Base Rent.
"BASE RENT ESCALATOR" has the meaning provided in Section 4.2.
"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.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which national banks in the City of New
York, New York, are authorized, or obligated, by law or executive order, to
close.
"CAPITAL BUDGET" has the meaning provided in Section 12.7.
"CAPITAL EXPENDITURES" has the meaning provided in Section 12.4.
"CAPITAL REPLACEMENT FUND" means the cumulative amount of the
Capital Replacement Reserve accrued by Landlord, together with interest
thereon as provided in Section 12.4, less amounts withdrawn from the Capital
Replacement Fund as provided in Section 12.4
"CAPITAL REPLACEMENT RESERVE" means, on an annual basis, the
greater of (i) an amount equal to 3% of each Fiscal Quarter's Gross Golf
Revenue, to be accrued monthly by Landlord as part of the Capital Replacement
Fund, as provided in Section 12.4 hereof, based on the Officer's Certificate,
or (ii) Ninety Thousand Dollars ($90,000).
"CHANGE OF CONTROL" means:
(a) the issuance and/or sale by Tenant or the sale by any
stockholder of Tenant of a Controlling interest in Tenant to a Person other
than to a Person that is an Affiliate of Tenant as of the date hereof;
(b) the sale, conveyance or other transfer of all or
substantially all of the assets of Tenant (whether by operation of law or
otherwise);
(c) any other transaction, or series of transactions, which
results in the shareholders, partners or members who control Tenant as of
the date hereof no longer having Control of Tenant; or
3
(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 hereof.
"COMPANY" means Golf Trust of America, Inc. and any subsidiaries
thereof, including, without limitation, GTA LP and GTA GP, and, for purposes
of Sections 10.7, 22.1, 22.3 and 22.4, each of their officers, employees,
directors, agents and representatives.
"CONDEMNATION" means (a) the exercise of any governmental power,
whether by legal proceedings or otherwise, by a Condemnor, and (b) a
voluntary sale or transfer by Landlord to any Condemnor, either under threat
of condemnation or while legal proceedings for condemnation are pending.
"CONDEMNOR" means any public or quasi-public authority, or
private corporation or individual, having the power of condemnation.
"CONTINGENT PURCHASE PRICE" shall have the meaning set forth in
EXHIBIT K of the Agreement.
"CONTROL" means (including, with correlative meanings, the terms
"controlling" and "controlled by"), as applied to any Person, the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of
voting securities, by contract or otherwise.
"CONVERSION DATE" means the earlier of (i) the date Transferor
elects to receive additional Owner's Shares in the Partnership as a
Contingent Purchase Price for the contribution of the Property, (ii) the date
on which Transferor elects in writing to waive its right to receive
additional Owner's Shares, or (iii) the date that is the one hundred fifth
(105th) day following the end of the fifth (5th) full Fiscal Year of the
Initial Term.
4
"CPI" means the United States Consumer Price Index, All Urban
Consumers, U.S. City Average, All Items (1982-84 = 100).
"DATE OF TAKING" means the date the Condemnor has the right to
possession of the property being condemned.
"ENVIRONMENTAL LAWS" means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C.
Section 9601, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq.; the Toxic Substances Control Act, 15 U.S.C. Section
2601 et seq.; the Hazardous Materials Transportation Act, as amended, 49
U.S.C. Section 1801, et seq.; the Superfund Amendments and Reauthorization
Act of 1986, Pub. L. 99-499 and 99-563; the Occupational Safety and Health
Act of 1970, as amended, 29 U.S.C. Section 651, et seq.; the Clean Air Act,
as amended, 42 U.S.C. Section 7401, et seq.; the Safe Drinking Water Act, as
amended, 42 U.S.C. Section 201, et seq.; the Federal Water Pollution Control
Act, as amended, 33 U.S.C. Section 1251, et seq.; and all federal, state and
local environmental health and safety statutes, ordinance, codes, rules,
regulations, orders and decrees regulating, relating to or imposing liability
or standards concerning or in connection with Hazardous Materials.
"EVENT OF DEFAULT" has the meaning provided in Section 17.1.
"EXPIRATION DATE" means the date that is the last day of the
fortieth (40th) full Fiscal Quarter following the Commencement Date, as such
date may be extended by the Extended Terms.
"EXTENDED TERM" has the meaning provided in Section 3.2.
"FACILITY MORTGAGE" means a mortgage, deed of trust or other
security agreement securing any indebtedness or any other Landlord's
Encumbrance placed on the Property in accordance with the provisions of
Article 25.
"FACILITY MORTGAGEE" means the holder or beneficiary of a
Facility Mortgage, if any; provided Landlord has given Tenant notice of the
identity and address of the Person.
"FISCAL QUARTER" means the three-month periods (or applicable
portions thereof) in any Fiscal Year from January 1 through March 31, April 1
through June 30, July 1 through September 30 and October 1 through December
31.
"FISCAL YEAR" means the twelve (12) month period from the first
day of the first Fiscal Quarter commencing after the Commencement Date to the
last day of the fourth Fiscal Quarter commencing after the Commencement Date.
5
"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, (ii) periodic
membership dues, (iii) greens fees, (iv) fees to reserve a tee time, (v)
guest fees, (vi) golf cart rentals, (vii) parking lot fees, (viii) locker
rentals, (ix) fees for golf club storage, (x) fees for the use of swim,
tennis or other facilities, (xi) charges for range balls, range fees or other
fees for golf practice facilities, (xii) fees or other charges paid for golf
or tennis lessons (except where retained by or paid to a USTA or PGA
professional in accordance with historical practice at the Property), (xiii)
fees or other charges for fitness centers, (xiv) forfeited deposits with
respect to any membership application, (xv) transfer fees imposed on any
member in connection with the transfer of any membership interest, (xvi) fees
or other charges paid to Tenant by sponsors of golf tournaments at the
Property (unless the terms under which Tenant is paid by such sponsor do not
comply with Section 23.4, in which event the gross revenues received from
such sponsor for the tournament shall be excluded from Gross Golf Revenue and
further provided that Tenant shall use commercially reasonable efforts to
structure such payment to comply with Section 23.4), (xvii) advertising or
placement fees paid by vendors in exchange for exclusive use or name rights
at the Property, and (xviii) fees received in connection with any golf
package sponsored by any
6
hotel group, condominium group, golf association, travel agency, tourist or
travel association or similar payments; PROVIDED, HOWEVER, that Gross Golf
Revenue shall not include:
(a) Other Revenue;
(b) The amount of any city, county, state or federal sales,
admissions, usage, or excise tax on the item included in Gross Golf
Revenue, which is both added to or incorporated in the selling price and
paid to the taxing authority by Tenant; and
(c) Revenues or proceeds from sales or trade-ins of
machinery, vehicles, trade fixtures or personal property owned by
Tenant used in connection with Tenant's operation of the Property.
"GTA GP" means GTA GP, Inc. and any successor thereto.
"GTA LP" means GTA LP, Inc. and any successor thereto.
"HAZARDOUS MATERIAL" means any substance, material, waste, gas or
particulate matter which is regulated by any local, state or federal
governmental authority, including but not limited to any material or
substance which is (i) defined as a "hazardous waste", "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);
7
(c) excises;
(d) fees (including license, permit, inspection, authorization
and similar fees); and
(e) all other governmental charges;
in each case whether general or special, ordinary or extraordinary, or
foreseen or unforeseen, of every character in respect of the Property and/or
the Rent or Additional Charges (including all interest and penalties thereon
due to any failure in payment by Tenant), which at any time during or in
respect of the Term hereof may be assessed or imposed on or in respect of or
be a lien upon (i) Landlord or Landlord's interest in the Property; (ii) the
Property or any part thereof or any therefrom or any estate, right, title or
interest therein; or (iii) any operation, use or possession of, or sales from
or activity conducted on or in connection with the Property or the leasing or
use of the Property or any part thereof; PROVIDED, HOWEVER, that Impositions
shall not include:
(aa) any taxes based on net income (whether denominated as an
income, franchise, capital stock or other tax) imposed on Landlord or any
other Person other than Tenant;
(bb) any transfer or net revenue tax of Landlord or any other
Person other than Tenant; 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 courses commonly known as Wildewood
Country Club and The Country Club at Woodcreek Farms, driving ranges, putting
greens, clubhouse facilities, snack bars, restaurants, pro shops, 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 $1,102,500 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.
8
"INSURANCE REQUIREMENTS" mean all terms of any insurance policy
required by this Lease and all requirements of the issuer of any such policy.
"INTANGIBLE PERSONAL PROPERTY" means all intangible personal
property owned by Landlord and used solely in connection with the ownership,
operation, leasing or maintenance of the Real Property or the Tangible
Personal Property, and any and all trademarks and copyrights, guarantees,
Authorizations, general intangibles, business records, plans and
specifications, surveys, all licenses, permits and approvals solely with
respect to the construction, ownership, operation or maintenance of the
Property.
"LAND" means the land described in EXHIBIT A-1 and EXHIBIT A-2
attached hereto.
"LANDLORD" means Golf Trust of America, L.P., and any successor
or assignee permitted in accordance with the terms of the Lease.
"LANDLORD'S ENCUMBRANCE" means any lien, encumbrance or title
retention agreement upon the Property, or any portion thereof or interest
therein, whether to secure borrowing or other means of financing or
refinancing.
"LEASE" means this Lease, as the same may be amended from time to
time.
"LEASE TERM" means the period from the Commencement Date through
and including the Expiration Date (or the termination date, if earlier
terminated pursuant to the provisions hereof).
"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.
9
"NON-COMPLYING PARTY" has the meaning provided in Section 27.2.
"OFFICER'S CERTIFICATE" means a certificate of Tenant signed by
an officer authorized to so sign by the board of directors or by-laws, or if
Tenant is a partnership, by an officer authorized to so sign by the general
partners.
"OPERATING BUDGET" has the meaning provided in Section 12.7.
"OTHER LEASED PROPERTIES" means the property or properties leased
or hereafter leased to Tenant or an Affiliate of Tenant by Landlord or an
Affiliate of Landlord, other than pursuant to this Lease, which as of the
date hereof are the properties listed on EXHIBIT C attached hereto.
"OTHER REVENUE" means all revenue received (whether by Tenant or
any subtenants, assignees, concessionaires or licensees) from or by reason of
the Property relating to (i) the operation of snack bars, restaurants, bars,
catering functions, and banquet operations, (ii) sale of merchandise and
inventory on the Property, and (iii) photography services.
"OVERDUE RATE" means, on any date, a rate equal to the Prime Rate
plus an additional five percent (5%) per annum, but in no event greater than
the maximum rate then permitted under applicable law.
"OWNER'S SHARES" means limited partnership interests in the
Partnership.
"PARTNERSHIP" means Golf Trust of America, L.P., a Delaware
limited partnership.
"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
10
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.
"PLEDGED OWNER'S SHARES" means the Owner's Shares pledged
pursuant to the Pledge Agreement.
"PRIMARY INTENDED USE" means the operation of two golf courses
and other activities incidental to the operation of two golf courses.
"PRIME RATE" means on any date, a rate equal to the annual rate
on such date announced by NationsBank, N.A., or its successor entity, to be
its prime rate or, if the prime rate is discontinued, the base rate for
90-day unsecured loans to its corporate borrowers of the highest credit
standing.
"PROPERTY" means the Real Property, the Tangible Personal
Property and the Intangible Personal Property
"REAL PROPERTY" means the Land and the Improvements, and all
easements and appurtenances attached thereto.
"RENT" means, collectively, the Base Rent and Percentage Rent.
"STATE" means the State or Commonwealth in which the Property is
located.
"TANGIBLE PERSONAL PROPERTY" means all items of tangible personal
property and fixtures (if any) owned by Landlord and located on or used
solely in connection with the Real Property, including, but not limited to,
machinery, equipment, furniture, furnishings, movable walls or partitions,
phone systems, restaurant equipment, computers or trade fixtures, golf course
operation and maintenance equipment, including mowers, tractors,
11
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 Stonehenge Golf Development, LLC, a South Carolina
limited liability company and any successor thereto, or assignee thereof, as
permitted by the terms of this Lease.
"TENANT IMPROVEMENTS" has the meaning provided in Section 12.1.
"TENANT'S PERSONAL PROPERTY" has the meaning provided in Section
8.2.
"TENANT'S RIGHT OF FIRST OFFER TO LEASE" has the meaning provided
in Section 3.3.
"TENANT'S RIGHT OF FIRST OFFER TO PURCHASE" has the meaning
provided in Section 26.1.
"TERM" means, collectively, the Initial Term and any Extended
Terms, as the context may require, unless earlier terminated pursuant to the
provisions hereof.
"TERMINATION PAYMENT" means an amount calculated on the
Expiration Date equal to the positive difference, if any, between one hundred
thirteen and one-half percent (113.5%) of all rent due under this Lease and
the Net Operating Income for the prior Fiscal Year, divided by 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.
12
2.2 RULES OF CONSTRUCTION. The following rules shall apply
to the construction and interpretation of this Lease:
(a) Singular words shall connote the plural number as well as
the singular and vice versa, and the masculine shall include the feminine
and the neuter.
(b) All references herein to particular articles, sections,
subsections, clauses or exhibits are references to articles, sections,
subsections, clauses or exhibits of this Lease.
(c) The table of contents and headings contained herein are
solely for convenience of reference and shall not constitute a part of this
Lease nor shall they affect its meaning, construction or effect.
(d) "Including" and variants thereof shall be deemed to mean
"including without limitation."
(e) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles then in effect.
(f) Each party hereto and its counsel have reviewed and revised
(or requested revisions of) this Lease and have participated in the
preparation of this Lease, and therefore any usual rules of construction
requiring that ambiguities are to be resolved against a particular party
shall not be applicable in the construction and interpretation of this
Lease or any exhibits hereto.
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 six (6) 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
13
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 Tenant's Right of First Offer to
Lease only if at the time of the giving of such notice and at the time of the
commencement of the applicable term no Event of Default shall then exist and
only if Landlord elects to lease the Property at the expiration of the Lease
Term. Not more than nine (9) months and not less than three (3) months prior
to the expiration of the Lease Term, Landlord shall, if applicable, give
Tenant written notice of its intent to lease the Property and shall indicate
the terms and conditions upon which Landlord intends to lease the Property.
Tenant shall thereafter have a period of thirty (30) days to elect by
unequivocal written notice to Landlord to lease the Property on the same
terms and conditions as Landlord intends to offer to a third party; provided
prior to Tenant's acceptance Landlord shall retain the right to elect not to
lease the Property by giving Tenant written notice thereof. If Tenant elects
not to lease the Property, then Landlord shall be free to lease the Property
to a third party. However, if the Base Rent for such proposed lease is
reduced by five percent (5%) or more as compared to the Base Rent included in
the lease that Tenant rejected, then Landlord shall again offer Tenant the
right to acquire the Property upon the same terms and conditions, provided
that Tenant shall have only fifteen (15) days to accept such offer.
ARTICLE 4
RENT
4.1 RENT. Tenant will pay to Landlord, in lawful money of the
United States of America, Rent during the Initial Term or any Extended Term.
Payments of Base Rent shall be paid monthly, on the twenty-fifth (25th) day of
each month in arrears, at Landlord's address set forth in Section 28.9 or at
such other place or to such other Person as Landlord from time to time may
designate in writing. The first monthly installment shall be prorated as to any
partial month. If any payment owing hereunder shall otherwise be due on a day
that is not a Business Day, such payment shall be due on the next succeeding
Business Day. Tenant shall receive a credit against Rent (or be paid directly,
at Landlord's option) for any operating expense credits or operating revenues
credited to Landlord pursuant to the Agreement which are applicable to any
period in the Lease Term (E.G., credit for real property taxes, membership dues,
sublease rents, etc.) and
14
conversely Tenant shall reimburse Landlord for any operating expenses paid
for by Landlord pursuant to the Agreement which are the responsibility of
Tenant hereunder.
4.2 INCREASE IN INITIAL BASE RENT. Beginning on the date
(the "Adjustment Date") that is the first day of the first Fiscal Quarter
commencing after the one (1) year anniversary of the Commencement Date, and
on each Adjustment Date thereafter through and including the fourth (4th)
Adjustment Date, the Annual Base Rent will increase by the lesser of (i)
three percent (3%) of the Annual Base Rent payable for the immediately
preceding year, or (ii) two hundred percent (200%) of the change in CPI from
the immediately preceding fiscal year (the "Base Rent Escalator"); provided
the January 1, 1998 increase shall be pro rated for the number of days in the
Lease Term in 1997 divided by 365 and multiplied by the applicable Base Rent
Escalator. In addition, if the Annual Base Rent is increased as provided in
Section 4.5, then the Base Rent Escalator shall continue to apply to each of
the five (5) years following such increase, with the increase effective on
the anniversary of the increase in Base Rent as provided in Section 4.5 in
lieu of increases on January of each year.
4.3 PERCENTAGE RENT. In addition to Base Rent, Tenant shall
pay Percentage Rent as provided herein. Beginning in the first year of the
Initial Term and continuing for the Initial Term and any Extended Term,
Tenant shall calculate the Gross Golf Revenue for each Fiscal Quarter (or
shorter period, if applicable) within twenty (20) days of the end of such
Fiscal Quarter (or shorter period, if applicable) and submit such calculation
in writing to Landlord by way of an Officer's Certificate. If the Gross Golf
Revenue for that Fiscal Quarter (or shorter period, if applicable) is greater
than the Gross Golf Revenue for the same Fiscal Quarter (or shorter period,
if applicable) in the Base Year (and, following the Fiscal Quarter ending
March 31, on a year-to-date basis), then Tenant shall pay to Landlord the
Percentage Rent upon submittal of the Officer's Certificate. The Percentage
Rent payable in any period in any Fiscal Year shall be adjusted to reflect
the Percentage Rent paid on a year-to-date cumulative basis for the Fiscal
Year (pro rated for any partial periods) and the limits set forth in the next
two sentences on a pro rated basis. The increase in Rent resulting from the
payment of Percentage Rent (together with any increase in Base Rent pursuant
to Section 4.2) payable, if any, during each of the first five (5) full
Fiscal Years of the Initial Term shall be limited to five percent (5%) of the
Rent payable for the prior Fiscal Year. Tenant shall receive a credit
against the payment of Percentage Rent in an amount equal to the increase in
the Base Rent over the Initial Base Rent. Both Landlord and Tenant
acknowledge that the amount of Gross Golf Revenue for the Base Year shall be
an estimated amount due to the fact that The Country Club at Woodcreek Farms
was not in operation for much of the Base Year. If Gross Golf Revenue for
the first Fiscal Year
15
of the Initial Term is less than Three Million Dollars ($3,000,000), then for
purposes of this Lease the quarter-by-quarter calculation of Gross Golf
Revenue for the Base Year shall be deemed to be as attached hereto as EXHIBIT
F-1. If the Gross Golf Revenue for the first Fiscal Year of the Initial Term
is greater than or equal to Three Million Dollars ($3,000,000), then for
purposes of this Lease the quarter-by-quarter calculation of Gross Golf
Revenue shall be deemed to be as attached hereto as EXHIBIT F-2. For
purposes of calculating the payments of Percentage Rent due during the first
Fiscal Year of the Initial Term, the Gross Golf Revenue for the Base Year
shall be deemed to be as attached hereto as EXHIBIT F-2.
4.4 ANNUAL RECONCILIATION OF PERCENTAGE RENT. Within sixty
(60) days after the end of each Fiscal Year, or after the expiration or
termination of this Lease, Tenant shall deliver to Landlord an Officer's
Certificate setting forth (i) the Gross Golf Revenue for the Fiscal Year just
ended, and (ii) a comparison of the amount of the Percentage Rent actually
paid during such Fiscal Year versus the amount of Percentage Rent actually
owing on the basis of the annual calculation of the Gross Golf Revenue. If
the Percentage Rent for such Fiscal Year exceeds the sum of the quarterly
payments of Percentage Rent previously paid by Tenant, Tenant shall pay such
deficiency to Landlord along with such Officer's Certificate. If the
Percentage Rent for such Fiscal Year is less than the amount of Percentage
Rent previously paid by Tenant, Landlord shall, at Landlord's option, either
(i) remit to Tenant its check in an amount equal to such difference, or (ii)
grant Tenant a credit against the payment of Rent next coming due. Landlord
shall have the right to audit all of Tenant's business operations at the
Property so as to determine the calculation of Percentage Rent as provided in
Section 12.6.
4.5 INCREASE IN BASE RENT FOLLOWING CONVERSION DATE. For the
Fiscal Year in which the Conversion Date occurs only as a result of the
election by 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
16
due and payable all other amounts, liabilities, obligations and Impositions
which Tenant assumes or agrees to pay under this Lease, and (b) in the event
of any failure on the part of Tenant to pay any of those items referred to in
clause (a) above, Tenant shall also pay and discharge every fine, penalty,
interest and cost which may be added for non-payment or late payment of such
items (the items referred to in clauses (a) and (b) above being referred to
herein collectively as the "Additional Charges"). Except as otherwise
provided in this Lease, all Additional Charges shall become due and payable
at the earlier of (i) thirty (30) days after either Landlord or the
applicable third party delivery of an invoice to Tenant, or (ii) the date of
delinquency with respect to Impositions.
4.8 LATE PAYMENT OF RENT. Tenant hereby acknowledges that
late payment by Tenant to Landlord of Base Rent, Percentage Rent or
Additional Charges will cause Landlord to incur costs not contemplated under
the terms of this Lease, the exact amount of which is presently anticipated
to be extremely difficult to ascertain. Such costs may include processing
and accounting charges and late charges which may be imposed on Landlord by
the terms of any mortgage or deed of trust covering the Property and other
expenses of a similar or dissimilar nature. Accordingly, if any installment
of Base Rent, Percentage Rent or Additional Charges (but only as to those
Additional Charges which are payable directly to Landlord) shall not be paid
within ten (10) days after the date such payment is due, Tenant will pay
Landlord on demand, as Additional Charges, a late charge equal to five
percent (5%) of such installment. The parties agree that this late charge
represents a fair and reasonable estimate of the costs that Landlord will
incur by reason of late payment by Tenant and is not a penalty. In addition,
if any installment of Base Rent, Percentage Rent or Additional Charges (but
only as to those Additional Charges which are payable directly to Landlord)
shall not be paid within five (5) days after the due date with respect to
Base Rent or Percentage Rent or delivery of an invoice to Tenant with respect
to the Additional Charge, the amount unpaid shall bear interest, from such
due date to the date of payment thereof, computed at the Overdue Rate on the
amount of such installment, and Tenant will pay such interest to Landlord as
Additional Charges. The acceptance of 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
17
shall pay to Landlord on a monthly basis along with Base Rent, as additional
rent, an amount equal to one-twelfth (1/12) of the Capital Replacement
Reserve. Such amounts shall be subject to reconciliation at the end of each
Fiscal Quarter and at the end of each Fiscal Year.
4.10 ALLOCATION OF REVENUES. In the event that individuals or
groups purchase for a single price items which are both included and excluded
from Gross Golf Revenue (e.g., green fees and dinner), then Tenant agrees
that revenues shall be allocated to Gross Golf Revenue in a reasonable manner
consistent with the historical allocation of such revenues.
ARTICLE 5
SECURITY DEPOSIT
5.1 PLEDGE OF OWNER'S SHARES. On or prior to the
Commencement Date, Tenant shall cause the Pledge Agreement to be executed for
the benefit of Landlord.
5.2 OBLIGATION TO WITHHOLD DISTRIBUTIONS. Notwithstanding
the above provisions, if the Net Operating Income for the Property falls
below the coverage ratio set forth in Section 2(a) of EXHIBIT D-1 to the
Pledge Agreement, at any time following the release of any Pledged 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 CROSS-COLLATERAL. The Pledged Owner's Shares shall also
secure Tenant's or Tenant's Affiliates obligations under each of the leases
for the Other Leased Properties.
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
18
shall, upon the request of Landlord, execute such financing statements or
other documents or instruments reasonably requested by Landlord to perfect
the lien and security interests herein granted.
5.5 TERMINATION PAYMENT. On the Expiration Date, unless each
option for an Extended Term is exercised, Tenant shall pay to Landlord the
Termination Payment, if any, provided the maximum Termination Payment shall
equal the amounts in the Security Fund (as defined in the Pledge Agreement)
then held by Landlord and shall be payable solely from the proceeds thereof.
For purposes of calculating the Termination Payment, the Owner's Shares 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) day period prior to the
Expiration Date.
ARTICLE 6
IMPOSITIONS
6.1 PAYMENT OF IMPOSITIONS. Subject to Section 6.3 and
Section 17.9, Tenant will pay, or cause to be paid, all Impositions before
any fine, penalty, interest or cost may be added for non-payment, such
payments to be made directly to the taxing authorities where feasible. All
payments of Impositions shall be subject to Tenant's right of contest
pursuant to the provisions of Article 14. Upon request, Tenant shall
promptly furnish to Landlord copies of official receipts, if available, or
other satisfactory proof evidencing such payments, such as cancelled checks.
6.2 INFORMATION AND REPORTING. Landlord shall give prompt
notice to Tenant of all Impositions payable by Tenant hereunder of which
Landlord at any time has actual knowledge, but Landlord's failure to give any
such notice shall in no way diminish Tenant's obligations hereunder to pay
such Impositions. Landlord and Tenant shall, upon reasonable request of the
other, provide such data as is maintained by the party to whom the request is
made with respect to the Property as may be necessary to prepare any required
returns and reports. In the event any applicable governmental authorities
classify any property covered by this Lease as personal property, Tenant
shall file all personal property tax returns in such jurisdictions where it
must legally so file. Each party, to the extent it possesses the same, will
provide the other party, upon reasonable request, with cost and depreciation
records necessary for filing returns for any property so classified as
personal property.
6.3 PRORATIONS. Impositions imposed in respect of the
tax-fiscal period during which the Lease commences or terminates shall be
adjusted and prorated between Landlord and Tenant, whether or not such
Imposition is imposed before or after such commencement or termination, and
Tenant's obligation to pay its prorated share thereof shall survive such
termination. If any
19
Imposition may, at the option of the taxpayer, lawfully be paid in
installments (whether or not interest shall accrue on the unpaid balance of
such Imposition), Tenant may elect to pay in installments, in which event
Tenant shall pay all installments (and any accrued interest on the unpaid
balance of the Imposition) that are due during the Term hereof before any
fine, penalty, premium, further interest or cost may be added thereto.
6.4 REFUNDS. If any refund shall be due from any taxing
authority in respect of any Imposition paid by Tenant, the same shall be paid
over to or retained by Tenant if no Event of Default shall have occurred
hereunder and be continuing. Any such funds retained by Landlord due to an
Event of Default shall be applied as provided in Article 17.
6.5 UTILITY CHARGES. Tenant shall pay or cause to be paid
prior to delinquency charges for all utilities and services, including,
without limitation, electricity, telephone, trash disposal, gas, oil, water,
sewer, communication and all other utilities used in the Property during the
Term.
6.6 ASSESSMENT DISTRICTS. Landlord shall not voluntarily
consent to or agree in writing to (i) any special assessment or (ii) the
inclusion of any material portion of the Leased Property into a special
assessment district or other taxing jurisdiction unless Tenant shall have
consented thereto, which consent shall not be unreasonably withheld or unless
Landlord agrees to pay the cost thereof.
ARTICLE 7
TENANT WAIVERS
7.1 NO TERMINATION, ABATEMENT, ETC. Subject to Article 21
and except as otherwise specifically provided in this Lease, and except for
those causes resulting from the willful misconduct or gross negligence of
Landlord or any person whose claim arose under Landlord, (i) Tenant, to the
extent permitted by law, shall remain bound by this Lease in accordance with
its terms and shall neither take any action without the consent of Landlord
to modify, surrender or terminate the same, nor be entitled to any abatement,
deduction, deferment or reduction of Rent, or set-off against the Rent by
reason of, and (ii) the respective obligations of Landlord and Tenant shall
not be otherwise affected by reason of:
(a) any damage to, or destruction of, any Property or any
portion thereof from whatever cause or any taking of the Property or any
portion thereof;
(b) the lawful or unlawful prohibition of, or restriction upon,
Tenant's use of the Property, or any portion thereof, the interference with
such use by any Person, or by reason of eviction by paramount title;
20
(c) any claim which Tenant has or might have against Landlord or
by reason of any default or breach of any warranty by Landlord under this
Lease or any other agreement between Landlord and Tenant, or to which
Landlord and Tenant are parties;
(d) any bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding up or other proceedings
affecting Landlord or any assignee or transferee of Landlord; or
(e) for any other cause whether similar or dissimilar to any of
the foregoing other than a discharge of Tenant from any such obligations as
a matter of law.
Tenant hereby specifically waives all rights, arising from any
occurrence whatsoever, which may now or hereafter be conferred upon it by law
(i) to modify, surrender or terminate this Lease or quit or surrender the
Property or any portion thereof, or (ii) to entitle Tenant to any abatement,
reduction, suspension or deferment of the Rent or other sums payable by
Tenant hereunder, except as otherwise specifically provided in this Lease.
The obligations of Landlord and Tenant hereunder shall be separate and
independent covenants and agreements and the Rent and all other sums payable
by Tenant hereunder shall continue to be payable in all events unless the
obligations to pay the same shall be terminated pursuant to the express
provisions of this Lease or by termination of this Lease other than by reason
of an Event of Default.
7.2 CONDITION OF THE PROPERTY. Tenant acknowledges receipt
and delivery of possession of the Property and that Tenant has examined and
otherwise has knowledge of the condition of the Property prior to the
execution and delivery of this Lease and has found the same to be in good
order and repair and satisfactory for its purposes hereunder. Regardless,
however of any inspection made by Tenant of the Property and whether or not
any patent or latent defect or condition was revealed or discovered thereby,
Tenant is leasing the Property "as is" in its present condition. Tenant
waives and releases any claim or cause of action against Landlord with
respect to the condition of the Property including any defects or adverse
conditions latent or patent, matured or unmatured, known or unknown by Tenant
or Landlord as of the date hereof. TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER
ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT MADE AND WILL
NOT MAKE, NOR SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING
ANY WARRANTY OR REPRESENTATION AS TO (i) ITS FITNESS, DESIGN OR CONDITION FOR
ANY PARTICULAR USE OR PURPOSE, (ii) THE QUALITY OF THE MATERIAL OR
WORKMANSHIP THEREIN, (iii) THE EXISTENCE OF ANY DEFECT, LATENT OR PATENT,
(iv) LANDLORD'S TITLE THERETO, (v) VALUE, (vi) COMPLIANCE WITH
SPECIFICATIONS, (vii) LOCATION, (viii) USE, (ix) CONDITION,
21
(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 Tenant has examined the title
to the Property prior to the execution and delivery of this Lease and has
found the same to be satisfactory for the purposes contemplated hereby.
Tenant acknowledges that (A) 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, and all materials to the Property have been fully paid for, (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
property of Landlord and (iii) that Tenant has only the right to the use of
such Property during the Term of and upon the terms and conditions of this
Lease.
8.2 TENANT'S PERSONAL PROPERTY. Tenant shall maintain all of
the Property, whether initially included in the Lease or thereafter acquired
by Landlord or Tenant, in good condition and
22
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 xxxx of sale or assignment; provided Landlord, at its election, may
require Tenant to execute such documentation as Landlord may require to
evidence such transfer. Tenant shall not remove any Tangible Personal
Property from the Property upon termination of the Lease. If any of such
Tangible Personal Property is stored away from the Property, Tenant will
provide Landlord with proper access to the storage facility.
8.3 TENANT'S OBLIGATIONS. Tenant shall provide and maintain,
or cause to be provided and maintained, during the entire term of the Lease,
all Tangible Personal Property, as well as merchandise for sale to the
public, and food and beverage, as shall be necessary in order to operate the
Property in compliance with (a) all applicable Legal Requirements, (b)
customary practices in the golf industry, (c) past practices of the
Transferor, and (d) such other reasonable requirements imposed by Landlord
from time to time.
8.4 LANDLORD'S WAIVERS. Any lessor of Tenant's Personal
Property may, upon notice to Landlord and during reasonable hours, enter the
Property and take possession of any of Tenant's Personal Property without
liability for trespass or conversion upon a default by Tenant, provided that
such lessor provide Landlord with the opportunity to cure the defaults of
Tenant on terms and conditions satisfactory to such lessor and Landlord.
ARTICLE 9
USE OF PROPERTY
9.1 USE. After the Commencement Date and during the Term,
Tenant shall use or cause to be used the Property and the improvements
thereon for its Primary Intended Use. Tenant shall not use the Property or
any portion thereof for any other use without the prior written consent of
Landlord, in Landlord's absolute 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
23
of any insurance board, association, organization or company necessary for
the maintenance of insurance, as herein provided, covering the Property and
Tenant's Personal Property.
9.2 SPECIFIC PROHIBITED USES. Tenant shall not use or occupy
or permit the Property to be used or occupied, nor do or permit anything to
be done in or on the Property, in a manner which would (i) violate or fail to
comply with any law, rule or regulation or Legal Requirement, (ii) subject to
Article 12, cause structural injury to any of the Improvements or (iii)
constitute a public or private nuisance or waste. Tenant shall not allow any
Hazardous Material to be located in, on or under the Property, or any
adjacent property, or incorporated in the Property or any improvements
thereon except in compliance with applicable law (including any Environmental
Laws). Tenant shall not allow the Property to be used as a landfill or a
waste disposal site, or a manufacturing, distribution or disposal facility
for any Hazardous Materials. Tenant shall neither suffer nor permit the
Property or any portion thereof, including Tenant's Personal Property, to be
used in such a manner as (i) might reasonably tend to impair Landlord's title
thereto or to any portion thereof, or (ii) may reasonably make possible a
claim or claims of adverse usage or adverse possession by the public, as
such, or of implied dedication of the Property or any portion thereof, or
(iii) is in material violation of any applicable Environmental Law.
9.3 MEMBERSHIP SALES. Tenant shall not sell and/or classify
or reclassify memberships, or set initiation fees, dues and other charges or
materially increase or decrease the number of memberships available at the
Property, except as follows:
(a) in accordance with Transferor's past practice, as reasonably
approved by Landlord, or
(b) membership plans and fees proposed by Tenant and approved by
Landlord, in Landlord's reasonable discretion.
9.4 LANDLORD TO GRANT EASEMENTS, ETC. Landlord shall, from
time to time so long as no Event of Default has occurred and is continuing,
at the request of Tenant and at Tenant's cost and expense (but subject to the
approval of Landlord, which approval shall not be unreasonably withheld or
delayed): (i) grant easements and other rights in the nature of easements;
(ii) release existing easements or other rights in the nature of easements
which are for the benefit of the Property; (iii) dedicate or transfer
unimproved portions of the Property for road, highway or other public
purposes; (iv) execute petitions to have the Property annexed to any
municipal corporation or utility district; (v) execute amendments to any
covenants and restrictions affecting the Property; and (vi) execute and
deliver to any person any instrument appropriate to confirm or effect such
grants, releases, dedications and transfers (to the extent
24
of its interest in the Property), but only upon delivery to Landlord of an
Officer's Certificate (which Officer's Certificate, if contested by Landlord,
shall not be binding on Landlord) stating that such grant, release,
dedication, transfer, petition or amendment is not detrimental to the proper
conduct of the business of Tenant on the Property and does not reduce its
value or usefulness for the Primary Intended Use. Landlord shall not grant,
release, dedicate or execute any of the foregoing items in this Section 9.4
without obtaining Tenant's approval, which approval shall not be unreasonably
withheld or delayed.
9.5 TENANT'S ADDITIONAL COVENANTS. Tenant shall (a) join the
Advisory Association and cooperate in the activities of such association; (b)
at its election, engage in reasonable cross-marketing endeavors with the
members of the Advisory Association; and (c) at its election, provide signage
on the Property which references that the Property is owned by Landlord,
which signage may include an appropriate logo selected by Landlord. In
addition, it is the intent of the parties that Tenant be a single-purpose
entity with no business operations except for those related solely to the
operation of the Property for its Primary Intended Use and other property of
Landlord which may be leased to Tenant. Tenant shall, therefore, not engage
in or undertake any activities other than those respecting the operation of
the Property for its Primary Intended Use, including leasing, managing, and
operating golf courses in accordance with this Lease.
9.6 VALUATION OF REMAINDER INTEREST IN LEASE. Tenant hereby
represents that, at the end of the Term, including all Extended Terms, it
expects that the Land and each of the Improvements will have a fair market
value (determined without regard to any increase or decrease for inflation or
deflation during the Term) equal to at least twenty percent (20%) of the fair
market value of the Land and each of the Improvements at the Commencement
Date. Tenant further represents that, at the end of the Term, including all
Extended Terms, it expects that the Land and each of the Improvements will
have a remaining useful life equal to at least twenty percent (20%) of its
expected useful life at the Commencement Date.
ARTICLE 10
HAZARDOUS MATERIALS
Except as specifically set forth in those certain Updated Phase I
Environmental Assessments dated November 26, 1997, prepared by ARM
Environmental Services, 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.
25
10.2 REMEDIATION. Except as set forth in the Agreement, and
to the best knowledge of Tenant, there are no Environmental Laws requiring
any material remediation, cleanup, repairs or construction (other than normal
maintenance) with respect to the Property.
10.3 VIOLATIONS; ORDERS. Except as set forth in the
Agreement, and to the best knowledge of Tenant, (a) no notices of any
violation or alleged violation of any Environmental Laws relating to the
Property or its uses have been received by either Tenant, or, to the best
knowledge of Tenant, by any prior owner, operator or occupant of the
Property, and (b) there are no writs, injunctions, decrees, orders or
judgments outstanding, or any actions, suits, claims, proceedings or
investigations pending or threatened, relating to the ownership, use,
maintenance or operation of the Property.
10.4 PERMITS. Except as set forth in the Agreement, all
material permits and licenses required under any Environmental Laws in
respect of the operations of the Property have been obtained or are in the
process of being obtained, and Tenant shall be in compliance, in all material
respects, with the terms and conditions of such permits and licenses.
10.5 REPORTS. All material reports of environmental surveys,
audits, investigations and assessments relating to the Property in the
possession or control of Tenant, Transferor or their Affiliates are set forth
or described in the Agreement.
10.6 REMEDIATION. If Tenant becomes aware of the presence of
any Hazardous Material in a quantity sufficient to require remediation or
reporting under any Environmental Law in, on or under the Property or if
Tenant, Landlord, or the Property becomes subject to any order of any
federal, state or local agency to investigate, remove, remediate, repair,
close, detoxify, decontaminate or otherwise clean up the Property, Tenant
shall, at its sole expense, but subject to the last sentence of Section 10.7,
carry out and complete any required investigation, removal, remediation,
repair, closure, detoxification, 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
26
(including punitive or consequential damages), penalties, causes of action,
demands, judgments, costs and expenses (including reasonable attorneys' fees
and expenses), to the extent permitted by law, imposed upon or incurred by or
asserted against Landlord or the Property by reason of any Environmental Law
(irrespective of whether there has occurred any violation of any
Environmental Law) in respect of the Property howsoever arising, without
regard to fault on the part of Tenant, including (a) liability for response
costs and for costs of removal and remedial action incurred by the United
States Government, any state or local governmental unit to any other Person,
or damages from injury to or destruction or loss of natural resources,
including the reasonable costs of assessing such injury, destruction or loss,
incurred pursuant to any Environmental Law, (b) liability for costs and
expenses of abatement, investigation, removal, remediation, correction or
clean-up, fines, damages, response costs or penalties which arise from the
provisions of any Environmental Law, (c) liability for personal injury or
property damage arising under any statutory or common-law tort theory,
including damages assessed for the maintenance of a public or private
nuisance or for carrying on of a dangerous activity, or (d) by reason of a
breach of a representation or warranty in Sections 10.1 through 10.5 of this
Lease. Notwithstanding the foregoing or any other provision of this Lease
(including, without limitation, Section 7.2, Section 10.9 and Article 23),
Tenant shall not be liable, or otherwise be required to indemnify Landlord or
the Company or any Affiliates of the Company for (i) any matters or events
that arise after the Commencement Date that are not caused by any act or
omission on the part of Tenant, or (ii) any matters or events that arise
after the Commencement Date that are directly caused by a breach by Landlord
of the terms of this Lease.
10.8 SURVIVAL OF INDEMNIFICATION OBLIGATIONS. Tenant's
obligations and/or liability under this Article 10 arising during the Term
hereof shall survive any termination of this Lease.
10.9 ENVIRONMENTAL VIOLATIONS AT EXPIRATION OR TERMINATION OF
LEASE. Notwithstanding any other provision of this Lease (except the last
sentence of Section 10.7), if, at a time when the Term would otherwise
terminate or expire, a violation of any Environmental Law has been asserted
by Landlord and has not been resolved in a manner reasonably satisfactory to
Landlord, or has been acknowledged by Tenant to exist or has been found to
exist at the Property or has been asserted by any governmental authority and
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
27
to the Property beyond the date of termination or expiration and this Lease
shall remain in full force and effect under the same terms and conditions
beyond such date with respect to the Property until the earlier to occur of
(i) the completion of all remedial action in accordance with applicable
Environmental Laws or (ii) 12 months beyond such expiration or termination
date; PROVIDED, that Tenant may, upon any such extension of the Term,
terminate the Term by paying to Landlord such amount as is necessary in the
reasonable judgment of Landlord to complete or perform such remedial action.
ARTICLE 11
MAINTENANCE AND REPAIR
11.1 TENANT'S OBLIGATIONS. Tenant, at its expense, will
operate and maintain the Property in good order, repair and appearance
(whether or not the need for such repairs occurs as a result of Tenant's use,
any prior use, the elements or the age of the Property or any portion
thereof) and in accordance with any applicable Legal Requirements, and,
except as otherwise provided in Article 15, with reasonable promptness, make
all necessary and appropriate repairs thereto of every kind and nature,
whether interior or exterior, structural or non-structural, ordinary or
extraordinary, foreseen or unforeseen or arising by reason of a condition
existing prior to the Commencement Date (concealed or otherwise). Tenant
shall operate and maintain the Property in accordance with the operation and
maintenance practices of the Property at the Commencement Date and otherwise
in a manner comparable to other comparable golf course facilities in the
vicinity of the Property. Landlord may consult with the Advisory Association
from time to time with respect to Tenant's compliance with its maintenance
and operation obligations under this Section 11.1, and Landlord and
representatives of Advisory Association shall have the right from time to
time to enter the Property for the purpose of inspecting the Property. If
Landlord, in consultation with the Advisory Association, determines that
Tenant has failed to comply with its maintenance and operation obligations
under this Section 11.1, Landlord shall provide written notice to Tenant
setting forth a list of remedial work and/or steps to be performed by Tenant.
Tenant shall promptly and diligently perform such remedial work and/or steps
as recommended by Landlord, provided if Tenant objects to one or more of the
remedial obligations proposed by Landlord, then the matter shall be submitted
to the dispute resolution procedure set forth in Section 12.7. Tenant will
not take or omit to take any action the taking or omission of which could
reasonably be expected to impair the value or the usefulness of the Property
or any part thereof for its Primary Intended Use.
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
28
thereto, in connection with this Lease, or to maintain the Property in any
way. Tenant hereby waives, to the extent permitted by law, the right to make
repairs at the expense of Landlord pursuant to any law in effect at the time
of the execution of this Lease or hereafter enacted.
11.3 MECHANIC'S LIENS. Nothing contained in this Lease and no
action or inaction by Landlord shall be construed as (i) constituting the
consent or request of Landlord expressed or implied, to any contractor,
subcontractor, laborer, materialman or vendor to or for the performance of
any labor or services or the furnishing of any materials or other property
for the construction, alteration, addition, repair or demolition of or to the
Property or any part thereof; or (ii) giving Tenant any right, power or
permission to contract for or permit the performance of any labor or services
or the furnishing of any materials or other property, in either case, in such
fashion as would permit the making of any claim against Landlord in respect
thereof or to make any agreement that may create, or in any way be the basis
for, any right, title, interest, lien, claim or other encumbrance upon the
estate of Landlord in the Property, or any portion thereof.
11.4 SURRENDER OF PROPERTY. Unless the Lease shall have been
terminated pursuant to the provisions of Article 15, Tenant shall, upon the
expiration or prior termination of the Term, vacate and surrender the
Property to Landlord in the condition in which the Property was originally
received from Landlord, except as repaired, rebuilt, restored, altered or
added to as permitted or required by the provisions of this Lease and except
for ordinary wear and tear (subject to the obligation of Tenant to maintain
the Property in good order and repair during the entire Term of the Lease).
ARTICLE 12
TENANT IMPROVEMENTS; SUBMITTAL OF BUDGETS; FINANCIAL STATEMENTS
12.1 TENANT'S RIGHT TO CONSTRUCT. Subject to the prior
written approval of Landlord in its reasonable discretion, during the Lease
Term Tenant may make alterations, additions, changes and/or improvements to
the Property (individually, a "Tenant Improvement," and collectively, "Tenant
Improvements"). Any such Tenant Improvement shall be made at Tenant's sole
expense and shall become the property of Landlord upon termination of this
Lease. Unless made on an emergency basis to prevent injury to Person or
property, Tenant will submit plans and specifications for any Tenant
Improvements, in the form necessary for any required building permits, to
Landlord for Landlord's prior written approval, such approval not to be
unreasonably withheld or delayed.
Upon approval by Landlord:
29
(a) Tenant shall diligently seek all governmental approvals and
any other necessary private approvals (E.G., ground lessor, mortgagee,
etc.) relating to the construction of any Tenant Improvement; and
(b) once Tenant begins the construction of any Tenant
Improvement, Tenant shall diligently prosecute any such Tenant Improvement
to completion in accordance with applicable insurance requirements and the
laws, rules and regulations of all governmental bodies or agencies having
jurisdiction over the Property; and
(c) Tenant shall not suffer or permit any mechanics' liens or
any other claims or demands arising from the work of construction of any
Tenant Improvement to be enforced against the Property or any part thereof,
and Tenant agrees to hold Landlord and the Property free and harmless from
all liability from any such liens, claims or demands, together with all
costs and expenses in connection therewith; and
(d) all work shall be performed in a good and workmanlike
manner.
12.2 SCOPE OF RIGHT. Subject to Section 12.1, at Tenant's cost
and expense, Tenant shall have the right to:
(a) seek any governmental approvals, including building permits,
licenses, conditional use permits and any certificates of need that Tenant
requires to construct any Tenant Improvement;
(b) erect upon the Property such Tenant Improvements as Tenant
deems desirable; and
(c) engage in any other lawful activities that Tenant determines
are necessary or desirable for the development of the Property in
accordance with its Primary Intended Use.
12.3 COOPERATION OF LANDLORD. Landlord shall cooperate with
Tenant and take such actions, including the execution and delivery to Tenant
of any applications or other documents, reasonably requested by Tenant in
order to obtain any governmental approvals sought by Tenant to construct any
Tenant Improvement approved by Landlord in accordance with Section 12.1 of
this Lease within ten (10) Business Days following the later of (a) the date
Landlord receives Tenant's request, or (b) the date of delivery of any such
application or document to Landlord, so long as the taking of such action,
including the execution of said applications or documents, shall be without
cost to Landlord (or if there is a cost to Landlord, such cost shall be
reimbursed by Tenant), and will not cause Landlord to be in violation of any
law, ordinance or regulation.
30
Landlord shall have the right at any time and from time to time
to post and maintain upon the Property such notices as may be necessary to
protect Landlord's interest from mechanics' liens, materialmen's liens or
liens of a similar nature.
12.4 CAPITAL REPLACEMENT FUND. Solely from the payment of
additional rent received pursuant to Section 4.9 of this Lease, Landlord
shall be obligated to accrue the Capital Replacement Reserve. The Capital
Replacement Reserve shall accrue quarterly based on the Officer's Certificate
and shall be placed in the Capital Replacement Fund. Amounts in the Capital
Replacement Fund from time to time shall be deemed to accrue interest at a
money market rate as reasonably determined by Landlord and such interest
shall be credited to the Capital Replacement Fund. Upon the written request
by Tenant to Landlord stating the specific use to be made and subject to the
reasonable approval of Landlord, the Capital Replacement Fund shall be made
available to Tenant for Capital Expenditures; PROVIDED, HOWEVER, no portion
of amounts credited to the Capital Replacement Fund shall be used to purchase
property to the extent that doing so would cause Landlord to recognize income
other than "rents from real property" as defined in Section 856(d) of the
Code. Tenant shall have no rights with respect to any amounts in the Capital
Replacement Fund except as provided herein. Subject to Landlord's approval
of the Capital Expenditures, Landlord shall make available to Tenant amounts
from the Capital Replacement Fund under the following conditions:
(a) No Event of Default exists and is continuing;
(b) Tenant presents paid qualifying receipts for reimbursement,
or qualifying invoices for direct payment to the vendor;
(c) Such expenditures are included in the Capital Budget
submitted to and approved by Landlord in accordance with Section 12.7; and
(d) If from time to time Tenant shall expend monies beyond the
balance in the Capital Replacement Fund, then Tenant shall be afforded the
opportunity to present such paid invoices for reimbursement at later dates
when the Tenant's reserve balance shall be replenished to a level that can
support such expenditure.
12.5 RIGHTS IN TENANT IMPROVEMENTS. All Tenant Improvements
shall be the property of Landlord. However, Tenant shall be entitled to all
federal and state income tax benefits associated with any Tenant Improvement
during the Lease Term exclusive of any Capital Expenditures paid for from
amounts credited to the Capital Replacement Fund, as to which Landlord shall be
entitled all income tax benefits.
31
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 though its accountants to audit
the information set forth in the Officer's Certificate referred to in Section
4.4 and in connection with such audits to examine Tenant's book and records
with respect thereto (including supporting data, sales tax returns and
Tenant's work papers). If any such audit discloses a deficiency in the
payment of Percentage Rent, Tenant shall forthwith pay to Landlord the amount
of the deficiency as finally agreed or determined, together with interest at
the Overdue Rate from the date when said payment should have been made to the
date of payment thereof; PROVIDED, HOWEVER, that as to any audit that is
commenced more than twelve (12) months after the date Gross Golf Revenue for
any Fiscal Year is reported by Tenant to Landlord in the Officer's
Certificate, the deficiency, if any, with respect to such Gross Golf Revenue
shall bear interest as permitted herein only from the date such determination
of deficiency is made unless such deficiency is the result of gross
negligence or willful misconduct on the part of Tenant. If any such audit
discloses that the Gross Golf Revenue actually received by Tenant for any
Fiscal Year exceeds the Gross Golf Revenue reported by Tenant in the
Officer's Certificate by more than two percent (2%), then Tenant shall pay
all reasonable costs of such audit and examination; provided Tenant shall
have the right to submit the audit determination to arbitration in accordance
with the procedures set forth in Article 28. Landlord shall also have the
right to review and audit from time to time Tenant's business operations
including all books, records and financial statements of Tenant. Tenant
shall promptly provide to Landlord copies of all such books, records,
financial statements or any other documentation of Tenant's business
operations reasonably requested by Landlord.
12.7 ANNUAL BUDGET. Not later than forty-five (45) days prior
to the commencement of each Fiscal Year, Tenant shall prepare and submit to
Landlord an operating budget (the "Operating Budget") and a capital budget
(the "Capital Budget") prepared in accordance with the requirements of this
Section 12.7. The Operating Budget and the Capital Budget (together, the
"Annual Budget") shall be prepared in a form approved by Landlord for use
throughout the Lease Term and show by quarter and for the year as a whole the
following:
(a) Tenant's reasonable estimate of Gross Golf Revenue
(including membership dues, daily use fees and other sources of Gross Golf
Revenue) and other revenue for the forthcoming Fiscal Year itemized on
schedules on a quarterly basis as approved by Landlord and Tenant, together
with assumptions, in narrative form, forming the basis of such schedules.
(b) An estimate of any amounts Landlord will be requested to
provide for Capital Expenditures during the next
32
four Fiscal Years, subject to the limitations set forth in Section 12.4.
(c) A cash flow projection.
(d) A narrative description of any anticipated significant
events, including, if requested by Landlord, a narrative description of any
category of operating expenses that decrease or increase by five percent (5%)
or more from the prior year's expenses.
(e) Tenant's reasonable estimate for each Fiscal Quarter of
the Percentage Rent to be paid for such quarter.
Landlord shall have thirty (30) days after the date on which it
receives the Annual Budget to review, approve or disapprove the Annual
Budget. If the parties are not able to reach agreement on the Annual Budget
for any Fiscal Year during Landlord's thirty (30) day review period, the
parties shall attempt in good faith during the subsequent thirty (30) day
period to resolve any disputes, which attempts shall include, if requested by
either party, at least one (1) meeting of executive-level officers of
Landlord and Tenant and one (1) meeting with the directors of the Advisory
Association. In the event the parties are still not able to reach agreement
on the Annual Budget for any particular Fiscal Year after complying with the
foregoing requirements of this Section 12.7, the parties shall adopt such
portions of the Operating Budget and the Capital Budget as they may have
agreed upon, and any matters not agreed upon shall be referred to 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,
33
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
Columbia, South Carolina. Such books and records shall be available to
Landlord and its representatives for examination, audit, inspection and
transcription.
(b) Tenant shall furnish to Landlord within thirty (30) days
of the end of each Fiscal Quarter unaudited financial statements for the
Fiscal Quarter and year to date, together with the same information for the
comparable prior Fiscal Quarter and year to date, including the following:
results of operations, a balance sheet, statements of cash flows and
statement of changes in owner's equity. If Landlord requests, Tenant shall
provide reviewed financial statements for such Fiscal Quarter; provided,
however, such review shall be at Landlord's expense. Each quarterly report
shall also include a narrative explaining any deviation in any major revenue
or expense category or operating expenses (by category) of more than ten
percent (10%) from the amounts set forth on the Annual Budget, together with,
if appropriate a revised Annual Budget, which budget shall be subject to
Landlord's review and approval as provided in Section 12.7. Each quarterly
report shall also forecast any projected Percentage Rent payable for the
following Fiscal Quarter.
(c) For each Fiscal Year, Tenant shall deliver to Landlord
within sixty (60) days of the end of such Fiscal Year financial statements
prepared in accordance with GAAP and audited by an independent accounting
firm approved by Landlord, in its reasonable discretion. Notwithstanding the
foregoing, Landlord shall only require audited financial statements of Gross
Golf Revenue if Tenant's financial statements are not required to be
separately stated by the Securities and Exchange Commission.
(d) If requested by Landlord, Tenant will make available to
Landlord and the Company and their respective lenders, underwriters, counsel,
accountants and advisors such additional information and financial statements
with respect to Tenant and the Property as Landlord may reasonably request
without any additional cost to Tenant, and Tenant agrees to reasonably
cooperate with Landlord and the Company in effecting public or private debt
or equity financings by the Landlord or the Company, without any additional
cost to Tenant, modifications to this Lease or the requirement of additional
collateral from Tenant.
ARTICLE 13
LIENS, ENCROACHMENTS AND OTHER TITLE MATTERS
34
13.1 LIENS. Subject to the provisions of Article 14 relating
to permitted contests, Tenant will not directly or indirectly create or allow
to remain, and will promptly discharge at its expense any lien, encumbrance,
attachment, title retention agreement or claim upon the Property or any
attachment, levy, claim or encumbrance emanating from Tenant's actions or
negligence, not including, however:
(a) this Lease;
(b) the matters, if any, that existed as of the Commencement
Date, as set forth on the title policy received by Landlord;
(c) restrictions, liens and other encumbrances which are
consented to in writing by Landlord, or any easements granted pursuant to
the provisions of Section 9.4 of this Lease;
(d) liens for those taxes of Landlord which Tenant is not
required to pay hereunder;
(e) subleases or licenses permitted by Article 23;
(f) liens for Impositions or for sums resulting from
noncompliance with Legal Requirements so long as (1) the same are not yet
payable or are payable without the addition of any fine or penalty or (2)
such liens are in the process of being contested as permitted by Article
14;
(g) liens of mechanics, laborers, materialmen, suppliers or
vendors for sums either disputed (PROVIDED THAT such liens are in the
process of being contested as permitted by Article 14) or not yet due; and
(h) any liens which are the responsibility of Landlord pursuant
to the provisions of Article 25.
13.2 ENCROACHMENTS AND OTHER TITLE MATTERS. Subject to Article
21 and excepting any matters granted or created by Landlord after the
Commencement Date, if any of the Improvements shall, at any time, encroach upon
any property, street or right-of-way adjacent to the Property, or shall violate
the agreements or conditions contained in any lawful restrictive covenant or
other agreement affecting the Property, or any part thereof, or shall impair the
rights of others under any easement or right-of-way to which the Property is
subject, or the use of the Property is impaired, limited or interfered with by
reason of the exercise of the right of surface entry or any other rights under a
lease or reservation of any oil, gas, water or other minerals, then promptly
upon request of Landlord or at the behest of any person affected by any such
encroachment, violation or impairment, Tenant, at its sole cost and expense
(subject to its right to
35
contest the existence of any such encroachment, violation or impairment),
shall protect, indemnify, save harmless and defend Landlord, the Company and
Affiliates of the Company from and against all losses, liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses
(including reasonable attorneys' fees and expenses) based on or arising by
reason of any such encroachment, violation or impairment and in such case, in
the event of an adverse final determination, either (i) obtain valid and
effective waivers or settlements of all claims, liabilities and damages
resulting from each such encroachment, violation or impairment, whether the
same shall affect Landlord or Tenant; or (ii) make such changes in the
Improvements, and take such other actions, as Tenant in the good faith
exercise of its judgment deems reasonably practicable, to remove such
encroachment, and to end such violation or impairment, including, if
necessary, the alteration of any of the Improvements, and in any event take
all such actions as may be necessary in order to be able to continue the
operation of the Improvements for the Primary Intended Use substantially in
the manner and to the extent the Improvements were operated prior to the
assertion of such violation or encroachment. Tenant's obligation under this
Section 13.2 shall be in addition to and shall in no way discharge or
diminish any obligation of any insurer under any policy of title or other
insurance and Tenant shall be entitled to a credit for any sums recovered by
Landlord under any such policy of title or other insurance.
ARTICLE 14
PERMITTED CONTESTS
14.1 AUTHORIZATION. Tenant, on its own or on Landlord's
behalf (or in Landlord's name) but at Tenant's expense, may contest, by
appropriate legal proceedings conducted in good faith and with due diligence,
the amount, validity or 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;
36
(b) in the case of a Legal Requirement, Landlord would not be
subject to criminal or material civil liability for failure to comply
therewith pending the outcome of such proceedings. Nothing in this Section
14.1(b), however, shall permit Tenant to delay compliance with any
requirement of an Environmental Law to the extent such non-compliance poses
an immediate threat of injury to any Person or to the public health or
safety or of material damage to any real or personal property;
(c) in the case of a Legal Requirement and/or an Imposition,
lien, encumbrance or charge, Tenant shall give such reasonable security, if
any, as may be demanded by Landlord to insure ultimate payment of the same
and to prevent any sale or forfeiture of the affected Property or the Rent
by reason of such non-payment or noncompliance, PROVIDED, HOWEVER, the
provisions of this Article 14 shall not be construed to permit Tenant to
contest the payment of Rent (except as to contests concerning the method of
computation or the basis of levy of any Imposition or the basis for the
assertion of any other claim) or any other sums payable by Tenant to
Landlord hereunder;
(d) no such contest shall interfere in any material respect with
the use or occupancy of the Property;
(e) in the case of an Insurance Requirement, the coverage
required by Article 15 shall be maintained; and
(f) if such contest be finally resolved against Landlord or
Tenant, Tenant shall, as Additional Charges due hereunder, promptly pay the
amount required to be paid, together with all interest and penalties
accrued thereon, or 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
37
property located in or on the Property, including all Tenant's Personal
Property and any Tenant Improvements, insured with the kinds and amounts of
insurance described below. This insurance shall be written by companies
authorized to do insurance business in the State, and shall otherwise meet
the requirements set forth in Section 15.5 of this Lease. The policies must
name Landlord as an additional insured or loss payee, as applicable. Losses
shall be payable to Landlord and/or Tenant as provided in this Article 15.
In addition, the policies shall name as a loss payee any Facility Mortgagee
by way of a standard form of mortgagee's loss payable endorsement. Any loss
adjustment shall require the written consent of Landlord, Tenant, and each
Facility Mortgagee, if any. Evidence of insurance shall be deposited with
Landlord and, if requested, with any Facility Mortgagee(s). The policies on
the Property, including the Improvements, Fixtures, Tangible and Intangible
Personal Property and any Tenant Improvements, shall insure against the
following risks:
(a) ALL RISK. Loss or damage by all risks or perils including,
but not limited to, fire, vandalism, malicious mischief and extended
coverages, including sprinkler leakage, in an amount not less than 100% of
the then Full Replacement Cost thereof covering all structures built on the
Property and all Tangible Personal Property; and further provided the
Tangible Personal Property may be insured at its fair market value.
(b) LIABILITY. Claims for personal injury or property damage
under a policy of comprehensive general public liability insurance with
amounts not less than five million dollars ($5,000,000) per occurrence and
in the aggregate.
(c) FLOOD. Flood insurance (when the Property is located in
whole or in material part a designated 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
38
approval of Landlord, in Landlord's sole and absolute discretion.
15.2 OTHER INSURANCE. Such other insurance on or in
connection with any of the Property as Landlord or any Facility Mortgagee may
reasonably require, which at the time is usual and commonly obtained in
connection with properties similar in type of building size and use to the
Property and located in the geographic area where the Property is located.
15.3 REPLACEMENT COST. In the event either party believes
that the Full Replacement Cost of the insured property has increased or
decreased at any time during the Lease Term, it shall have the right to have
such Full Replacement Cost redetermined by the Impartial Appraiser. The
party desiring to have the Full Replacement Cost so redetermined shall
forthwith, on receipt of such determination by such Impartial Appraiser, give
written notice thereof to the other party hereto. The determination of such
Impartial Appraiser shall be final and binding on the parties hereto, and
Tenant shall forthwith increase, or may decrease, the amount of the insurance
carried pursuant to this Section 15.3, as the case may be, to the amount so
determined by the Impartial Appraiser. Each party shall pay one-half of the
fee, if any, of the Impartial Appraiser.
15.4 WAIVER OF SUBROGATION. All insurance policies carried by
either party covering the Property including contents, fire and casualty
insurance, shall expressly waive any right of subrogation on the part of the
insurer against the other party (including any Facility Mortgagee). The
parties hereto agree that their policies will include such waiver clause or
endorsement so long as the same are obtainable without extra cost, and in the
event of such an extra charge the other party, at its election, may pay the
same, but shall not be obligated to do so.
15.5 FORM SATISFACTORY, ETC. All of the policies of insurance
referred to in this Article 15 shall be written in a form reasonably
satisfactory to Landlord and by insurance companies rated not less than XV by
A.M. Best's Insurance Guide. Tenant shall pay all premiums for the policies
of insurance referred to in Sections 15.1 and 15.2 and shall deliver
certificates thereof to Landlord prior to their effective date (and with
respect to any renewal policy, at least ten (10) days prior to the expiration
of the existing policy). In the event Tenant fails to satisfy its
obligations under this Article 15, Landlord shall be entitled, but shall have
no obligation, to effect such insurance and pay the premiums therefore, which
premiums shall be repayable to Landlord upon written demand as Additional
Charges. Each insurer issuing policies pursuant to this Article 15 shall
agree, by endorsement on the policy or policies issued by it, or by
independent instrument furnished to Landlord, that it will give to Landlord
thirty (30) days' written
39
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 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
40
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 Tenant has not previously
received payment for such work and, upon completion of the work, also
stating that the work has been fully completed and complies with the
applicable requirements of this Lease;
41
(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 Section 21.2 and assign all of its rights to any
insurance proceeds required under this Lease to Landlord.
(b) DESTRUCTION NOT RENDERING PROPERTY UNSUITABLE FOR ITS
PRIMARY USE. If during the term, the Property is totally or partially
destroyed from a risk covered by the insurance described in Article 15, but
the Real Property is not thereby rendered Unsuitable For Its Primary
Intended Use, Tenant shall diligently restore the Property to substantially
the same condition as existed immediately before the damage or destruction;
PROVIDED, HOWEVER, Tenant
42
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 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
43
terminate this Lease at a time when Tenant has a remaining Extended Term,
then such termination notice shall be of no effect if Tenant shall exercise
its rights to extend the Term not later than the earlier of the time required
by Section 3.2 or thirty (30) days after Landlord's notice given under this
Section 15.15.
ARTICLE 16
CONDEMNATION
16.1 TOTAL TAKING. If at any time during the Term the
Property is totally and permanently taken by Condemnation, this Lease shall
terminate on the Date of Taking and Tenant shall promptly pay all outstanding
rent and other charges through the date of termination.
16.2 PARTIAL TAKING. If a portion of the Property is taken by
Condemnation, this Lease shall remain in effect if the Property is not
thereby rendered Unsuitable For Its Primary Intended Use, but if the Property
is thereby rendered Unsuitable For Its Primary Intended Use, this Lease shall
terminate on the Date of Taking.
16.3 RESTORATION. If there is a partial taking of the
Property and this Lease remains in full force and effect pursuant to Section
16.2, Landlord at its cost shall accomplish all necessary restoration up to
but not exceeding the amount of the Award payable to Landlord, as provided
herein. If Tenant receives an Award under Section 16.4, Tenant shall repair
or restore any Tenant Improvements up to but not exceeding the amount of the
Award payable to Tenant therefor.
16.4 AWARD-DISTRIBUTION. The entire Award shall belong to and
be paid to Landlord, except that, subject to the rights of the Facility
Mortgagee, Tenant shall be entitled to receive from the Award, if and to the
extent such Award specifically includes such items, a sum attributable to the
value, if any, of: (i) the loss of Tenant's business during the remaining
term, (ii) any Tenant Improvements and (iii) the leasehold interest of Tenant
under this Lease.
16.5 TEMPORARY TAKING. The taking of the Property, or any
part thereof, by military or other public authority shall constitute a taking
by Condemnation only when the use and occupancy by the taking authority has
continued for longer than six (6) months. During any such six (6) month
period, which shall be a temporary taking, all the provisions of this Lease
shall remain in full force and effect with no abatement of rent payable by
Tenant hereunder. In the event of any such temporary taking, the entire
amount of any such Award made for such temporary taking allocable to the
Lease Term, whether paid by way of damages, rent or otherwise, shall be paid
to Tenant.
44
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 period shall not extend beyond thirty
(30) days as otherwise provided by this Section 17.1(b) if the facts or
circumstances giving rise to the default are creating a further harm to
Landlord or the Property and Landlord makes a good faith determination that
Tenant is not undertaking remedial steps that Landlord would cause to be
taken if this Lease were then to terminate;
(c) if Tenant shall:
(i) admit in writing its inability to pay its debts as
they become due,
(ii) file a petition in bankruptcy or a petition to take
advantage of any insolvency act,
(iii) make an assignment for the benefit of its creditors,
(iv) be unable to pay its debts as they mature,
(v) consent to the appointment of a receiver of itself
or of the whole or any substantial part of its property, or
45
(vi) file a petition or answer seeking reorganization or
arrangement under the Federal bankruptcy laws or any other
applicable law or statute of the United States of America or any
state thereof;
(d) if Tenant shall, on a petition in bankruptcy filed against
it, be adjudicated as bankrupt or a court of competent jurisdiction shall
enter an order or decree appointing, without the consent of Tenant, a
receiver of Tenant or of the whole or substantially all of its property, or
approving a petition filed against it seeking reorganization or arrangement
of Tenant under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state thereof, and such
judgment, order or decree shall not be vacated or set aside or stayed
within sixty (60) days from the date of the entry thereof;
(e) if Tenant shall be liquidated or dissolved, or shall begin
proceedings toward such liquidation or dissolution;
(f) if the estate or interest of Tenant in the Property or any
part thereof shall be levied upon or attached in any proceeding and the
same shall not be vacated or discharged within the later of ninety
(90) days after commencement thereof or thirty (30) days after receipt by
Tenant of notice thereof from Landlord (unless Tenant shall be contesting
such lien or attachment in accordance with Article 14); PROVIDED, HOWEVER,
that such notice shall be in lieu of and not in addition to any notice
required under applicable law;
(g) if, except as a result of damage, destruction or a partial
or complete Condemnation or other Unavoidable Delays, Tenant voluntarily
ceases operations on the Property;
(h) any representation or warranty made by Tenant herein or in
any certificate, demand or request made pursuant hereto proves to be
incorrect, now or hereafter, in any material respect; or
(i) an "Event of Default" (as defined in such lease) by Tenant
or any Affiliate of Tenant in any other lease by and between such party and
Landlord or any Affiliate of Landlord, or an "Event of Default" under the
Pledge Agreement;
THEN, Tenant shall be declared to have breached this Lease.
Landlord may terminate this Lease by giving Tenant not less than ten (10) days'
notice (or no notice for clauses (c), (d), (e), (f) and (g)) of such termination
and upon the
46
expiration of the time fixed in such notice, the Term shall terminate and all
rights of Tenant under this Lease shall cease. Landlord shall have all
rights at law and in equity available to Landlord as a result of Tenant's
breach of this Lease.
17.2 PAYMENT OF COSTS. Tenant shall, to the extent permitted
by law, pay as Additional Charges all costs and expenses incurred by or on
behalf of Landlord, including reasonable attorneys' fees and expenses, as a
result of any Event of Default hereunder.
17.3 CERTAIN REMEDIES. If an Event of Default shall have
occurred and be continuing, whether or not this Lease has been terminated
pursuant to Section 17.1, Tenant shall, to the extent permitted by law, if
required by Landlord to do so, immediately surrender to Landlord the Property
pursuant to the provisions of Section 17.1 and quit the same and Landlord may
enter upon and repossess the Property by reasonable force, summary
proceedings, ejectment or otherwise, and may remove Tenant and all other
Persons and any and all Tenant's Personal Property from the Property subject
to any requirement of law.
17.4 DAMAGES. None of the following events shall relieve
Tenant of its liability and obligations hereunder, all of which shall survive
any such termination, repossession or reletting: (a) the termination of this
Lease pursuant to Section 17.1, (b) the repossession of the Property, (c) the
failure of Landlord, notwithstanding reasonable good faith efforts, to relet
the Property, (d) the reletting of all or any portion thereof, nor (e) the
failure of Landlord to collect or receive any rentals due upon any such
reletting. In the event of any such 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
47
(iv) any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which in the ordinary
course of things would be likely to result therefrom.
In making the above determinations, the "worth at the time of the
award" in subsections (i) and (iii) shall be determined by the court having
jurisdiction thereof including interest at the Overdue Rate and the "worth at
the time of the award" in subsection (iii) shall be determined by the court
having jurisdiction thereof using a discount rate equal to the discount rate
of the Federal Reserve Bank of San Francisco at the time of the award plus
one percent (1%) and the Percentage Rent shall be deemed to be the same as
for the then-current Fiscal Year or, if not determinable, the immediately
preceding Fiscal Year, for the remainder of the Term, or such other amount as
either party shall prove reasonably could have been earned during the
remainder of the Term or any portion thereof; or
(b) without termination of Tenant's right to possession of
the Property, each installment of said Rent and other sums payable by Tenant
to Landlord under the Lease as the same becomes due and payable, which Rent
and other sums shall bear interest at the Overdue Rate from the date when due
until paid, and Landlord may enforce, by action or otherwise, any other term
or covenant of this Lease.
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.
48
17.9 IMPOUNDS. Landlord shall have the right during the
continuance of an Event of Default to require Tenant to pay to Landlord an
additional monthly sum (each an "Impound Payment") sufficient to pay the Impound
Charges (as hereinafter defined) as they become due. As used herein, "Impound
Charges" shall mean real estate taxes on the Property or payments in lieu
thereof and premiums on any insurance required by this Lease. Landlord shall
determine the amount of the Impound Charges and of each Impound Payment. The
Impound Payments shall be held in a separate account and shall not be commingled
with other funds of Landlord and interest thereon shall be held for the account
of Tenant. Landlord shall apply the Impound Payments to the payment of the
Impound Charges in such order or priority as Landlord shall determine or as
required by law. If at any time the Impound Payments theretofore paid to
Landlord shall be insufficient for the payment of the Impound Charges, Tenant,
within ten (10) days after Landlord's demand therefor, shall pay the amount of
the deficiency to Landlord.
ARTICLE 18
LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT
If Tenant shall fail to make any payment or to perform any act
required to be made or performed under this Lease, and to cure the same
within the relevant time periods provided in Article 17, Landlord, after
notice to and demand upon Tenant, and without waiving or releasing any
obligation or default, may (but shall be under no obligation to) at any time
thereafter make such payment or perform such act for the account and at the
expense of Tenant. Landlord may, to the extent permitted by law, enter upon
the Property for such purpose and take all such action thereon as, in
Landlord's opinion, may be necessary or appropriate therefor. No such entry
shall be deemed an eviction of Tenant. All sums so paid by Landlord and all
costs and expenses (including reasonable attorneys' fees and expenses, to the
extent permitted by law) so incurred, together with a late charge thereon at
the Overdue Rate from the date on which such sums or expenses are paid or
incurred by Landlord, shall be paid by Tenant to Landlord on demand. The
obligations of Tenant and rights of Landlord contained in this Article 18
shall survive the expiration or earlier termination of this Lease.
ARTICLE 19
LEGAL REQUIREMENTS
Subject to Article 14 regarding permitted contests, Tenant, at
its expense, shall promptly (a) comply with all Legal Requirements and
Insurance Requirements in respect of the use, operation, maintenance, repair
and restoration of the Property, whether or not compliance therewith shall
require structural changes in any of the Improvements or interfere with the
use and enjoyment of the Property; and (b) procure, maintain and comply with
all licenses and other authorizations required for any use
49
of the Property then being made, and for the proper erection, installation,
operation and maintenance of the Property or any part thereof.
ARTICLE 20
HOLDING OVER
If Tenant shall for any reason remain in possession of the
Property after the expiration of the Term or earlier termination of the Term
hereof, such possession shall be deemed to be a tenant at sufferance during
which time Tenant shall pay as rental each month, 125% of the aggregate of
(i) the aggregate Base Rent and monthly portion of the Percentage Rent
payable with respect to that month in the last Fiscal Year; (ii) all
Additional Charges accruing during the month; and (iii) all other sums, if
any, payable by Tenant pursuant to the provisions of this Lease with respect
to the Property. During such period of month-to-month tenancy, Tenant shall
be obligated to perform and observe all of the terms, covenants and
conditions of this Lease, but shall have no rights hereunder other than the
right, to the extent given by law to month-to-month tenancies, to continue
its occupancy and use of the Property. Nothing contained herein shall
constitute the consent, express or implied, of Landlord to the holding over
of Tenant after the expiration or earlier termination of this Lease.
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
50
(including reasonable attorneys' fees and expenses), to the extent permitted
by law, imposed upon or incurred by or asserted against Landlord, the Company
or Affiliates of the Company by reason of:
(a) any accident, injury to or death of persons or loss of or
damage to property occurring on or about the Property or adjoining
property, including, but not limited to, any accident, injury to or death
of Person or loss of or damage to property resulting from golf balls, golf
clubs, golf shoes, lawn mowers or other equipment, pesticides, fertilizers
or other substances, golf carts, tractors or other motorized vehicles
present on or adjacent to the Property;
(b) any use, misuse, non-use, condition, maintenance or repair
of the Property;
(c) any Impositions (which are the obligations of Tenant to pay
pursuant to the applicable provisions of this Lease);
(d) any failure on the part of Tenant to perform or comply with
any of the terms of this Lease;
(e) any so-called "dram shop" liability associated with the sale
and/or consumption of alcohol at the Property;
(f) the non-performance of any of the terms and provisions of
any and all existing and future subleases of the Property to be performed
by the landlord (Tenant) thereunder;
(g) the negligence or alleged negligence of Landlord with
respect to the Property; or
(h) any liability Landlord may incur or suffer as a result of
any permitted contest by Tenant pursuant to Article 14.
22.2 LANDLORD'S INDEMNIFICATION OF TENANT. Landlord shall
protect, indemnify, save harmless and defend Tenant from and against all
liabilities, obligations, claims, actual or consequential damages, penalties,
causes of action, costs and expenses (including reasonable attorneys' fees)
imposed upon or incurred by or asserted against Tenant as a result of Landlord's
active, gross negligence or willful misconduct.
22.3 MECHANICS OF INDEMNIFICATION. As soon as reasonably
practicable after receipt by the indemnified party of notice of any liability or
claim incurred by or asserted against the indemnified party that is subject to
indemnification under this Article 22, the indemnified party shall give notice
thereof
51
to the indemnifying party. The indemnified party may at its option demand
indemnity under this Article 22 as soon as a claim has been threatened by a
third party, regardless of whether an actual loss has been suffered, so long
as the indemnified party shall in good faith determine that such claim is not
frivolous and that the indemnified party may be liable for, or otherwise
incur, a loss as a result thereof and shall give notice of such determination
to the indemnifying party. The indemnified party shall permit the
indemnifying party, at its option and expense, to assume the defense of any
such claim by counsel selected by the indemnifying party and reasonably
satisfactory to the indemnified party, and to settle or otherwise dispose of
the same; PROVIDED, HOWEVER, that the indemnified party may at all times
participate in such defense at its expense, and PROVIDED FURTHER, HOWEVER,
that the indemnifying party shall not, in defense of any such claim, except
with the prior written consent of the indemnified party, consent to the entry
of any judgment or to enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff in
question to the indemnified party and its affiliates a release of all
liabilities in respect of such claims, or that does not result only in the
payment of money damages by the 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
52
of this Article 23, a Change in Control of the Tenant shall constitute an
assignment of this Lease.
23.2 SUBLEASES.
(a) PERMITTED SUBLEASES. Tenant shall not, without the prior
written consent of Landlord, which consent Landlord may withhold in its
sole discretion, further sublease or license portions of the Property to
third parties, including concessionaires or licensees. Without limiting
the foregoing, Tenant's proposed sublease or any of the following transfers
shall require Landlord's prior written consent, which consent Landlord may
withhold in its sole discretion:
(i) sublease or license to operate golf courses;
(ii) sublease or license to operate golf professionals'
shops;
(iii) sublease or license to operate golf driving ranges;
(iv) sublease or license to provide golf lessons by other
than a resident professional;
(v) sublease or license to operate restaurants;
(vi) sublease or license to operate bars;
(vii) sublease or license to operate spa or health clubs;
and
(viii) sublease or license to operate any other portions
(but not the entirety) of the Property customarily associated with
or incidental to the operation of the golf course.
(b) TERMS OF SUBLEASE. Each sublease with respect to the
Property shall be subject and subordinate to the provisions of this Lease.
No sublease made as permitted by this Section 23.2 shall affect or reduce
any of the obligations of Tenant hereunder, and all such obligations shall
continue in full force and effect as if no sublease had been made. No
sublease shall impose any additional obligations on Landlord under this
Lease.
(c) COPIES. Tenant shall, not less than sixty (60) days prior
to any proposed assignment or sublease, deliver to Landlord written notice
of its intent to assign or sublease, which notice shall identify the
intended assignee or sublessee by name and address, shall specify the
effective date of the intended assignment or sublease, and
53
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 Tenant's entire interest in
this Lease. Any assignment or other transfer of all or any portion of Tenant's
interest in the Lease in contravention of the terms of this Lease shall be
voidable at Landlord's option. Anything in this Lease to the contrary
notwithstanding, Tenant shall not sublet all or any portion of the Property or
enter into any other agreement which has the effect of reducing the Percentage
Rent payable to Landlord hereunder.
54
23.4 REIT LIMITATIONS. Anything contained in this Lease to
the contrary notwithstanding, Tenant shall not (i) sublet or assign or enter
into other arrangements such that the amounts to be paid by the sublessee or
assignee thereunder would be based, in whole or in part, on the income or
profits derived by the business activities of the sublessee or assignee; (ii)
sublet or assign the Property or this Lease to any person that Landlord owns,
directly or indirectly (by applying constructive ownership rules set forth in
Section 856(d)(5) of the Code), a 10% or greater interest; or (iii) sublet or
assign the Property or this Lease in any other manner or otherwise derive any
income which could cause any portion of the amounts received by Landlord
pursuant to this Lease or any sublease to fail to qualify as "rents from real
property" within the meaning of Section 856(d) of the Code, or which could
cause any other income received by Landlord to fail to qualify as income
described in Section 856(c)(2) of the Code. The requirements of this Section
23.4 shall likewise apply to any further subleasing by any subtenant.
23.5 RIGHT OF FIRST OFFER OF LANDLORD TO ACQUIRE LEASEHOLD.
In addition to Landlord's rights in Section 23.1, Landlord or its designee
shall have, for a period of sixty (60) days following receipt of the written
notice of Tenant's intent to assign its interest in the Lease to a third
party unaffiliated with Tenant (and in which management of the Tenant shall
have no continuing management or ownership interest), the right to elect to
purchase the leasehold interest on the terms and conditions at which Tenant
proposes to sell or assign its interest. If Landlord or its designee elects
not to purchase such interest of Tenant, then Tenant shall be free to sell
its interest to a third party, subject to Landlord's prior written consent as
provided in Section 23.1. However, if (i) the price at which Tenant intends
to sell its interest is reduced by five percent (5%) or more, or (ii) the
assignment to the third party is not completed within one hundred eighty
(180) days of Landlord's receipt of written notice of Tenant's intention to
assign its interest in the Lease, then Tenant shall again offer Landlord the
right to acquire its interest; provided, however, that in the case of a
change in price, Landlord shall have only fifteen (15) days to accept such
revised offer.
23.6 BANKRUPTCY LIMITATIONS.
(a) Tenant acknowledges that this Lease is a lease of
nonresidential real property and therefore agrees that Tenant, as the debtor
in possession, or the trustee for Tenant (collectively, the "Trustee") in
any proceeding under Title 11 of the United States Bankruptcy Code relating
to Bankruptcy, as amended (the "Bankruptcy Code"), shall not seek or request
any extension of time to assume or reject this Lease or to perform any
obligations of this Lease which arise from or after the order of relief.
55
(b) If the Trustee proposes to assume or to assign this Lease
or sublet the Property (or any portion thereof) to any Person which shall
have made a bona fide offer to accept an assignment of this Lease or a
subletting on terms acceptable to the Trustee, the Trustee shall give
Landlord, and lessors and mortgagees of Landlord of which Tenant has notice,
written notice setting forth the name and address of such person and the
terms and conditions of such offer, no later than twenty (20) days after
receipt of such offer, but in any event no later than ten (10) days prior to
the date on which the Trustee makes application to the bankruptcy court for
authority and approval to enter into such assumption and assignment or
subletting. Landlord shall have the prior right and option, to be exercised
by written notice to the Trustee given at any time prior to the effective
date of such proposed assignment or subletting, to receive and assignment of
this Lease or subletting of the Property to Landlord or Landlord's designee
upon the same terms and conditions and for the same consideration, if any, as
the bona fide offer made by such person, less any brokerage commissions which
may be payable out of the consideration to be paid by such person for the
assignment or subletting of this Lease.
(c) The Trustee shall have the right to assume Tenant's
rights and obligations under this Lease only if the Trustee: (a) promptly
cures any Event of Default then existing or provides adequate assurance that
the Trustee will promptly compensate Landlord for any actual pecuniary loss
incurred by Landlord as a result of Tenant's default under this Lease; and
(c) provides adequate assurance of future performance under this Lease.
Adequate assurance of future performance by the proposed assignee shall
include, as a minimum, that: (i) any proposed assignee of this Lease shall
provide to Landlord an audited financial statement, dated no later than six
(6) months prior to the effective date of such proposed assignment or
sublease, with no material change therein as of the effective date, which
financial statement shall show the proposed assignee to have a net worth
reasonably satisfactory to Landlord or, in the alternative, the proposed
assignee shall provide a guarantor of such proposed assignee's obligations
under this Lease, which guarantor shall provide an audited financial
statement meeting the requirements of (i) above and shall execute and deliver
to Landlord a guaranty agreement in form and substance acceptable to
Landlord; and (ii) any proposed assignee shall grant to Landlord a security
interest in favor of Landlord in all furniture, fixtures, and other personal
property to be used by such proposed assignee in the Property. All payments
required of Tenant under this Lease, whether or not expressly denominated as
such in this Lease, shall constitute rent for the purposes of Title 11 of the
Bankruptcy Code.
(d) The parties agree that for the purposes of the Bankruptcy
code relating to (a) the obligation of the Trustee to
56
provide adequate assurance that the Trustee will "promptly" cure defaults and
compensate Landlord for actual pecuniary loss, the word "promptly" shall mean
that cure of defaults and compensation will occur no later than sixty (60)
days following the filing of any motion or application to assume this Lease;
and (b) the obligation of the Trustee to compensate or to provide adequate
assurance that the Trustee will promptly compensate Landlord for "actual
pecuniary loss." The term "actual pecuniary loss" shall mean, in addition to
any other provisions contained herein relating to Landlord's damages upon
default, obligations of Tenant to pay money under this Lease and all
attorneys' fees and related costs of Landlord incurred in connection with any
default of Tenant in connection with Tenant's bankruptcy proceedings).
(e) Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code shall be deemed, without
further act or deed, to have assumed all of the obligations arising under
this Lease and each of the conditions and provisions hereof on and after the
date of such assignment. Any such assignee shall, upon the request of
Landlord, forthwith execute and deliver to Landlord an instrument, in form
and substance acceptable to Landlord, confirming such assumption.
23.7 MANAGEMENT AGREEMENT. Tenant shall not enter into any
management agreement that provides for the management and operation of the
entire Property by an unaffiliated third party without the prior written
consent of Landlord.
ARTICLE 24
OFFICER'S CERTIFICATES AND OTHER STATEMENTS
24.1 OFFICER'S CERTIFICATES. At any time, and from time to time
upon Tenant's receipt of not less than ten (10) days' prior written request by
Landlord, Tenant will furnish to Landlord an Officer's Certificate certifying
that:
(a) this Lease is unmodified and in full force and effect (or
that this Lease is in full force and effect as modified and setting forth
the modifications);
(b) the dates to which the Rent has been paid;
(c) whether or not to the best knowledge of Tenant, Landlord is
in default in the performance of any covenant, agreement or condition
contained in this Lease and, if so, specifying each such default of which
Tenant may have knowledge;
(d) that, except as otherwise specified, there are no
proceedings pending or, to the knowledge of the signatory, threatened,
against Tenant before or by any court or administrative agency which, if
adversely decided, would
57
materially and adversely affect the financial condition and operations
of Tenant; and
(e) responding to such other questions or statements of fact as
Landlord shall reasonably request.
Tenant's failure to deliver such Officer's Certificate within
such time shall constitute an 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 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
58
subordination, Tenant shall execute promptly any certificate that Landlord
may request for such purposes.
25.2 TENANT'S NON-DISTURBANCE RIGHTS. So long as Tenant shall
pay all Rent as the same becomes due and shall fully comply with all of the
terms of this Lease and fully perform its obligations hereunder, none of
Tenant's rights under this Lease shall be disturbed by the holder of any
Landlord's Encumbrance which is created or otherwise comes into existence
after the Commencement Date.
25.3 FACILITY MORTGAGE PROTECTION. Tenant agrees that the
holder of any Landlord Encumbrance shall have no duty, liability or
obligation to perform any of the obligations of Landlord under this Lease,
but that in the event of Landlord's default with respect to any such
obligation, Tenant will give any such holder whose name and address have been
furnished Tenant in writing for such purpose notice of Landlord's default and
allow such holder thirty (30) days following receipt of such notice for the
cure of said default before invoking any remedies Tenant may have by reason
thereof.
ARTICLE 26
SALE OF FEE INTEREST
26.1 RIGHT OF FIRST OFFER TO PURCHASE. If Landlord intends to
sell the Property during the Lease Term, and provided no Event of Default
then exists, Tenant shall have a right of first offer to purchase the
Property ("Tenant's Right of First Offer to Purchase") on the terms and
conditions at which Landlord proposes to sell the Property to a third party.
Landlord shall give Tenant written notice of its intent to sell and shall
indicate the terms and conditions (including the sale price) upon which
Landlord intends to sell the Property to a third party. Tenant shall
thereafter have sixty (60) days to elect in writing to purchase the Property
and execute a Purchase and Sale Agreement with respect thereto and shall have
an additional fifty (50) days to close on the acquisition of the Property on
the terms and conditions set forth in the notice provided by Landlord to
Tenant; provided that prior to the execution of a binding purchase and sale
agreement, Landlord shall retain the right to elect not to sell the Property.
If Tenant 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
59
than as security for a debt, Landlord shall, upon the written assumption by
the transferee of the Property of all liabilities and obligations of the
Lease be released from all future liabilities and obligations under this
Lease arising or accruing from and after the date of such conveyance or other
transfer as to the Property. All such future liabilities and obligations
shall thereupon be binding upon the new owner.
ARTICLE 27
ARBITRATION
27.1 ARBITRATION. In each case specified in this Lease in
which it shall become necessary to resort to arbitration, such arbitration
shall be determined as provided in this Section 27.1. The party desiring
such arbitration shall give notice to that effect to the other party, and an
arbitrator shall be selected by mutual agreement of the parties, or if they
cannot agree within thirty (30) days of such notice, by appointment made by
the American Arbitration Association ("AAA") from among the members of its
panels who are qualified and who have experience in resolving matters of a
nature similar to the matter to be resolved by arbitration.
27.2 ARBITRATION PROCEDURES. In any arbitration commenced
pursuant to Section 27.1 a single arbitrator shall be designated and shall
resolve the dispute. The arbitrator's decision shall be binding on all
parties and shall not be subject to further review or appeal except as
otherwise allowed by applicable law. Upon the failure of either party (the
"non-complying party") to comply with his decision, the arbitrator shall be
empowered, at the request of the other party, to order such compliance by the
non-complying party and to supervise or arrange for the supervision of the
non-complying party. To the maximum extent practicable, the arbitrator and
the parties, and the AAA if applicable, shall take any action necessary to
insure that the arbitration shall be concluded within ninety (90) days of the
filing of such dispute. The fees and expenses of the arbitrator shall be
shared equally by Landlord and Tenant. Unless otherwise agreed in writing by
the parties or required by the arbitrator or AAA, if applicable, arbitration
proceedings hereunder shall be conducted in the State. Notwithstanding
formal rules of evidence, each party may submit such evidence as each party
deems appropriate to support its position and the arbitrator shall have
access to and right to examine all books and records of Landlord and Tenant
regarding the Property during the arbitration.
60
ARTICLE 28
MISCELLANEOUS
28.1 LANDLORD'S RIGHT TO INSPECT. Tenant shall permit
Landlord and its authorized representatives to inspect the Property during
usual business hours subject to any security, health, safety or
confidentiality requirements of Tenant or any governmental agency or
insurance requirement relating to the Property, or imposed by law or
applicable regulations. Landlord shall indemnify Tenant for all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against Tenant by reason of Landlord's
inspection pursuant to this Section 28.1.
28.2 BREACH BY LANDLORD. It shall be a breach of this Lease
if Landlord shall fail to observe or perform any material term, covenant or
condition of this Lease on its part to be performed and such failure shall
continue for a period of thirty (30) days after notice thereof from Tenant,
unless such failure cannot with due diligence be cured within a period of
thirty (30) days, in which case such failure shall not be deemed to continue
if Landlord, within said thirty (30)-day period, proceeds promptly and with
due diligence to cure the failure and diligently completes the curing
thereof. The time within which Landlord shall be obligated to cure any such
failure shall also be subject to extension of time due to the occurrence of
any Unavoidable Delay. In no event shall any breach by Landlord permit
Tenant to terminate this Lease or permit Tenant to offset any Rent due and
owing hereunder or otherwise excuse Tenant from any of its obligations
hereunder.
28.3 COMPETITION BETWEEN LANDLORD AND TENANT. Landlord and
Tenant agree that neither party shall be restricted as to other relationships
and competition. Affiliates of Tenant shall be allowed to own, lease and/or
manage other golf courses that are not affiliated with Landlord, provided
that such other ownership, leasing or management arrangements are disclosed
to Landlord in writing. Landlord may acquire or own golf courses that may be
geographically proximate to one or more golf courses that Tenant or
Affiliates of Tenant may own, manage or lease.
28.4 NO WAIVER. No failure by Landlord or Tenant to insist
upon the strict performance of any term hereof or to exercise any right,
power or remedy consequent upon a breach thereof, and no acceptance of full
or partial payment of Rent during the continuance of any such breach, shall
constitute a waiver of any such breach or of any such term. To the extent
permitted by law, no waiver of any breach shall affect or alter this Lease,
which shall continue in full force and effect with respect to any other then
existing or subsequent breach.
61
28.5 REMEDIES CUMULATIVE. To the extent permitted by law,
each legal, equitable or contractual rights, power and remedy of Landlord or
Tenant now or hereafter provided either in this Lease or by statute or
otherwise shall be cumulative and concurrent and shall be in addition to
every other right, power and remedy. The exercise or beginning of the
exercise by Landlord or Tenant of any one or more of such rights, powers and
remedies shall not preclude the simultaneous or subsequent exercise by
Landlord or Tenant of any or all of such other rights, powers and remedies.
28.6 ACCEPTANCE OF SURRENDER. No surrender to Landlord of
this Lease or of the Property or any part thereof, or of any interest
therein, shall be valid or effective unless agreed to and accepted in writing
by Landlord and no act by Landlord or any representative or agent of
Landlord, other than such a written acceptance by Landlord, shall constitute
an acceptance of any such surrender.
28.7 NO MERGER OF TITLE. There shall be no merger of this
Lease or of the leasehold estate created hereby by reason of the fact that
the same Person may acquire, own or hold, directly or indirectly, (a) this
Lease or the leasehold estate created hereby or any interest in this Lease or
such leasehold estate and (b) the fee estate in the Property.
28.8 QUIET ENJOYMENT. So long as Tenant shall pay all Rent as
the same becomes due and shall fully comply with all of the terms of this
Lease and fully perform its obligations hereunder, Tenant shall peaceably and
quietly have, hold and enjoy the Property for the Term hereof, free of any
claim or other action by Landlord or anyone claiming by, through or under
Landlord, but subject to all liens and encumbrances of record as of the date
hereof or any Landlord's Encumbrances.
28.9 NOTICES. All notices, demands, requests, consents,
approvals and other communications hereunder shall be in writing and
delivered or mailed (by registered or certified mail, return receipt
requested and postage prepaid), addressed to the respective parties, as set
forth below:
If to Landlord: Golf Trust of America, L.P.
00 Xxxxx Xxxxx'x Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: W. Xxxxxxx Xxxxx, XX
Xxxxx X. Xxxxxx
If to Tenant: Stonehenge Golf Development, LLC
00 Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
62
28.10 SURVIVAL OF CLAIMS. Anything contained in this Lease to
the contrary notwithstanding, all claims against, and liabilities of, Tenant
or Landlord arising prior to any date of termination of this Lease shall
survive such termination.
28.11 INVALIDITY OF TERMS OR PROVISIONS. If any term or
provision of this Lease or any application thereof shall be invalid or
unenforceable, the remainder of this Lease and any other application of such
term or provision shall not be affected thereby.
28.12 PROHIBITION AGAINST USURY. If any late charges provided
for in any provision of this Lease are based upon a rate in excess of the
maximum rate permitted by applicable law, the parties agree that such charges
shall be fixed at the maximum permissible rate.
28.13 AMENDMENTS TO LEASE. Neither this Lease nor any
provision hereof may be changed, waived, discharged or terminated except by
an instrument in writing and in recordable form signed by Landlord and Tenant.
28.14 SUCCESSORS AND ASSIGNS. All the terms and provisions of
this Lease shall be binding upon and inure to the benefit of the parties
hereto. All permitted assignees or sublessees shall be subject to the terms
and provisions of this Lease.
28.15 TITLES. The headings in this Lease are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
28.16 GOVERNING LAW. This Lease shall be governed by and
construed in accordance with the laws of the State (but not including its
conflict of laws rules).
28.17 MEMORANDUM OF LEASE. Landlord and Tenant shall, promptly
upon the request of either, enter into a short form memorandum of this Lease,
in form and substance satisfactory to Landlord and suitable for recording
under the State, in which reference to this Lease, and all options contained
herein, shall be made. Tenant shall pay all costs and expenses of recording
such Memorandum of Lease.
28.18 ATTORNEYS' FEES. In the event of any dispute between the
parties hereto involving the covenants or conditions contained in this Lease
or arising out of the subject matter of this Lease, the prevailing party
shall be entitled to recover against the other party reasonable attorneys'
fees and court costs.
28.19 NO THIRD PARTY BENEFICIARIES. Nothing in this Lease,
express or implied, is intended to confer any rights or
63
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.
28.19 NON-RECOURSE AS TO LANDLORD. Anything contained herein
to the contrary notwithstanding, any claim based on or in respect of any
liability of Landlord under this Lease shall be enforced only against the
Property and not against any other assets, properties or funds of (a)
Landlord, (b) any director, officer, general partner, limited partner,
employee or agent of Landlord, or any general partner of Landlord, any of
their respective general partners or stockholders (or any legal
representative, heir, estate, successor or assign of any thereof), (c) any
predecessor or successor partnership or corporation (or other entity) of
Landlord, or any of their respective general partners, either directly or
through either Landlord or their respective general partners or any
predecessor or successor partnership or corporation or their stockholders,
officers, directors, employees or agents (or other entity), or (d) any other
Person affiliated with any of the foregoing, or any director, officer,
employee or agent of any thereof.
28.20 NO RELATIONSHIP. Landlord shall in no event be construed
for any purpose to be a partner, joint venturer or associate of Tenant or of
any subtenant, operator, concessionaire or licensee of Tenant with respect to
the Property or any of the Other Leased Properties or otherwise in the
conduct of their respective businesses.
28.21 RELETTING. If Tenant does not exercise its option to
extend or further extend the Term under Section 3.2 or if an Event of Default
occurs, then Landlord shall have the right during the remainder of the Term
then in effect to advertise the availability of the Property for sale or
reletting and to show the Property to prospective purchasers or tenants or
their agents at such reasonable times as Landlord may elect.
64
LANDLORD: GOLF TRUST OF AMERICA, L.P.,
a Delaware limited partnership
By: GTA GP, Inc., a Maryland corporation
Its: General Partner
By: /s/ W. Xxxxxxx Xxxxx, XX
---------------------------------
W. Xxxxxxx Xxxxx, XX
President and CEO
TENANT: STONEHENGE GOLF DEVELOPMENT, LLC,
a South Carolina limited liability company
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Its: President
--------------------------------
65
