Exhibit 10.5
AGREEMENT
THIS AGREEMENT is made this 10 day of January, 1985, by and between
PGA TOUR, INC., a Maryland corporation ("TOUR"), and LANDMARK LAND COMPANY OF
CALIFORNIA, INC., a Delaware corporation ("LANDMARK").
PREAMBLE
WHEREAS, LANDMARK presently owns or controls approximately 2200
acres of land located in La Quinta, California, commonly known as the Xxxxxxx
and Ahmanson Ranches, which land is outlined in red on Exhibit A attached hereto
and made a part hereof (the "Original Property"); and
WHEREAS, in the event that LANDMARK acquires real property adjacent
to the Original Property (the "Adjacent Property") and in the further event that
LANDMARK determines, in its sole discretion, that the Adjacent Property shall be
included within, and made a part of, LANDMARK's "PGA West" project, then and in
that event the Adjacent Property shall be considered, for the purposes of this
Agreement, to be included within, and treated the same as, the Original Property
(collectively, the "Property"); and
WHEREAS, LANDMARK intends to develop and operate the Property by,
among other things, constructing and selling residential, commercial, hotel,
office and other facilities and, incidental thereto, developing and operating
golf courses and related golf facilities; and
WHEREAS, TOUR and LANDMARK desire to enter into an agreement
relating to certain matters involving the development and operation of the
Property, including, among other things, (a) use of TOUR trademarks and/or
service in connection with sales, promotion, advertising and development of the
Property; (b) the construction and operation by LANDMARK of a golf course and
related facilities to be designated a "Tournament Players Club" (the "TPC") on a
portion of the Property; and (c) the holding of certain TOUR events at the TPC
or other golf clubs owned by LANDMARK;
NOW THEREFORE, TOUR and LANDMARK agree as follows:
1. Definitions. Terms defined in the introductory paragraph and
Preamble to this Agreement shall have the meanings assigned to them therein and
the following terms shall have the following meanings:
"Classic" means the nationally televised Xxx Xxxx Classic or any
nationally televised successor event that directly replaces the Xxx Xxxx Classic
on the PGA TOUR schedule. In the event that the Classic is not nationally
televised during any
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year, then the event shall not be considered the "Classic" for that particular
year.
"Clubs" means the La Quinta Hotel Golf & Tennis Resort (Dunes Course
only), the Mission Hills Golf Club (excluding the "Old Course") and the TPC. In
the event that LANDMARK sells, transfers, conveys or otherwise loses control of
one or more of the aforementioned clubs, then that club or clubs, as the case
may be, shall thereafter be excluded from the definition of "Clubs."
"Commercial Unit" means each one-third acre of the Property
(excluding that portion of the Property located within the "Resort Core" of the
"PGA West" project) that is sold or leased (for a term in excess of one year) by
LANDMARK to an unrelated third party for office, retail and/or other commercial
purposes. In the event that LANDMARK sells or leases portions of the aforesaid
commercial land in units of other than one-third of an acre, then, for the
purposes of this Agreement, a partial Commercial Unit shall be created which may
be aggregated with subsequently created partial Commercial Units for purposes of
the payment of fees pursuant to subparagraph 5.a herein.
"Computation Date" means the earlier of (a) the date on which all of
the Residential Lots/Units (as hereinafter defined) have been sold and all
Commercial Units have been sold or leased, (b) January 1, 2006, or (c) the date
on which this Agreement is terminated pursuant to the terms hereof.
"Facilities" means, with respect to a golf club, the golf course,
driving range, putting green and practice area at the club, all clubhouse,
parking and maintenance facilities at the club and all other facilities directly
connected with the club.
"Golf Facilities" means all golf clubs on the Property including all
Facilities directly associated therewith.
"Major Event" means either the nationally televised "Skins Game" or
another nationally televised PGA TOUR event acceptable to LANDMARK in its sole
discretion. In the event that a Major Event is not nationally televised during
any year, then the event shall not be considered to be a "Major Event" for that
particular year.
"Offer Documents" means a document or documents setting forth an
offer acceptable to LANDMARK from a third party to purchase or otherwise
acquire, or an offer by LANDMARK to sell, the Golf Facilities or any material
portion thereof or estate or interest therein.
"Other Tournament Players Clubs" means the Tournament Players Club
at Sawgrass, the Tournament Players Club at Eagle Trace, the Tournament Players
Club at Plum Creek and such other
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Tournament Players Clubs as TOUR may designate from time to time in its
discretion.
"PGA" means the Professional Golfers' Association of America.
"Qualifying Tournament" means the TOUR (Regular Tour) Qualifying
Tournament.
"Residential Lots/Units" means residential lots and residential
units hereinafter constructed or developed by LANDMARK on the Property.
Residential Lots/Units shall not include real property or improvements which are
or shall be utilized for hotel/motel or other transient accommodations, rental
apartment use or the like.
"Super Bowl Event" means a nationally televised, season-ending
championship such as the "Super Bowl of Golf" event currently being proposed by
NBC.
"Termination Date" means the earlier of (a) the date twenty years
after the Computation Date, or (b) the first date subsequent to the Computation
Date on which neither the Classic, the Super Bowl Event nor a Major Event is
held at a Club, or (c) the date of termination of this Agreement pursuant to the
terms hereof.
"TOUR Marks" means the TOUR trademarks and/or service marks set
forth on Exhibit B hereto.
"TPC Facilities" means the golf facilities to be included as a part
of the TPC, which facilities shall include an 18-hole championship "Stadium
Golf" course, a clubhouse, two (2) driving ranges, other appropriate
tournament-related features such as VIP and general parking areas, a suitable
press room area, a television pad, a tournament administration area, electric
scoreboard foundations and on-course electrical wiring and other facilities
directly connected with the TPC.
"The Vintage Invitational" means The Vintage Invitational Senior PGA
Tour event now held at The Vintage Club in Indian Xxxxx, California.
2. The TPC.
(a) Completion of TPC Facilities. LANDMARK shall endeavor to
complete construction of the TPC Facilities to TOUR's reasonable satisfaction by
January 1, 1986, or, if delays beyond the reasonable control of LANDMARK (i.e.,
as a result of labor strikes, equipment unavailability, weather conditions,
governmental approvals, etc.) make completion of the TPC Facilities to TOUR's
reasonable satisfaction by January 1, 1986, impracticable, as soon as reasonably
practicable thereafter; provided, however, that if for any reason construction
of the TPC
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Facilities is not completed to TOUR's reasonable satisfaction by January 1,
1987, TOUR shall have the option on or prior to March 1, 1987, to terminate this
Agreement, without liability or further obligation, providing written notice to
LANDMARK before such date. In the event that construction of the TPC Facilities
is not completed to TOUR's reasonable satisfaction by January 1, 1988, on
account of delays beyond the reasonable control of LANDMARK, LANDMARK shall have
the option on or prior to March 1, 1988, to terminate this Agreement without
liability or further obligation by providing written notice to TOUR before such
date.
(b) Approval of Design of TPC Facilities. Prior to the beginning of
construction of the TPC Facilities, LANDMARK shall submit to TOUR for TOUR's
reasonable approval the proposed design for the TPC Facilities. TOUR shall have
thirty (30) days after receipt of such proposed design during which to approve
or disapprove thereof. If TOUR fails to notify LANDMARK of its disapproval of
the proposed design within such thirty (30)-day period, TOUR shall be deemed to
have approved of such proposed design. In the event TOUR notifies LANDMARK of
its disapproval of the proposed design for the TPC Facilities within such thirty
(30)-day period, LANDMARK shall make such changes to the proposed design as TOUR
may reasonably request; notwithstanding, if LANDMARK and TOUR are unable to
agree on the proposed design of the TPC Facilities within ninety (90) days after
the submission to TOUR of the proposed design, either LANDMARK or TOUR shall
have the right and option, for a period of sixty (60) days after the expiration
of the abovesaid ninety (90)-day period, to terminate this Agreement.
(c) Approval of TPC-Related Documents. LANDMARK shall submit to TOUR
for TOUR's reasonable approval, all proposed TPC rules and regulations,
membership documents, and membership applications. TOUR shall have fourteen (14)
days after receipt of any such proposed documents during which to approve or
disapprove thereof. If TOUR fails to notify LANDMARK of its disapproval of any
such proposed documents within such fourteen (14)-day period, TOUR shall be
deemed to have approved of such documents. In the event TOUR notifies LANDMARK
of its disapproval of any such proposed documents within such fourteen (14)-day
period, LANDMARK shall make such changes to such documents as TOUR may
reasonably request; notwithstanding, in the event that LANDMARK and TOUR are
unable to agree on such documents within ninety (90) days after the submission
to TOUR of such documents, either LANDMARK or TOUR shall have the right and
option, for a period of sixty (60) days after the expiration of the abovesaid
ninety (90)-day period, to terminate this Agreement.
3. License With Respect To TOUR Marks.
(a) Grant of License. Subject to the terms and conditions contained
herein, TOUR hereby grants to LANDMARK during the term of this Agreement an
exclusive right and license
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to use the TOUR Marks in connection with the sales, promotion, advertising and
development of the Property, including the TPC. During the term of this
Agreement, TOUR will not permit any other golf course, resort or real estate
development located in the Palm Springs/Coachella Valley, California, area to
utilize any of the TOUR Marks in its name or to otherwise use any of the TOUR
Marks in connection with the advertising or promotion thereof.
(b) Prior Approval of Uses of TOUR Marks. All specific uses of the
TOUR Marks by LANDMARK shall be subject to the prior written approval of TOUR,
which approval shall not be unreasonably withheld. It is specifically agreed
that once a proposed use of the TOUR Marks is submitted to TOUR for approval,
such use shall be deemed approved unless TOUR reasonably disapproves same in
writing within fourteen (14) calendar days after submission of the proposed use.
TOUR agrees not to withhold its approval of any specific use of the TOUR Marks
unless the standard of quality of such use is clearly inferior to the standard
of quality of other uses now or hereafter licensed and/or approved by TOUR.
(c) Ownership of TOUR Marks. TOUR represents and warrants that it is
the proprietor of the TOUR Marks and has the right to license, on an exclusive
basis, the TOUR Marks as provided herein. LANDMARK acknowledges that TOUR is the
proprietor of the TOUR Marks, that all of its uses of the TOUR Marks pursuant to
this Agreement shall inure to the benefit of TOUR, and that it is not acquiring
any interest or rights in the TOUR Marks apart from the rights set forth herein.
LANDMARK will not contest or deny the validity of the TOUR Marks or the title of
TOUR thereto. Upon termination of this Agreement for any reason, LANDMARK shall
forthwith discontinue entirely all use of the TOUR Marks and all rights granted
herein shall revert to TOUR.
(d) Ownership of LANDMARK Marks. TOUR acknowledges that LANDMARK is
the proprietor of certain trademarks and/or service marks, including without
limitation, the "Oak Tree" trademark, (hereinafter the "LANDMARK Marks"), that
any uses of the LANDMARK Marks pursuant to this Agreement shall inure to the
benefit of LANDMARK, and that TOUR is not acquiring any interest or rights in
the LANDMARK Marks of whatsoever kind or nature. TOUR further agrees that it
will not contest or deny the validity of the LANDMARK Marks or the title of
LANDMARK thereto.
(e) TOUR Members. LANDMARK acknowledges that TOUR does not have the
right to use the name, signature, photograph or likeness of any TOUR member.
LANDMARK agrees that it will not exercise the rights granted herein in any
manner that constitutes or implies an endorsement of LANDMARK, the Property or
the TPC by a TOUR member without having obtained proper advance authorization
from such member.
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(f) Indemnification. LANDMARK agrees to indemnify TOUR and its
members, officers, directors, agents and employees, and to hold each of them
harmless from and against any and all claims, demands, causes of action, losses,
damages, expenses, judgments, awards or liabilities that any of them may incur
as a result of any third party claim resulting from any action or inaction by
LANDMARK which directly relates to the use by LANDMARK of the TOUR Marks
pursuant to the terms of this Agreement. TOUR will notify LANDMARK promptly upon
receipt of notice of any such claim, demand or cause of action and LANDMARK will
assume responsibility therefor (including the hiring of counsel) and conduct the
defense thereof on TOUR's behalf or on behalf of the person to be indemnified;
provided, that TOUR or the person to be indemnified shall have the right to
employ counsel at its or his own expense, who shall have the right to consult
with the counsel hired by LANDMARK regarding disposition of the claim, demand or
cause of action. TOUR's obligation under this subsection shall survive the
termination of this Agreement.
Notwithstanding the above, TOUR agrees to indemnify LANDMARK and its
approved sublicensees, officers, directors, agents and employees, and to hold
each of them harmless from and against any and all claims, demands, causes of
action, losses, damages, expenses, judgments, awards or liabilities arising from
trademark infringement or other similar claims relating to the right of TOUR to
license the TOUR Marks or to the right of LANDMARK to use the TOUR Marks as
authorized in this Agreement. LANDMARK will notify TOUR promptly upon receipt of
notice of any such claim, demand or cause of action and TOUR will assume
responsibility therefor (including the hiring of counsel) and conduct the
defense thereof on LANDMARK's behalf; provided, that LANDMARK shall have the
right to employ counsel at its one expense, who shall have the right to consult
with the counsel hires by TOUR regarding disposition of such claim, demand or
cause of action. TOUR's obligation under this subsection shall survive the
termination of this Agreement.
4. The Events.
(a) 1984-1986 Qualifying Tournaments. Subject to the terms and
conditions of this Agreement, at least two (2) out of three (3) years during the
three (3)-year period from 1984 through 1986, TOUR shall hold the Qualifying
Tournament at one or more of the Clubs. TOUR shall have the right to select the
particular years in which the Qualifying Tournament will be held at the Clubs.
In addition, for each Qualifying Tournament held at one of the Clubs during such
three (3)-year period, TOUR shall have the right, subject to prior booking of
events at the Clubs, to select (a) the Club at which the Qualifying Tournament
will be held and (b) the play dates for the Qualifying Tournament. TOUR will
provide LANDMARK with at least six (6) months' prior written notice of the
intended play dates and location for each Qualifying Tournament to be played at
one of the Clubs. In the event such play dates are not available at such Club,
LANDMARK
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shall promptly so notify TOUR and TOUR shall have the right to select an
alternate Club and/or alternate play dates.
(b) 1987 and Subsequent Qualifying Tournaments. Subject to the terms
and conditions of this Agreement and provided the TPC Facilities are completed
to TOUR's reasonable satisfaction, TOUR shall hold the Qualifying Tournament at
the TPC at least two (2) out of three (3) years during the three (3)- year
period from 1987 through 1989, and at least two (2) out of the three (3) years
during each subsequent three (3)-year period. TOUR shall have the right to
select the particular years in which the Qualifying Tournament will be held at
the TPC. In addition, for each Qualifying Tournament held at the TPC pursuant to
this subsection b, TOUR shall have the right, subject to prior booking of events
at the TPC, to select play dates. TOUR shall provide LANDMARKS with at least six
(6) months prior written notice of the intended play dates for the Qualifying
Tournament. In the event such play dates are not available, LANDMARK shall
promptly so notify TOUR and TOUR shall have the right to select alternate play
dates.
(c) Classic/Super Bowl/Major Event. Subject to the terms and
conditions of this Agreement, TOUR shall use its best efforts to have the
Classic, Super Bowl and/or Major Events (the "Events") played at the TPC, on an
annual basis, beginning in 1986. TOUR shall have the right, subject to prior
bookings of events at the TPC, to select play dates for the Events played at the
TPC, provided that TOUR shall provide LANDMARK with at least six (6) months'
prior written notice of such play dates. Nothing contained in this Agreement
shall be construed as requiring TOUR to retain the Classic a current format,
personnel, charities, name or other similar details normally within TOUR's
discretion.
(d) Senior TOUR Event. Subject to the terms and conditions hereof,
in the event The Vintage Invitational is discontinued by its current sponsors,
LANDMARK shall have the option of having a Senior TOUR event held at the TPC.
Upon becoming aware that The Vintage Invitational is to be discontinued by its
current sponsors, TOUR shall provide notice thereof to LANDMARK. For thirty (30)
days after receipt of such notice, LANDMARK shall have the option of notifying
TOUR that it desires to hold a Senior TOUR event at the TPC. Provided LANDMARK
so notifies TOUR, TOUR and LANDMARK shall negotiate in good faith toward
entering into an agreement for the holding of a Senior TOUR event at the TPC,
which agreement shall contain such terms and conditions as TOUR and LANDMARK may
mutually agree. In the event that TOUR and LANDMARK are unable to mutually agree
on the terms and conditions of such agreement within ninety (90) days after
receipt by LANDMARK of the notice that The Vintage Invitational is to be
discontinued by its current sponsors, then TOUR shall have the right to hold the
tournament elsewhere.
(e) Use of Facilities. For each golfing event to be held at a Club
pursuant to paragraph 4 of this Agreement,
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LANDMARK shall make the Facilities at such Club available, on a non-exclusive
basis, to TOUR and a reasonable number of its guests, invitees and licensees,
free of charge, one week prior to the start and during all play days of such
event. Notwithstanding the above, TOUR's use of the golf course(s) on which such
event is played, together with a driving range, locker room, and such other
Facilities at the Club holding such event as may be mutually agreed upon between
the parties, shall be exclusive during the play days of any TOUR event.
(f) Administration, Costs and Revenues. Except as otherwise provided
by this Agreement or expressly agreed by TOUR and LANDMARK, as between TOUR and
LANDMARK, TOUR shall be responsible for the administration of and all costs
associated with the conduct of each of the golf events contemplated by paragraph
4 of this Agreement and shall be entitled to receive and retain all revenues
from admissions, parking, concessions and other sources arising therefrom.
Notwithstanding, revenues from the sales of goods, merchandise, food and
beverages from within the golf clubhouse(s) shall be the sole property of
LANDMARK.
(g) Use of Other Clubs. For each golf event contemplated by
paragraph 4 of this Agreement that is to be played at the TPC, TOUR shall have
the right, subject to prior commitments by LANDMARK, to use any or all
Facilities of other golf clubs located on the Property for use in connection
with such event provided TOUR gives LANDMARK not less than six (6) months prior
written notice of its intention to so use such Facilities. In the event a Club
is unavailable for a golf event scheduled to be played thereat pursuant to this
Agreement for reasons beyond the control of LANDMARK (e.g., flooding) or the TPC
is unavailable for a golf event scheduled to be played thereat pursuant to the
Agreement due to its not being completed to TOUR's reasonable satisfaction, TOUR
shall have the right, subject to prior commitments by LANDMARK, to use the
Facilities of any golf clubs located on the Property or the Facilities of any
other Club for such event. Any such use of alternate Facilities for an event
shall be on the same terms as specifies in this Agreement for use of the
originally scheduled Club for such event.
5. Payment of Fees by LANDMARK.
(a) Payment Upon Sales of Residential Lots/Units or Sales or Leases
of Commercial Units. LANDMARK agrees to pay to TOUR, in consideration for the
rights granted to LANDMARK and the obligations assumed by TOUR hereunder, the
sums set forth on Exhibit C attached hereto and made a part hereof, which sums
shall be due and payable within thirty (30) days subsequent to a closing of a
sale by LANDMARK of a Residential Lot/Unit to an original retail unrelated third
party purchaser. Notwithstanding, sales of Residential Lots/Units to
developer(s) or builder(s) for further construction or development shall not be
deemed sales of Residential Lots/Units for the purposes of
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this paragraph; however, subsequent sales by such developer(s) or builder(s) of
fully improved residential units or residential lots to original retail third
party purchasers shall trigger the obligation of LANDMARK to pay to the TOUR the
sums set forth on Exhibit C.
In addition, LANDMARK agrees to pay unto TOUR the fees set forth on
Exhibit C at such time that a Commercial Unit is sold or leased to an original
unrelated third party. Such fee shall be due and payable unto TOUR within thirty
(30) days subsequent to (a) the closing of a sale by LANDMARK of a Commercial
Unit or (b) the commencement date of a lease having a tens in excess of one
year, which covers such Commercial Unit. Notwithstanding, LANDMARK shall not be
obligated to pay more than (a) one fee with respect to any Commercial Unit or
(b) sixty fees with respect to all Commercial Units, provided, however, that if
additional Commercial Units are added to the sixty that are presently
contemplated (as a result of additions to the Property or otherwise), then the
maximum limit of sixty fees shall be increased by the number of such additional
Commercial Units. As partial Commercial Units are sold or leased, they shall be
aggregated and fees to TOUR for a full Commercial Unit shall become payable
within thirty (30) days subsequent to the sale or lease (as the case may be) of
the last additional partial Commercial Unit(s) necessary to form a complete
Commercial Unit.
In addition, beginning in the calendar year 1986, and continuing
each successive year thereafter until the Computation Date, LANDMARK shall
guarantee that, by the end of each such calendar year, the TOUR will have
received from fees generated from sales and leases as aforesaid, on a cumulative
basis, the sums set forth on Exhibit D attached hereto and made a part hereof.
In the event sales of Residential Lots/Units and sales and leases of Commercial
Units do not generate such guaranteed sums, then LANDMARK shall pay to the TOUR
such monies as may be necessary to cover the amount so guaranteed for that
particular year; and such monies so paid by LANDMARK shall be credited to sums
due from LANDMARK on sales of Residential Lots/Units and on sales and leases of
Commercial Units occurring during subsequent years.
(b) Fees After Computation Date. Provided the Classic, the Super
Bowl Event and/or a Major Event is being held on the Property on an annual basis
as of the Computation Date, LANDMARK shall pay TOUR either:
(1) $50,000 in cash each year during which a Major Event (but no Classic
or Super Bowl Event? is heft on the Property, or
(2) $100,000 in cash each year during which the Classic or the Super
Bowl Event is held on the Property (whether or not a Major Event is
held on the Property),
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on December 31 of such year, beginning in the year during which the Computation
Date occurs and continuing until the Termination Date; however, in no event
shall LANDMARK be required to make more than twenty (20) such annual payments to
TOUR. The annual payment shall be pro-rated for partial calendar years and in
the event that TOUR receives any payments from LANDMARK with respect to sales of
Residential Lots/Units or sales or leases of Commercial Units between the
Computation Date and the Termination Date, then all such payments shall be
credited to the annual payments set forth in this subparagraph 5.b.
6. Inspection Rights. TOUR shall have the right, during business
hours and upon at least twenty-four (24) hours' prior written notice to
LANDMARK, to inspect the Golf Facilities as well as other facilities owned by
LANDMARK as to which TOUR Marks are used by LANDMARK or its sublicensees. In the
event TOUR reasonably determines that the Golf Facilities or such other
facilities, or goods sold or services performed at the Golf Facilities or such
other facilities, do not meet reasonable TOUR standards of quality, TOUR may so
notify LANDMARK, in writing, of those items to which it specifically objects in
order that LANDMARK may take such steps as are reasonably necessary to cure such
objections, provided that TOUR hereby agrees that it shall not unreasonably
object to any such goods or services or otherwise unreasonably exercise its
quality review powers hereunder.
7. Promotion of Association. TOUR shall use best efforts to promote
its association with the golf clubs and other developments presently or
hereafter located on the Property so as to further the success of Such
developments. TOUR shall make reasonable use of periodicals and other mediums of
public exposure at its disposal to effectuate such promotion.
8. Use of Facilities. All exempt TOUR members shall have a
non-exclusive right [subject to rules and regulations of the golf club(s)] to
use the golf clubhouse facilities at the TPC and any other golf clubs located
upon the Property and shall be entitled to a twenty percent (20%) discount off
prevailing greens fees for all such clubs, provided that play by an exempt TOUR
member on the TPC golf course shall be considered a practice round for the
Classic or Major Event held or to be held at the TPC and such exempt TOUR member
shall be entitled to play on a priority basis without the payment of greens
fees. Exempt TOUR members shall be given priority with respect to the booking of
tee times on the TPC golf course. In the event a TOUR member desires to join the
TPC or other clubs located on the Property, such member shall be entitled to a
twenty percent (20%) discount off prevailing membership fees and dues of such
clubs.
9. Playing Privileges. Subject to the rules and regulations of "PGA
West", members of Other Tournament Players Clubs shall have playing privileges
at the TPC course. When playing at the TPC course, members of the Other
Tournament
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Players Clubs will be behind members of the PGA, the TOUR, and the other golf
clubs located on the Property, in priority of play (e.g., selection of tee
times) and shall pay the applicable use fees.
10. Furnished House. During the term of this Agreement, LANDMARK
shall provide TOUR with the exclusive use of a furnished house near the TPC (or
the proposed location of the TPC), which house shall be reasonably acceptable to
TOUR for use as living and office accommodations.
11. Sale of Golf Facilities.
(a) Right of First Refusal. In the event an offer acceptable to
LANDMARK is made by a third party to purchase or acquire, or LANDMARK offers to
sell, the Golf Facilities or any material portion thereof or material interest
therein, LANDMARK shall simultaneously deliver a copy of the Offer Documents
relating to such offer to TOUR. TOUR and PGA shall have the joint and several
right for a period of thirty (30) days after receipt of such Offer Documents to
elect to acquire the estate or interest in or to the Golf Facilities or portion
thereof designated in the Offer Documents on the terms set forth in the Offer
Documents by providing notice thereof to LANDMARK within such thirty (30)-day
period. In the event the consideration offered for an estate or interest in or
to the Golf Facilities or a portion thereof, as specified in the Offer
Documents, consists in whole or in part of consideration other than cash, TOUR
and/or PGA may pay such consideration by making a payment in cash equal to the
fair market value thereof. The first refusal rights of TOUR and PGA set forth in
this paragraph shall not apply to transfers of the Golf Facilities or any
portion thereof or interest therein (i) to any parent corporation of LANDMARK or
any subsidiary or subsidiary thereof, (ii) to members the membership of a "golf
club" or "country club" utilizing the Golf Facilities or portion thereof so
transferred, (iii) insofar as they relate to sales of merchandise, goods, food
or beverages, or (iv) insofar as they relate to any portion of the Golf
Facilities which LANDMARK reasonably does not deem necessary for the operation
of such golf club, i.e., outer portions of fairways required for residential
development.
(b) LANDMARK'S Right to Sell the Golf Facilities. In the event TOUR
and/or PGA fails to notify LANDMARK within thirty (30) days after its receipt of
Offer Documents of its desire to acquire the interest or estate in the Golf
Facilities or a portion thereof specified in the Offer Documents, LANDMARK shall
be free to sell such interest or estate in the Golf Facilities or portion
thereof to the transferee specified in the Offer Documents on substantially the
same terms as are set forth in the Offer Documents. Upon a sale of the Golf
Facilities or any portion thereof or interest therein by LANDMARK, the right of
first refusal in favor of TOUR and PGA, as set forth herein, shall immediately
cease and terminate.
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(c) PGA Subordination. It is understood and agreed between the
parties that PGA has a prior right of first refusal to purchase the Golf
Facilities pursuant to an agreement between LANDMARK and PGA dated March 5, 1984
("Prior First Refusal Right"). It is agreed that the Prior First Refusal Right
shall be superior to the right of first refusal granted herein to TOUR and PGA,
jointly, unless PGA agrees to subordinate the Prior First Refusal Right to the
first refusal right granted herein.
12. Term of Agreement. This Agreement shall become effective as of
the date hereof and shall terminate in all respects on the Termination Date
unless sooner terminated pursuant to the terms hereof.
13. Assignment. This Agreement may not be assigned by either party
hereto without the prior written approval of the other party, which approval
shall not be unreasonably withheld. Notwithstanding the above, either party
hereto may assign this Agreement to its parent corporation or any subsidiary or
sub- subsidiary thereof without the prior written consent of the other party. In
addition, notwithstanding the above, LANDMARK shall have the exclusive right and
option to sublicense the use of the TOUR Marks in connection with the
development of the Property pursuant to the terms and conditions of Article 3
hereof. In this regard, TOUR acknowledges that LANDMARK intends to sublicense
the TOUR Marks with respect to one or more hotels and other commercial office
and residential developments on the Property. In the event that LANDMARK
sublicenses the TOUR Marks pursuant to the terms and conditions of this
Agreement, TOUR agrees that it shall not hold LANDMARK responsible or liable for
any action or non-action taken by any such sublicensee in connection with its
use of the TOUR Xxxx(s), and TOUR further agrees that any such action or
non-action shall not adversely affect the validity of this Agreement; but TOUR
shall have, as its exclusive remedy, the right to proceed directly against such
sublicensee.
14. Unacceptable Change in TPC Management. In the event the
management of the TPC changes from LANDMARK to an unrelated third party not
acceptable to TOUR, TOUR may terminate this Agreement without any liability or
further obligation to LANDMARK by providing written notice to LANDMARK.
15. Notices. Any notices contemplated hereunder shall be given by
letter addressed to the respective addresses shown below by depositing such
letter in the United States mail, postage prepaid, return receipt requested; and
such notice shall be deemed received on the third day thereafter.
As to TOUR:
000 XXX Xxxxxxxxx
Xxxxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
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As to LANDMARK:
Xxxx Xxxxxx Xxx 0000
Xx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxx X. Xxxxxx, Xx., and
Xxxxxx X. Xxxxxxx
Any change of address by a party hereto shall be furnished to the other party by
notice as provided herein.
16. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of California.
17. Entire Agreement; Amendments. This Agreement contains the entire
agreement of the parties hereto with respect to the matters covered hereby and
may not be altered or amended except by a writing duly executed by both parties
hereto. This Agreement shall supersede all previous communications,
representations or agreements, either verbal or written, between the parties,
including the letter agreement dated January 23, 1984, between the parties.
18. Relationship of Parties. Nothing contained in this Agreement
shall be construed to make the parties hereto partners or joint venturers, or
either as an agent of the other. Neither party hereto shall have any power to
obligate or bind the other in any manner whatsoever except as expressly provided
herein. Subject to any restrictions of assignment contained herein, this
Agreement shall be binding on all legal representatives, successors or assigns
of either party.
19. Void or Unenforceable Provisions. If any provision or any
portion of any provision of this Agreement shall be held to be void or
unenforceable, the remaining provisions of this Agreement and the remaining
portion of any provision held void or unenforceable in part shall continue in
full force and effect.
20. No Recordation. Neither this Agreement nor any memorandum hereof
shall be recorded by either party hereto.
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21. Counterparts. This Agreement may be executed in one or more
separate counterparts, each of which, when so executed, shall be deemed an
original. Such counterparts shall together constitute and be one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized
representatives, have executed this Agreement as of the date first above
written.
PGA TOUR, INC.
By: _____________________________________
Xxxxx X. Xxxxx, Commissioner
LANDMARK LAND COMPANY OF
CALIFORNIA, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
