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EXHIBIT 10.19
RIGHT OF FIRST REFUSAL/OFFER AGREEMENT
THIS RIGHT OF FIRST REFUSAL/OFFER AGREEMENT ("AGREEMENT") is made
this _____ day of , 1998, by and among PRESIDIO GOLF TRUST, a Maryland real
estate investment trust (the "REIT"), PRESIDIO GOLF LIMITED PARTNERSHIP, a
Delaware limited partnership (the "OPERATING PARTNERSHIP") (either or both of
the REIT and the Operating Partnership are sometimes defined herein as the
"COMPANY"), and XXXXXX XXXXXX GOLF MANAGEMENT LLC, a Delaware limited liability
company ("XXXXXX MANAGEMENT").
R E C I T A L S:
A. The Operating Partnership owns and develops golf courses throughout
the United States.
B. The REIT is a self-administered real estate investment trust and the
general partner of the Operating Partnership.
X. Xxxxxx Management is one of the limited partners of the Operating
Partnership.
X. Xxxxxx Management desires to sell and grant to the Company, and the
Company desires to purchase and acquire from Xxxxxx Management, the rights of
first refusal and rights of first offer more specifically set forth below, upon
and subject to the terms and conditions hereinafter set forth.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and Xxxxxx Management hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. As used herein, the following terms shall have the
respective meanings indicated below:
(a) ACQUISITION NOTICE. As defined in Section 2.1(a) of this
Agreement.
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(b) AGREEMENT. This Right of First Refusal/Offer Agreement,
including the Exhibits attached hereto which are incorporated herein
and made a part hereof.
(c) APPROVED LESSEE. As defined in Section 2.1(e).
(d) COMPANY. As defined in the introductory paragraph of this
Agreement.
(e) CONTROLLED VENTURE. Any partnership, corporation, limited
liability company or other entity hereafter established by Xxxxxx
Management (i) in which Xxxxxx Management has a majority equity
ownership interest, and (ii) which is under the management control of
Xxxxxx Management. For purposes of this definition, "management
control" of a venture means the power, directly or indirectly, to
direct or cause the direction of management and policies of such
venture, whether through ownership of voting securities, by contract or
otherwise.
(f) XXXXXXX. Xxxxx X. Xxxxxxx, an individual.
(g) GOLF COURSE ACQUISITION PROPERTY. As defined in Section
2.1(a) of this Agreement.
(h) GOLF COURSE LEASE (ACQUISITIONS). As defined in Section
2.1(e) of this Agreement.
(i) GOLF COURSE LEASE (SALE). As defined in Section 3.1(d) of
this Agreement.
(j) GOLF COURSE SALE PROPERTY. As defined in Section 3.1(a) of
this Agreement.
(k) GROUND LEASE. Either (i) a lease with a term in excess of
twenty-five (25) years in length, inclusive of extension option
periods, (ii) a lease which is characterized as a "capital" lease
under generally accepted accounting principles, or (iii) a lease which
contains an option to purchase in favor of the lessee thereunder.
(l) XXXXXXX. Xxxxxx X. Xxxxxxx, an individual.
(m) NANULA. Xxxxx X. Xxxxxx, an individual.
(n) OFFER PERIOD. Any period during the Term of this Agreement
when any one of Nanula, Haworth, Xxxxxxx or any Principal of
Olympus holds the position of both (1) an executive officer or trustee
of the REIT and (2) an executive officer, director, member or
management board member of Xxxxxx Management.
(o) OLYMPUS. Olympus Real Estate Corporation.
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(p) OPERATING PARTNERSHIP. As defined in the introductory
paragraph of this Agreement.
(q) OTHER OWNERS. As defined in Section 2.1(a) of this
Agreement.
(r) XXXXXX MANAGEMENT. As defined in the introductory
paragraph of this Agreement.
(s) PRINCIPAL. Any person holding the position of (i)
chairman, (ii) trustee, (iii) general partner, (iv) director, (v)
president, (vi) vice president in charge of a principal business unit,
division or function, or (vii) any other officer who performs a policy
making function.
(t) REIT. As defined in the introductory paragraph of this
Agreement.
(u) RIGHT OF FIRST REFUSAL (ACQUISITIONS). As defined in
Article 2 of this Agreement.
(v) RIGHT OF FIRST OFFER (SALES). As defined in Article 3 of
this Agreement.
(w) TERM. The period commencing with the date hereof and
continuing until the fifteenth (15th) anniversary of the date hereof.
(x) SALE NOTICE. As defined in Section 3.1(a) of this
Agreement.
ARTICLE 2
RIGHT OF FIRST REFUSAL WITH
RESPECT TO PROSPECTIVE ACQUISITIONS
Xxxxxx Management hereby irrevocably grants to the Company the
exclusive right of first refusal ("RIGHT OF FIRST REFUSAL (ACQUISITIONS)") to
purchase or participate in the purchase of any completed or substantially
completed golf course property that Xxxxxx Management or any Controlled Venture
proposes to acquire, upon the terms and conditions hereinafter set forth in this
Article 2.
2.1 RIGHT OF FIRST REFUSAL (ACQUISITIONS).
(a) During the Offer Period, at any and each time that Xxxxxx
Management reaches substantial agreement with a prospective seller
respecting the basic business terms of a prospective acquisition
(whether by Xxxxxx Management individually or by a Controlled Venture)
of a completed or substantially completed golf course ("GOLF COURSE
ACQUISITION PROPERTY"), then Xxxxxx Management shall promptly notify
the Company of the same in
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writing ("ACQUISITION NOTICE"). The Acquisition Notice shall set forth
(i) the identity and location of the Golf Course Acquisition Property,
(ii) the proposed closing date, (iii) the purchase price, (iv) if the
proposed acquisition is to be made through a Controlled Venture, all of
the material terms of said Controlled Venture governing the
relationship between Xxxxxx Management and all other non-affiliated
equity owners (herein, the "OTHER OWNERS") in said venture, and (v) all
other economic terms upon which Xxxxxx Management (or the Controlled
Venture, as applicable) is prepared to acquire such Golf Course
Acquisition Property from the prospective seller. For purposes hereof,
a transaction structured as a newly created Ground Lease of a Golf
Course Acquisition Property, or a transaction structured as an
acquisition of an existing Ground Lease of a Golf Course Acquisition
Property, shall in each case be deemed an "acquisition" under this
Article 2.
(b) Xxxxxx Management agrees that during its negotiation of
the basic business terms of a prospective acquisition of a Golf Course
Acquisition Property, whether on its own behalf or on behalf of a
Controlled Venture, if Xxxxxx Management reasonably believes that such
Golf Course Acquisition Property meets the then investment criteria of
the Company, Xxxxxx Management shall disclose to the prospective seller
the existence of the Right of First Refusal (Acquisitions) described in
this Article 2 and shall utilize good faith efforts to have the
prospective seller agree that the Company may negotiate and/or acquire
the Golf Course Acquisition Property in lieu of Xxxxxx Management (or,
in the case of a Controlled Venture, that the Company may be
substituted, in lieu of Xxxxxx Management, as the controlling equity
owner in a comparable venture arrangement with the Other Owners, and
that said venture may thereafter negotiate and/or acquire the Golf
Course Acquisition Property in lieu of the Controlled Venture).
(c) The Company's Right of First Refusal (Acquisitions) shall
be exercisable by written notice from the Company to Xxxxxx Management
given not more than ten (10) business days after its receipt of the
Acquisition Notice, time being of the essence. If the Company so
exercises its Right of First Refusal (Acquisitions) with respect to the
Golf Course Acquisition Property specified in an Acquisition Notice,
then (i) if the proposed acquisition was directly by Xxxxxx Management,
the Company shall thereafter have the right to negotiate the final
terms of the acquisition directly with the prospective seller thereof
and acquire the Golf Course Acquisition Property directly from same,
and (ii) if the proposed acquisition was through a Controlled Venture,
(A) Xxxxxx Management shall cause the Other Owners to cooperate with
the Company in forming a new joint venture between the Company and the
Other Owners, upon the same terms as those governing the Controlled
Venture (as identified in the Acquisition Notice delivered to the
Company), and (B) the Company shall have the right to negotiate, on
behalf of the newly formed venture, the final terms of the acquisition
directly with the prospective seller and have the new venture acquire
the Golf Course Acquisition Property directly from same, all pursuant
to terms which are substantially similar to those contemplated by the
Acquisition Notice, and in each case subject to the terms of Section
2.1(e) below. Subject to the provisions of the immediately following
sentence, if the Company fails to notify Xxxxxx Management, in
writing, within
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the prescribed ten (10) business day period that it has exercised its
Right of First Refusal (Acquisitions) relative to the Golf Course
Acquisition Property specified in an Acquisition Notice, the Company's
rights under this Article 2 as to such Golf Course Acquisition Property
shall terminate, and Xxxxxx Management (or the Controlled Venture, as
applicable) shall have no further obligations under this Article 2 with
respect to such Golf Course Acquisition Property. If the Company fails
to exercise its option rights under this Section 2.1 within the
prescribed 10-business day period, and if thereafter during the Offer
Period, Xxxxxx Management substantially modifies the basic business
terms of the prospective acquisition of a Golf Course Acquisition
Property from those business terms which were theretofore set forth in
the applicable Acquisition Notice, then Xxxxxx Management shall
thereafter deliver a new Acquisition Notice to the Company, and the
Company shall thereafter again have a Right of First Refusal
(Acquisitions) with respect to the acquisition of the Golf Course
Acquisition Property specified in the new Acquisition Notice, all in
accordance with the terms hereof. For purposes of the foregoing, it is
understood that a purchase price which is less than ninety percent
(90%) of the purchase price set forth in an Acquisition Notice shall be
deemed a "substantial modification" of the basic terms of such
Acquisition Notice.
(d) If the Company has validly exercised its right to
negotiate for and acquire a Golf Course Acquisition Property specified
in an Acquisition Notice and thereafter either (i) does not, either
directly or through a new venture as described above, consummate the
acquisition of such Golf Course Acquisition Property within one hundred
twenty (120) days of the date of the applicable Acquisition Notice, (or
such longer period for closing as was set forth in the applicable
Acquisition Notice), or (ii) notifies Xxxxxx Management of its intent
not to acquire, either directly or through a new venture as described
above, such Golf Course Acquisition Property, then Xxxxxx Management
(or the Controlled Venture, as applicable) shall thereafter have the
right to acquire such Golf Course Acquisition Property free and clear
of any rights of the Company in same.
(e) The Company hereby agrees that upon consummation of its
acquisition of a Golf Course Acquisition Property specified in an
Acquisition Notice, either directly or through a new venture as
described above, it shall lease or sublease, as applicable ("GOLF
COURSE LEASE (ACQUISITION)"), such Golf Course Acquisition Property to
Xxxxxx Management, or any wholly owned affiliate thereof or any other
affiliate of Xxxxxx Management as may be designated by Xxxxxx
Management and as may be reasonably acceptable to the Company
(collectively, an "APPROVED LESSEE"), upon the following terms and
conditions.
(i) The economic terms of such Golf Course Lease
(Acquisition) shall conform with the terms listed on
Exhibit A attached hereto and made a part hereof,
and the balance of the Golf Course Lease
(Acquisition) provisions shall be substantially
similar to the provisions of that certain Lease dated
concurrently
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herewith by and between the Operating Partnership, as
lessor, and APGM Lessee LLC, as lessee, a copy of
which is attached hereto as Exhibit B.
(ii) If the Company exercises its option under this
Article 2 with respect to a Golf Course Acquisition
Property and if, within ten (10) business days
following delivery of the date of such exercise, the
Company and Xxxxxx Management have failed to agree
upon the economic terms of the applicable Golf Course
Lease (Acquisition) within the parameters described
in Exhibit A, then the Company shall continue to have
the right to pursue the acquisition of said Golf
Course Acquisition Property as provided in this
Article 2, either directly or through a new venture
as described above, provided that the Company shall
thereafter pay Xxxxxx Management, at the closing of
said acquisition, a finder's fee equal to the "Market
Brokerage Fee Rate" (as defined in Section
2.1(e)(iii) below) multiplied by the gross
acquisition price payable at closing for such Golf
Course Acquisition Property.
(iii) As used in this Agreement, the term "Market Brokerage
Fee Rate" shall mean the then market brokerage
commission rate reasonably determined by Xxxxxx
Management to be the rate which, when multiplied by
the gross acquisition price, establishes the market
brokerage commissions for third party brokers in
connection with the sale/purchase of golf course
properties comparable to the Golf Course Acquisition
Property (taking into consideration the quality and
location of the applicable golf course and other
comparable factors). Bona fide written proposals for
brokerage services received by Xxxxxx Management from
third party brokers relative to the sale of
comparable golf course properties may be used by
Xxxxxx Management as an indication of the Market
Brokerage Fee Rate. If the Company disagrees with
Xxxxxx Management's determination of the Market
Brokerage Fee Rate (which the Company must do, if at
all, in writing setting forth the Company's
determination of the Market Brokerage Fee Rate within
five (5) business days after notice of Xxxxxx
Management's determination thereof) and if the
parties cannot agree on the Market Brokerage Fee Rate
within ten (10) business days thereafter, then such
dispute shall be determined by arbitration as
hereinafter provided. Xxxxxx Management and the
Company will each select an unaffiliated arbitrator
who shall be a person that has been actively engaged
in the brokerage industry relative to the sale of
golf course properties for a period of not less than
two (2) years immediately preceding his or her
appointment. Xxxxxx Management and the Company shall
each simultaneously submit to the arbitrators a
determination of Market Brokerage Fee Rate (if no
submittal is made, the parties shall be deemed to
have submitted their original determinations). The
arbitrators shall be directed as promptly as possible
to select from the two determinations submitted by
Xxxxxx Management and the Company the one that is
closer to the Market
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Brokerage Fee Rate as determined by the arbitrators,
and said selection shall thereafter be deemed the
Market Brokerage Fee Rate. If the two arbitrators so
appointed fail to agree as to which of the two
determinations submitted by Xxxxxx Management and the
Company is closest to the actual Market Brokerage Fee
Rate, the two arbitrators shall appoint a third
arbitrator, using the criteria described above, to
decide upon which of the two determinations submitted
is closest to the actual Market Brokerage Fee Rate.
The out-of-pocket costs of the foregoing arbitration
process shall be borne by the party whose Market
Brokerage Fee Rate submittal was not selected. If no
determination is made prior to the date of closing
for the acquisition of said Golf Course Acquisition
Property, then Xxxxxx Management's determination
shall be used until the arbitration is completed. If
the Company's determination is later selected, Xxxxxx
Management shall refund any overpayments to the
Company.
ARTICLE 3
RIGHT OF FIRST OFFER WITH RESPECT TO PROSPECTIVE SALES
Xxxxxx Management hereby irrevocably grants to the Company the
exclusive right of first offer ("RIGHT OF FIRST OFFER (SALES)") to purchase any
completed or substantially completed Golf Course Acquisition Property which is
then owned by Xxxxxx Management or any Controlled Venture, upon the terms and
conditions hereinafter set forth in this Article 3.
3.1 RIGHT OF FIRST OFFER (SALES).
(a) During the Offer Period, at any and each time that Xxxxxx
Management (including any Controlled Venture) desires to sell a
completed or substantially completed golf course ("GOLF COURSE SALE
PROPERTY") to a prospective third party purchaser thereof, then, prior
to selling, or entering into a binding agreement to sell, such Golf
Course Sale Property, Xxxxxx Management shall notify the Company of the
same in writing ("SALE NOTICE"). The Sale Notice shall set forth (i)
the identity and location of the Golf Course Sale Property, (ii) the
proposed closing date, (iii) the sale price, (iv) the lease-back terms
(if applicable) and (v) all other economic terms upon which Xxxxxx
Management (or the applicable Controlled Venture) is prepared to sell
such Golf Course Sale Property to the prospective purchaser. For
purposes hereof, a newly created Ground Lease of a Golf Course Sale
Property, or a transfer of an existing Ground Lease of a Golf Course
Sale Property, shall in each case be deemed a "sale" under this Article
3.
(b) The Company's Right of First Offer (Sales) shall be
exercisable by written notice from the Company to Xxxxxx Management
given not more than ten (10) business days after its receipt of the
Sale Notice, time being of the essence. If the Company so exercises its
Right of First Offer (Sales) with respect to the Golf Course Sale
Property specified in a
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Sale Notice, such Golf Course Sale Property shall be sold to the
Company substantially as contemplated by the Sale Notice, with such
additional terms relating to such sale transaction as are described in
Section 3.1(c) below. Subject to the provisions of the immediately
following two sentences, if the Company fails to notify Xxxxxx
Management, in writing, within the prescribed ten (10) business day
period that it intends to acquire the Golf Course Sale Property
specified in a Sale Notice, the Company's rights under this Article 3
as to such Golf Course Sale Property shall terminate, and Xxxxxx
Management (or the Controlled Venture, as applicable) shall have no
further obligations under this Article 3 with respect to such Golf
Course Sale Property. In the event Xxxxxx Management (or the applicable
Controlled Venture) fails to close on the sale of the Golf Course Sale
Property specified in a Sale Notice to any third party purchaser
thereof within one hundred fifty (150) days of the date of the
applicable Sale Notice (as such period may be extended, if Xxxxxx
Management is then under contract to sell such Golf Course Sale
Property to a third party purchaser, which extension shall continue
until the termination of such contract or the closing of the sale
thereunder, whichever first occurs), then the Company shall thereafter
again have a Right of First Offer (Sales) with respect to the Golf
Course Sale Property specified in the Sale Notice, all in accordance
with the terms hereof. Further, if during the Offer Period, Xxxxxx
Management (or the applicable Controlled Venture) substantially
modifies the basic business terms of a prospective sale of a Golf
Course Sale Property from those business terms which were theretofore
set forth in a Sale Notice, then in such case, prior to Xxxxxx
Management (or the applicable Controlled Venture) selling or entering
into a binding agreement to sell the Golf Course Sale Property upon
such modified terms, Xxxxxx Management shall deliver a new Sale Notice
to the Company reflecting the modified business terms, and the Company
shall thereafter again have a Right of First Offer (Sales) with respect
to the sale of the Golf Course Sale Property specified in the new Sale
Notice, all in accordance with the terms hereof. For purposes of the
foregoing, it is understood that (1) a purchase price which is less
than ninety percent (90%) of the purchase price set forth in a Sale
Notice, or (2) if applicable, fixed rentals which when discounted to
present value at a seven percent (7%) discount factor, are greater than
one hundred ten percent (110%) of the fixed rentals set forth in any
lease-back provisions of a Sale Notice (as likewise discounted to
present value) shall, in each case, be deemed a "substantial
modification" of the basic business terms set forth in the Sale Notice.
(c) If the Company has validly exercised its right to acquire
a Golf Course Sale Property specified in a Sale Notice, then within
fifteen (15) business days after the request by either party, Xxxxxx
Management (or the applicable Controlled Venture) and the Company shall
enter into a written agreement confirming the terms, conditions and
provisions applicable to the sale of the Golf Course Sale Property
specified in the Sale Notice. Such written agreement shall contain
substantially identical terms as those specified in the applicable Sale
Notice and shall be otherwise substantially similar to that certain
Contribution Agreement heretofore entered into by and between Xxxxxx
Management, as seller, and the Operating Partnership (formerly known as
APGM Limited Partnership), as buyer, a copy of which is attached hereto
as Exhibit C.
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(d) If lease-back provisions are included as part of the terms
set forth in a Sale Notice, and if the Company has exercised its option
under this Section 3.1, then the Company hereby agrees that upon
consummation of its acquisition of a Golf Course Sale Property
specified in a Sale Notice, it shall lease or sublease, as applicable
("GOLF COURSE LEASE (SALE)"), such Golf Course Sale Property to Xxxxxx
Management or any other Approved Lessee designated by Xxxxxx
Management. The economic terms of such Golf Course Lease (Sale) shall
conform with the terms set forth in the Sale Notice and the balance of
the Golf Course Lease (Sale) provisions shall be substantially similar
to the provisions set forth in the Lease attached hereto as Exhibit B.
ARTICLE 4
MISCELLANEOUS PROVISIONS
4.1 FURTHER ASSURANCES. Each party to this Agreement agrees that at any
time and from time to time after the date hereof it will, at its own sole cost
and expense, immediately following the reasonable request of any other party
hereto, promptly execute, acknowledge (if necessary) and deliver or cause to be
promptly executed, acknowledged (if necessary) and delivered, such agreements,
certificates, statements, instruments, documents and directions, and promptly
take, or promptly cause to be taken, such other and further steps and actions,
in either case as may be required by law or as reasonably shall be deemed
necessary by such other party in order to more fully effect, evidence or carry
out the intent and purpose of this Agreement or as shall be essential to satisfy
the requirements of governmental agencies in order to carry out the intent of
this Agreement.
4.2 WAIVER. Except as otherwise may be expressly provided to the
contrary herein: (a) no failure to exercise or delay in exercising by any party
hereto of any right or remedy consequent upon a breach, and no failure to insist
upon or delay in insisting upon the strict performance, of any provision of this
Agreement shall constitute or operate as a waiver thereof or of any other right
or remedy or of any other provision hereof or of any subsequent breach of the
same or any other provision hereof, and such party shall retain all rights and
remedies provided for herein or now or hereafter existing at law or in equity
with respect to the same or any subsequent act or omission which constitutes
such breach or nonperformance; and (b) no partial exercise of any right or
remedy shall preclude any other or further exercise thereof or the exercise of
any other right or remedy provided for herein or now or hereafter existing at
law, in equity or otherwise. A waiver in one or more instances of any provision
hereof or breach thereof shall apply to the particular instance and
at the particular time only, and no such waiver shall be deemed a continuing
waiver. No provision of this Agreement to be performed or complied with by any
party, and no breach thereof, shall be waived, altered or terminated except by a
written instrument executed by the other parties hereto. No course of dealing
between the parties shall operate as a waiver of any of their respective rights,
powers or privileges under this Agreement.
4.3 TIME PERIODS. All time periods provided for herein shall refer to
calendar days; provided, however, that if the time of the performance of any
obligation under this Agreement expires
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on a Saturday, Sunday or legal holiday, the time for performance shall be
extended to the next succeeding day which is not a Saturday, Sunday or legal
holiday. As used herein, "business day" shall mean any day (other than a day
which is a Saturday, Sunday or legal holiday in the State of California or the
State of Texas) on which banks are open for business in San Francisco,
California and Dallas, Texas.
4.4 CAPTIONS. The captions of sections herein are inserted only for
convenience and are in no way to be construed as a part of this Agreement or as
a limitation of the scope of the particular sections to which they refer.
4.5 TIME. Time shall be of the essence in all things pertaining to the
performance of this Agreement.
4.6 ATTORNEYS' FEES. In the event any party hereto finds it necessary
to employ legal counsel or to commence litigation or other proceedings against
any other party hereto with respect to or on account of this Agreement, the
prevailing party shall be entitled to recover from the non-pre vailing party all
fees, charges, out-of-pocket costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements) incurred by the prevailing party
in connection with actual or contemplated enforcement of its rights and remedies
hereunder (which costs, expenses, fees and charges shall be included in the
amount of any judgment rendered).
4.7 AUTHORITY. The parties hereto each warrant and represent that they
have the power and authority to enter into this Agreement in the names, titles,
and capacities herein stated and on behalf of any entities, persons, estates or
firms represented or purported to be represented by such parties, and that all
formal requirements necessary or required by any municipal, state and federal
rules, regulations, orders, decrees, ordinances and laws in order for them to
enter into this Agreement have been fully satisfied.
4.8 SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 4.12
hereof, the terms and provisions of this Agreement shall be binding upon and
inure to, extend to, and be for the benefit of the assigns, successors and legal
representatives of the parties hereto.
4.9 ENTIRE AGREEMENT. This instrument shall represent the entire
agreement between the parties with respect to the rights of first refusal
referenced herein and it may not be changed except by written amendment duly
executed by all of the parties hereto.
4.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which together shall constitute one
and the same instrument. This Agreement shall become binding upon the parties
hereto when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all parties hereto.
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4.11 NOTICES. Any notice, demand or other communication which any party
may desire or may be required to give to any other party shall be in writing and
shall be deemed given (i) if and when personally delivered, (ii) on the first
(1st) business day after being sent by a nationally recognized overnight courier
addressed to a party at its address set forth below, or (iii) on the second
(2nd) business day after being deposited in United States registered or
certified mail, postage prepaid, addressed to a party at its address set forth
below, or to such other address as the party to receive such notice may have
designated to all other parties by notice in accordance herewith:
If to the REIT and/or the Operating Presidio Golf Trust
Partnership, to: Xxxxxxxx000, Xxxxxxxxxx Xxxxxx
Presidio Main Post, X.X. Xxx 00000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: President
Facsimile: 415/561-4680
If to Xxxxxx Management, to: Xxxxxx Xxxxxx Golf Management LLC
Xxxxxxxx000, Xxxxxxxxxx Xxxxxx
Presidio Main Post, X.X. Xxx 00000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: President
Facsimile: 415/561-4680
4.12 ASSIGNMENT. No party hereto shall have the right to assign this
Agreement, or any interest herein, to any other person or entity, without first
having obtained the prior written consent of each of the other parties hereto
(which consent may be withheld at such other parties' sole and exclusive
discretion).
4.13 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of ______________.
4.14 EXCULPATION.
(A) COMPANY. ANY OBLIGATION OR LIABILITY WHATSOEVER OF THE
COMPANY WHICH MAY ARISE AT ANY TIME UNDER THIS AGREEMENT OR ANY
OBLIGATION OR LIABILITY WHICH MAY BE INCURRED BY IT PURSUANT TO ANY
OTHER INSTRUMENT, TRANSACTION OR UNDERTAKING CONTEMPLATED HEREBY SHALL
BE SATISFIED, IF AT ALL, OUT OF THE COMPANY'S ASSETS ONLY. NO SUCH
OBLIGATION OR LIABILITY SHALL BE PERSONALLY BINDING UPON, NOR SHALL
RESORT FOR THE ENFORCEMENT THEREOF BE HAD TO, THE PROPERTY OF ANY OF
ITS LIMITED PARTNERS, SHAREHOLDERS, TRUSTEES, OFFICERS, EMPLOYEES OR
AGENTS (SOLELY AS A RESULT OF THEIR STATUS AS
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LIMITED PARTNERS, SHAREHOLDERS, TRUSTEES, OFFICERS, EMPLOYEES OR
AGENTS), REGARDLESS OF WHETHER SUCH OBLIGATION OR LIABILITY IS IN THE
NATURE OF CONTRACT, TORT OR OTHERWISE.
(B) XXXXXX MANAGEMENT. ANY OBLIGATION OR LIABILITY WHATSOEVER
OF XXXXXX MANAGEMENT WHICH MAY ARISE AT ANY TIME UNDER THIS AGREEMENT
OR ANY OBLIGATION OR LIABILITY WHICH MAY BE INCURRED BY IT PURSUANT TO
ANY OTHER INSTRUMENT, TRANSACTION OR UNDERTAKING CONTEMPLATED HEREBY
SHALL BE SATISFIED, IF AT ALL, OUT OF XXXXXX MANAGEMENT'S ASSETS ONLY.
NO SUCH OBLIGATION OR LIABILITY SHALL BE PERSONALLY BINDING UPON, NOR
SHALL RESORT FOR THE ENFORCEMENT THEREOF BE HAD TO, THE PROPERTY OF ANY
OF ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES OR AGENTS (SOLELY AS A
RESULT OF THEIR STATUS AS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES OR
AGENTS), REGARDLESS OF WHETHER SUCH OBLIGATION OR LIABILITY IS IN THE
NATURE OF CONTRACT, TORT OR OTHERWISE.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
REIT:
PRESIDIO GOLF TRUST, a Maryland Real Estate
Investment Trust
By: ____________________________________
Name:_______________________________
Its:________________________________
OPERATING PARTNERSHIP:
PRESIDIO GOLF LIMITED PARTNERSHIP, a
Delaware limited partnership
By: PRESIDIO GOLF TRUST, a Maryland Real
Estate Investment Trust, as
general partner
By:____________________________________
Name:_______________________________
Its:________________________________
XXXXXX MANAGEMENT:
XXXXXX XXXXXX GOLF MANAGEMENT
LLC, a Delaware limited liability company
By:____________________________________
Name:_______________________________
Its:________________________________
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EXHIBIT A
ECONOMIC TERMS OF GOLF COURSE LEASE (ACQUISITION)
1. Term: 15 years plus five 5-year renewal option periods.
2. Initial Base Rent: Between 9% and 10% of acquisition price.
3. Baseline Golf Course and Other Revenues: To be mutually agreed upon
4. Security Deposit: 12 months initial base rent.
A-1
15
EXHIBIT B
GOLF COURSE LEASE (ACQUISITION)
AND GOLF COURSE LEASE (SALE)
[Attached]
B-2
16
EXHIBIT C
CONTRIBUTION AGREEMENT
[Attached]
C-1
