Exhibit 10.13
FIRST AMENDMENT TO USE AND ACCESS AGREEMENT
FOR LELY GOLF VILLAS
THIS FIRST AMENDMENT TO USE AND ACCESS AGREEMENT FOR LELY
GOLF VILLAS ("Amendment") entered into as of this _____ day of May, 1999, by and
between GOLF ENTERPRISES, INC., a Kansas corporation (hereinafter referred to as
"GEI"), and LELY GOLF VILLAS I LIMITED PARTNERSHIP, a Delaware limited
partnership (hereinafter referred to as "LGV").
W I T N E S S E T H :
WHEREAS, GEI and LGV have previously entered into the Use and Access
Agreement for Lely Golf Villas, dated as of the 4th day of March, 1998, which is
recorded in Official Records Book 2398, at Page 0521, of the Public Records of
Xxxxxxx County, Florida ("Original Agreement"); and
WHEREAS, GEI and LGV have decided it is mutually beneficial to make the
changes and clarifications set forth in this Amendment.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. The recitals set forth in the above referenced preambles are
true and correct, and are incorporated herein by reference.
2. In the event of any conflict between this Amendment and the
Original Agreement, this Amendment shall control.
3. Unless otherwise defined in this Amendment, all terms used in
this Amendment shall have the meanings set forth in the
Original Agreement.
4. Section 1.1 G of the Original Agreement is hereby deleted and
replaced by the following:
"G. A Unit Owner whose Unit is in the rental program
shall be eligible for each person who fits in the
definition of Unit Owner or is otherwise entitled to
the benefits of a Unit Owner to play one (1) eighteen
(18) hole round of golf at the Golf Facilities for a
maximum of one hundred (100) rounds per Year (period
from November 1 through October 31 of the following
year), provided that no one individual shall be
entitled to play more than forty-two (42) times per
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Year (period from November 1 through October 31 of
the following year) under the following conditions:
(1) If his or her Unit is not occupied by a
Designated User renting the Unit through the
rental program, any person classified as a
Unit Owner or having the rights of a Unit
Owner, may make an advance reservation up to
one (1) year in advance, and will not be
required to pay a green fee. Such
reservation will be canceled if the Unit is
subsequently rented.
(2) If the Unit is occupied by a Designated
User, renting the Unit through the rental
program, the Unit Owner shall have no
advance reservation rights to play golf, but
shall be eligible to play on the stand-by
space available basis (i.e., no reservation
under this Agreement, even after tee time is
open to public) without payment of a green
fee. This play will count toward the one
hundred (100) play times and toward the
maximum of forty-two (42) per person.
(3) If the Unit Owner is scheduled to play one
(1) eighteen (18) hole round of golf at the
Golf Facilities the Unit Owner may play a
second eighteen (18) hole round if there is
space available at the actual tee-off time
without any reservation, without payment of
a green fee. The play will count toward the
one hundred (100) play times and towards the
maximum of forty-two (42) per person.
(4) Use under this Section G is limited during
the period from December 16 through April
15, during which time a Unit Owner(s) will
be able to use the Golf Facilities a maximum
of seven (7) days during any one (1) thirty
(30) day period and once all seven (7) days
have been used, the Unit Owner(s) must wait
ten (10) more days for before being eligible
for additional golf privileges, with the
exception that there may be one (1) period
of up to fourteen (14) days of use per year
within a particular thirty (30) day period
(in which case the Unit Owner may not use
the Golf Facilities for a period of ten (10)
days before and after the first and last day
of such use). If such Unit Owner(s) desires
to play golf at the Golf Facilities more
than one hundred (100) times for all of
those falling in the category of Unit Owner,
and more than forty-two (42) times for any
individual per year, the Unit Owner(s) may
do so, subject to the same reservation
privileges, as are applicable to the general
public. The published resort green fee will
be paid for such use in excess of one
hundred (100) rounds per all Owner(s) or
those classified as having the use rights of
Owner(s) and in excess of forty-two (42) per
individual as classified as an Owner during
the months of November through April. During
the months of May through
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October, from 1999 through 2004, no green
fee will be paid for such excess rounds.
Commencing in May of 2005, one- half (1/2)
of the published resort green fee will be
paid for such excess use during the months
of May through October."
5. Section 1.1 I(3) of the Original Agreement is hereby deleted
and replaced by the following:
"(3) The lowest rate charged for green fees on the day of
play shall be paid by LGV or Manager to GEI."
6. Section 1.2 is deleted in its entirety and replaced with the
following:
"1.2 Beach Hotel Guest Access. LGV or Manager may assign
some of its tee times to hotels located on the beach
in Xxxxxxx County in order to obtain beach access
from such hotels for individuals occupying the units.
Such assignment will enable tee times to be reserved
for beach hotel guests on the same terms as any other
Designated User. Use of any assigned tee times is
subject to all terms under this Agreement (including
notice under Section 1.D), and payment to GEI by LGV
or Manager of the published green fees and cart and
equipment rental fees for all players. Such
assignment shall not relieve LGV or Manager of the
obligation to pay all Annual License Fees."
7. Section 2.1 A all items (a) through (g) are modified by
deleting the word "July" and replacing it in each of items (a)
through (g) with "November."
8. Notwithstanding anything contained in the Original Agreement
to the contrary, GEI agrees that if the Initial License Fee
has been paid for a Unit, the failure to pay other Initial
License Fees shall not be a lien on such Unit or be the
grounds for terminating that Unit's access rights to the Golf
Facilities.
9. In Section 2.2 E on the fifth line, "2001" is deleted and
replaced by "2002".
10. GEI and LGV agree that Section 3.4 is modified to provide that
GEI shall commence construction of the clubhouse by May 15,
1999, and construction shall be completed not later than March
31, 2000, however, GEI agrees to use reasonable efforts to
complete construction by February 28, 2000.
11. In Section 5, after the end of the first sentence, insert an
additional sentence:
"GEI shall give LGV and Manager notice of any such closing,
which will impact their tee times as soon as practical after
the decision to have such closing has been made, failure to do
so will not expose GEI to damages."
12. Section 7.2 A. is modified to provide that, on the fourth line
on Page 22, to delete the date "October, 1998" and replace it
with "July, 1999".
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13. In Section 7.4 the second sentence is deleted in its entirety
and replaced with the following:
"The Transfer Fee shall be Five Thousand Dollars ($5,000.00),
which may be increased each year beginning on November 1, 2000
and annually thereafter by four percent (4%)".
14. Section 13 is modified to provide that, on the eight line, to
delete the date "July 1, 1999" and replace it with "December
31, 1999." Section 13 is also modified by adding an additional
sentence at the end of Section 13. "Notwithstanding anything
contained herein to the contrary as to Units and Unit Owners
GEI's lien rights shall only be applicable as to the payment
of Annual License Fees."
15. Section 14 relating to Temporary Clubhouse is modified to
provide that the temporary clubhouse shall be located on the
portion of the Lely Golf Villas property described on Exhibit
"A" to this Amendment, and such temporary clubhouse shall be
removed not later than March 31, 2000, provided however, GEI
agrees to use reasonable efforts to complete removal of the
temporary clubhouse by February 28, 2000, all at the cost and
expense of GEI. GEI agrees that it will pay all costs and fees
to LGV for LGV to amend its Site Development Plan 98-61B
("SDP") to allow the temporary use of the temporary clubhouse
at a cost of approximately Ten Thousand Six Hundred Dollars
($10,600.00), which shall be paid by GEI to LGV within ten
(10) days of execution of this Amendment. GEI acknowledges
that LGV has had to pay Two Thousand One Hundred Four Dollars
and Fifty/One Hundredths ($2,104.50) to repair a force main to
continue the force main service to the temporary clubhouse,
which amount shall be reimbursed by GEI to LGV within ten (10)
days of execution of this Amendment. GEI acknowledges that its
force main and water main which presently service the
temporary clubhouse are under the area that will be used for
LGV's or Manager's reservation check-in facility, which is
anticipated will be under construction prior to GEI ceasing
use of the temporary clubhouse. GEI agrees to pay the
reasonable cost of such relocation of its force main and water
main which cost is estimated to be approximately Five Thousand
Dollars ($5,000.00) to Ten Thousand Dollars ($10,000.00), upon
notice from LGV that it has expended such sum for relocating
in order to keep the temporary clubhouse in operation. GEI
also agrees if LGV is required to move other utility services
or other facilities in order to accommodate LGV's permanent
construction, in order to allow GEI to continue to use the
temporary clubhouse, that GEI shall reimburse LGV for all
reasonable costs relating to same. GEI also agrees that if in
using the temporary clubhouse, if it, its employees, agents or
guests damage LGV's improvements which have already been made
to the temporary clubhouse site or to other areas within LGV's
property, GEI shall immediately reimburse LGV for any costs
and expenses to repair such damages.
16. Except as specifically modified by this Amendment, the
Original Agreement shall remain in full force and effect. GEI
also agrees and acknowledges that the leasehold mortgage
encumbering the Golf Courses in favor of LGV and the mortgage
encumbering the clubhouse property in favor of LGV shall
remain in full force and effect, and are not modified by this
Amendment, except as the Original Agreement
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is modified by this Amendment. GEI acknowledges that this
Amendment does not, in any manner, release LGV's rights under
such mortgages.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
Signed, Sealed and Delivered in the
Presence of:
GOLF ENTERPRISES, INC., a Kansas
corporation
By:
Witness XXXXXXXX X. XXXXX
Print Name: Vice President/General Counsel
(Corporate Seal)
Witness
Print Name:
STATE OF CALIFORNIA )
)ss
COUNTY OF LOS ANGELES )
The foregoing Amendment was acknowledged before me this ____ day of
May, 1999, by XXXXXXXX X. XXXXX, as Vice President/General Counsel of GOLF
ENTERPRISES, INC., a Kansas corporation, who is personally known to me or
produced ____________________________________ as identification.
NOTARY PUBLIC, State of California, at Large
Name:
Commission Number:
Commission Expires:
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LELY GOLF VILLAS I LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: RONTO GOLF DEVELOPMENTS,
Witness INC., a Florida corporation, one of its
Print Name: General Partners
By:
A. XXXX XXXXXXX
Witness President
Print Name:
(Corporate Seal)
STATE OF FLORIDA )
)ss
COUNTY OF XXXXXXX )
The foregoing Amendment was acknowledged before me this ____ day of
May, 1999, by A. XXXX XXXXXXX, as President of RONTO GOLF DEVELOPMENTS, INC., a
Florida corporation, one of the General Partners of LELY GOLF VILLAS I LIMITED
PARTNERSHIP, a Delaware limited partnership, who is personally known to me or
produced ____________________________________ as identification.
NOTARY PUBLIC, State of Florida, at Large
Name:
Commission Number:
Commission Expires:
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