GROUND LEASE
Exhibit 10.21
THIS GROUND LEASE (“Lease”) is made and entered into as of this 27th day of May, 2003
(the “Effective Date”) by and between CROTCHED MOUNTAIN PROPERTIES, L.L.C., a New Hampshire limited
liability company, (herein referred to as “Landlord”) and S N H DEVELOPMENT, INC., a Missouri
corporation herein referred to as “Tenant”),
W I T N E S S E T H:
That in consideration of the rents, covenants and conditions herein set forth, Landlord and
Tenant do hereby covenant, promise and agree as follows:
1. Demised Premises. Landlord hereby demises unto Tenant and Tenant rents from
Landlord a certain parcel of land containing approximately three hundred fifty-one (351)
acres, more or less, (the “demised premises” or “Property”) which premises are located in
Hillsborough County, State of New Hampshire, together with all improvements, buildings,
structures, fixtures, parking lots, now or hereafter situated, placed, constructed or
installed on the demised premises, including without limitation, any additions to,
substitutions for, changes in or replacements of, the whole or any part thereof, and
including without limitation, any improvements constructed by Tenant (collectively, the
“Improvements”). The legal description of the demised premises is attached hereto as
Exhibit A. The demised premises and the Improvements are collectively referred to
herein as the “Property.”
2. Term And Options To Extend.
(a) Initial Term. The term of this Lease shall be for fifty (50) years commencing upon
the Commencement Date (defined in Section 39 below) and ending fifty (50) years following the
Commencement Date (the “Initial Term”).
(b) Option Period. Tenant shall have ten (10) options to extend the term of this Lease
for an additional period of fifteen (15) years each (hereinafter called an “Option Period”), such
extended term to begin upon the expiration of the Initial Term of this Lease or the previous Option
Period, as the case may be, and the same terms and conditions as herein set forth shall apply to
such extended term, except for the Annual Rent which shall be adjusted as set forth on Exhibit
B.
(c) Exercise of Option Period. If Tenant shall elect to exercise the Option Period, it
shall do so by giving written notice to Landlord not less than six (6) months, but no more than
twenty-four (24) months prior to the expiration of the Initial Term of this Lease or the previous
Option Period, as the case may be; notwithstanding the foregoing, if Tenant does not exercise the
Option Period in the time period or in the manner provided in this Section, the Option Period shall
nevertheless continue in full force and effect and shall not lapse until fifteen (15) days after
Tenant (and Tenant’s Leasehold Mortgagee (as defined in Section 22), if any) has received written
notice from Landlord that such deadline has passed and that Landlord has not received such notice.
(d) Definition of “Lease Term”. The phrase “Lease Term,” as used in this Lease, shall
mean the Initial Term of this Lease and any extension thereof pursuant to this Section 2.
3. Annual Rent — Additional Rent.
(a) Annual Rent. Tenant shall, commencing on the Commencement Date and continuing
thereafter during the Lease Term, pay to Landlord, at such place as Landlord shall designate in
writing, from time to time, and without demand therefor, the amounts set forth on Exhibit B
(“Annual Rent”), without abatement or set-off. Annual Rent shall be paid in semiannual installments
on the first day of April, and the first day of October; provided, however, in the event the
Commencement Date shall not be the first day of April, then the Annual Rent for such fractional
year shall be prorated on a daily basis and be due and payable on the Commencement Date. If the
rent to be paid is determined by the percentage of total gross revenues, then the difference
between the percentage, computed by reference to the period set forth in Exhibit B, and the fixed
amount shall be due and payable on the June 30th of the lease year during which the
reference period in Exhibit B shall occur.
(b) Additional Rent. All amounts which Tenant is required to pay pursuant to this
Lease (other than Annual Rent), together with any fine, penalty, interest and costs (including but
not limited to reasonable attorneys fees and costs) which may be added for nonpayment or late
payment thereof, shall constitute additional rent (referred to herein as “Additional Rent”). If
Tenant fails to pay any Additional Rent due under this Lease, then Landlord shall have the right to
pay the same and shall have all of the rights, powers and remedies with respect thereto as are
provided herein or by law in the case of nonpayment of Annual Rent
(c) Net Lease. All Annual Rent and Additional Rent under this Lease is absolutely net
to Landlord. All taxes, insurance, maintenance, repairs, assessments and other charges assessed,
levied or applied on, against or with respect to the Property, any part thereof, or with respect to
the use and/or operation of the Property shall be borne and paid by Tenant.
4. Real Estate Taxes.
(a) Payment. Commencing on the Effective Date, Tenant shall pay all ad valorem real
estate taxes and assessments attributable to the Property (“Taxes”) on or before the date that such
Taxes are due. Landlord shall forward to Tenant and shall be accompanied by a copy of the tax xxxx
or certificate and such additional information as Tenant may reasonably require establishing the
amount of Taxes due on the Property within ten days of receipt of such tax xxxx or certificate by
Landlord. For purposes of this paragraph, if any assessment is payable in installments, Tenant
shall have the right to pay any installment as and when such installment becomes due and payable.
Tenant’s liability for Taxes shall be prorated for the years in which this Lease commences and
terminates based on the number of days Tenant occupies the demised premises during such years.
Tenant shall deliver to Landlord copies of real estate tax paid receipts within thirty (30) days of
actual payment.
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(b) Challenge. Should either Landlord or Tenant initiate proceedings to contest the
validity or amount of any Taxes levied against the Property, the other party will cooperate in such
proceedings and should such proceedings be successful, Tenant shall be entitled to any tax refund
or future abatement, after deducting there from payment of all reasonable out-of-pocket expenses
incurred by Landlord in any such proceeding, with any abatement or refund of real estate taxes to
be shared by the Landlord and Tenant in proportion to the adjustment attributable to the Property,
to the benefit of the Tenant, and to other property included in the same tax xxxx or assessment
lot, retained by the Landlord, to the benefit of the Landlord.
5. Condition of Demised Premises. The parties acknowledge the demised premises will be
delivered in an “as is” condition with all faults and defects. Tenant acknowledges that Tenant will
have had adequate opportunity to inspect the Property and determine the condition of the Property
prior to the Commencement Date and acknowledges that Landlord has made no representations or
warranties regarding the condition of the Property or its fitness for any purpose. Landlord shall
deliver the demised premises to Tenant on the Commencement Date, free and clear of all leases and
service contracts.
6. | Insurance. |
(a) Liability Insurance. Tenant shall maintain, from the Effective Date of this Lease
and during the entire term of this Lease and any extension thereof, a commercial general liability
policy of public liability and property damage insurance insuring the Property against any and all
claims for personal injury, including property damage in, on or about the demised premises with a
combined single limit per occurrence of not less than One Million Dollars ($1,000,000.00),
provided, however, that this limit, for the sixth and subsequent lease years, shall be
increased to an amount that is at least twenty-five percent (25%) of the total gross revenues
received by the Tenant, provided, further, if the premium for the liability insurance hereunder
shall exceed two percent (2%) of the total gross revenues of Tenant, then Tenant shall maintain
liability insurance in an amount of One Million Dollars ($1,000,000.00) or an amount which two
percent (2%) of the total gross revenues of Tenant would purchase, whichever is greater. Such
policy shall name Landlord and Landlord’s mortgagee, if any, (and any Leasehold Mortgagee at its
request) as additional insured, and shall contain a clause that the insurer will not cancel or
change the insurance without first giving Landlord, Landlord’s Mortgagee, or any Leasehold
Mortgagee, thirty (30) days prior written notice.
(b) All-Risk Insurance. Tenant shall maintain, from the Effective Date of this Lease
and during the entire term of this Lease and any extension thereof, a policy of “causes of loss —
special form” all-risk property damage insurance upon the Improvements in an amount
equal to the full replcement value of the Improvements above the foundation walls;
provided, however, that Tenant is only obligated to maintain adequate insurance on the ski lifts.
The policy of insurance pursuant to this Section 6(b) shall insure and be payable to Tenant and
shall provide for release of insurance proceeds to Tenant for restoration of loss. Such policy may
also name any Leasehold Mortgagee, upon its request, as an additional insured as its interest may
appear, by standard mortgagee clause if obtainable. If any Leasehold Mortgagee is named as an
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additional insured, such policy or policies shall provide that the policy will not be canceled
except after thirty (30) days written notice to the Leasehold Mortgagee.
(c) General.
(1) The insurance coverages required hereunder shall be carried with an insurance company or
companies licensed to do business in the State of New Hampshire. Such insurance may be carried
under a blanket policy or policies covering other liabilities and locations of the Tenant. From
time to time, Tenant shall furnish Landlord evidence to indicate that the foregoing insurance is in
full force and effect and that the premiums therefor have been paid and all renewal policies shall
be delivered to Landlord no less than ten (10) days prior to the date of expiration of the then
existing policy.
(2) Anything in this Lease to the contrary notwithstanding, Landlord and Tenant each hereby
releases and relieves the other, and each hereby waives any and all rights of recovery, claim,
action or cause of action against the other for any loss or damage that may occur to the Property
or any improvements thereto, or any personal property of Landlord or Tenant, arising from any cause
that (a) would be insured against under the terms of any property insurance required to be carried
hereunder; or (b) is insured against under the terms of any property insurance actually carried,
regardless of whether the same is required hereunder. The foregoing waiver shall apply regardless
of the cause or origin of such claim, including but not limited to the negligence of a party, or
such party’s agents, officers, employees or contractors. The foregoing waiver shall not apply if it
would have the effect, but only to the extent of such effect, of invalidating any insurance
coverage of Landlord or Tenant.
7. Representations, Warranties and Covenants of Tenant. Tenant represents,
warrants and covenants to Landlord that:
(a) Tenant is a Missouri corporation duly organized and in good standing in the state of its
incorporation, which has duly qualified as a foreign corporation in the State of New Hampshire.
Tenant is a wholly-owned subsidiary of Peak Resorts, Inc., a Missouri corporation. Tenant has the
legal power, right and authority to enter into this Lease and the instruments to be executed by
Tenant pursuant to this Lease, and to consummate the transactions contemplated hereby.
(b) All requisite action has been taken by Tenant in connection with Tenant’s execution of
this Lease and the instruments to be executed by Tenant pursuant to this Lease, and the
consummation of the transactions contemplated hereby,
(c) The individuals executing this Lease and the instruments to be executed by Tenant pursuant
to this Lease on behalf of Tenant have the legal power, right and actual authority to bind Tenant
to the terms and conditions of this Lease and such instruments.
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8. Landlord’s Representations and Warranties. Landlord represents, warrants and
covenants to Tenant that:
(a) Landlord has the legal power, right and authority to enter into this Lease and the
instruments to be executed by Landlord pursuant to this Lease, and to consummate the transactions
contemplated hereby.
(b) All requisite corporate action has been taken by Landlord in connection with Landlord’s
execution of this Lease and the instruments to be executed by Landlord pursuant to this Lease and
the consummation of the transactions contemplated hereby.
(c) The individuals executing this Lease and the instruments to be executed by Landlord
pursuant to this Lease on behalf of Landlord, have the legal power, right and actual authority to
bind Landlord to the terms and conditions of this Lease and such instruments.
(d) Neither the execution of this Lease nor the consummation of the transactions contemplated
hereby shall result in a breach of or constitute a default under any agreement, document,
instrument, or other obligation to which Landlord is a party or by which Landlord may be bound, or
under any law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or
decree of any court or governmental body, applicable to Landlord or to the Property or result in
the acceleration of any encumbrance pertaining to the Property.
(e) There is no claim, action, litigation, arbitration, material dispute or other proceeding
pending against Landlord which relates to the Property, the demised premises or the transactions
contemplated hereby except as disclosed in writing to Tenant and, to Landlord’s actual knowledge,
there is currently no governmental investigation, threatened litigation or arbitration proceedings
to which Landlord is, or would be, a party which relates or would relate to the Property or the
demised premises.
(f) No attachments, execution proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other proceedings are pending or threatened against
Landlord nor are any of such proceedings contemplated by Landlord.
(g) There are no pending or, to Landlord’s actual knowledge, contemplated condemnation or
annexation proceedings affecting the Property or the demised premises or any part thereof.
(h) Landlord has not received any notice of any violations, and to Landlord’s actual
knowledge, without inquiry, the Property and the demised premises is not in violation of any
federal, state or local law, ordinance or regulation relating to Hazardous Materials (“Hazardous
Materials”), industrial hygiene or the environmental conditions on, under or about the Property or
the demised premises including, but not limited to, soil and ground water condition. Hazardous
Materials shall mean any flammable explosives, radioactive materials, hazardous wastes or
substances, toxic wastes or substances and other related materials including without limitation any
substances defined as or included in the definition of “hazardous
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substances”, “hazardous wastes”,
“hazardous materials” or “toxic substances” under any applicable federal, state or local laws or
regulations.
(i) Landlord has not received any notice of any violation, and to Landlord’s actual knowledge,
without inquiry, the Property and the demised premises are not in violation of any law, ordinance,
regulation, order or requirement applicable to the Property or the demised premises including
without limitation, requirements imposed under any recorded covenants, conditions, restrictions,
easements or other rights affecting the Property or the demised premises.
(j) Landlord shall not, after the execution hereof, either voluntarily or by operation of law,
allow any lien or encumbrance other than the Permitted Title Exceptions, to be placed of record
against all or any portion of the Property or the demised premises or otherwise burden or cloud
title to the Property or the demised premises.
(k) There being no leases of the Property existing, Landlord shall not, after the execution
hereof and while Tenant is not in default under this Lease, enter into any new leases for the
Property or the demised premises or any portion thereof, or otherwise grant or convey any interest
or occupancy right to any party other than Tenant, without first receiving Tenant’s prior written
consent, which consent may be granted or withheld in Tenant’s sole and absolute discretion.
(l) Prior to the Commencement Date, Landlord shall not make any further additions or
modifications to the Property other than normal maintenance and repair.
(m) Landlord is a duly constituted and validly existing limited liability company under the
laws of the State of New Hampshire, duly qualified to do business in the state in which the demised
premises are located, and has the full power to carry out the transactions contemplated by this
Lease.
(n) The Property and the demised premises are not located in a flood hazard zone or wetland
area.
(o) It is not necessary, under applicable law, that the Lease and/or a “short form” of lease
be recorded for the Lease to be effective.
(p) This Lease does not violate or conflict in any way with the terms of any other lease
applicable to the Property or the terms of any reciprocal operating agreement, cross easement
agreement, restrictive covenants, or any other document.
9. Repairs and Maintenance.
(a) Throughout the Term, Tenant, at its sole cost and expense, shall make or cause to be made
all necessary or appropriate repairs, or replacements and renewals as may be required to maintain
the Property in a good condition (collectively, “Repairs” and the making of any Repairs being
hereafter referred to as “Repair”). All Repairs shall be performed in a good, substantial and
workmanlike manner.
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(b) Landlord shall not be required to furnish any services or facilities or to make any
Repairs in or about the Property or any part thereof, Tenant hereby assuming the full and sole
responsibility for all Repairs to, and for the condition, operation, maintenance and management of,
the Property as of the Effective Date and through and during the Term.
10. Development
of the Property.
(a) Scope of Development. Tenant will initially improve the Property by constructing
improvements necessary for the operation of a ski resort on the Property, the scope of which shall
be determined by Tenant. Tenant shall perform all Improvements in compliance with all applicable
laws. To the extent that Tenant commences any improvements, Tenant shall complete it with
reasonable diligence and within a reasonable period. Tenant shall pay for all Improvements when and
as required by the parties that perform such improvements. Tenant shall timely obtain and promptly
deliver to Landlord all approvals necessary or appropriate for any improvements. All Improvements
that Tenant constructs on the Property shall become part of the Property.
(b) Plans and Specifications. To the extent that Tenant obtains plans and
specifications or surveys (including working plans and specifications and “as-built” plans and
specifications and surveys) for any improvements, Tenant shall promptly give Landlord a copy,
subject to the terms of any agreement between Tenant and the applicable architect, engineer, or
surveyor. Tenant shall exercise reasonable efforts to cause its agreements with such professionals
to permit these deliveries, which are for Landlord’s information only except to the extent, if any,
this Lease otherwise expressly states.
(c) Applications and Filings. Upon Tenant’s request, Landlord shall, without cost to
Landlord, promptly join in and execute any application or filing as Tenant may from time to time
request, provided that: (1) such application or filing is in customary form and imposes no material
obligations (other than obligations that are ministerial in nature or merely require compliance
with law) upon Landlord; and (2) no uncured Event of Default exists.
(d) Other Cooperation with Approvals. Promptly upon Tenant’s request and without
charge to Tenant, Landlord shall furnish all information in its possession that Tenant shall
reasonably request and that is required in connection with the filing and prosecution of any
applications and filings.
(e) Landlord Nonappearance. Landlord shall not appear in opposition to any action or
application brought, sought, or defended by Tenant before any Government agency arising out of any
application of filing consistent with this Lease.
11. Utilities. Landlord covenants and agrees that, as of the Effective Date, gas,
electric, telephone, water and sewer are available to the demised premises, in terms of
infrastructure availability, subject to the Tenant being responsible for any reconnection,
reinstallation or reactivation costs associated with obtaining such utilities services from the
vendors involved.
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12. Governmental Regulations. Tenant shall observe and comply with all requirements,
rules, orders and regulations of the federal, state and municipal governments or other duly
constituted public authority affecting the Property, whether now existing or existing in the
future. Tenant shall have the right, however, to contest in good faith, without cost to Landlord,
the validity or application of any such rule, order or regulation required to be complied with by
Tenant in accordance with the foregoing, and may postpone compliance therewith so long as such
contest does not subject Landlord to criminal prosecution for non-compliance therewith and further
provided Tenant promptly pays all fines, penalties and other costs imposed on Landlord as a result
of such non-compliance by Tenant. Landlord will cooperate with Tenant in connection with any such
contest at no cost to Landlord.
13. Exculpation. Anything to the contrary in this Lease notwithstanding, the covenants
contained in this Lease to be performed by Landlord shall not be binding personally, but instead,
said covenants are made for the purpose of binding only the fee simple estate which Landlord owns
in the demised premises.
14. Damage and Destruction.
(a) Obligation to Rebuild. In the event that, at any time during the Lease Term, the
Improvements located on the Property shall be damaged or destroyed (partially or totally) by an
insured casualty Tenant shall, at its expense, promptly and with due diligence, repair, rebuild and
restore the same, as nearly as practicable, to the condition existing just prior to such damage or
destruction, provided the repaired, rebuilt or replaced premises will have a value not less than
its value just prior to said loss.
(b) Option to Terminate. It is understood and agreed that if either (1) the
Improvements are damaged or destroyed within two (2) years of the then scheduled expiration date of
the Lease Term, and if the extent of such damage or destruction is such that the cost of
restoration would exceed ten percent (10%) of the amount it would have cost to replace the
Improvements on the Property in their entirety at the time such damage or destruction took place,
or (2) the Improvements are damaged or destroyed (partially or totally) by an uninsured casualty
and if the extent of such damage or destruction is such that the cost of restoration would exceed
ten percent (10%) of the amount it would have cost to replace the Improvements on the Property in
their entirety at the time such damage or destruction took place, then, and in either of such
event, Tenant may terminate this Lease as of the date of termination indicated by giving written
notice to Landlord within ninety (90) days after the date of the casualty, specifying a date of
termination within ninety (90) days after the date of such notice, provided that any Annual Rent
attributable to the percentage, if any, referred to in Exhibit B shall not be prorated but due in
full for the lease year. If Tenant so elects to terminate, then Tenant shall utilize insurance
proceeds, if any, to pay off and discharge any Leasehold Mortgage and any remaining insurance
proceeds shall be paid to Landlord less the unamortized value of any portion of Improvements
constructed by Tenant during the Lease Term, based upon the remaining adjusted basis in such
Improvements for federal income tax purposes.
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(c) No Release of Tenant’s Obligations. Unless this Lease is terminated as provided in
Section 14(b), no destruction of, or damage to the Property or Improvements, or any parts thereof,
by fire or any other cause shall permit Tenant to surrender or terminate this Lease or shall
relieve Tenant from its obligations to pay full Annual Rent and Additional Rent under this Lease or
from any of its other obligations under this Lease, and Tenant waives any rights now or hereafter
conferred on it by statute or otherwise to quit or surrender this Lease or the Property or any
suspension, diminution, abatement or reduction of rent on account of any such damage or
destruction.
15. Eminent Domain.
(a) Improvements/Ingress and Egress. In the event that the points of ingress and
egress to the public roadways serving the Property, shall be materially impaired by a public or
quasi-public authority, so as to render, in Tenants reasonable discretion, the demised premises
unsuitable for its intended purpose, Tenant shall have the option to terminate this Lease as of the
date Tenant shall be deprived or denied thereof. In the event that more than ten percent (10%) of
the Improvements or the parking areas on the Property shall be expropriated by public or
quasi-public authority, Tenant shall have the option to terminate this Lease as of the date Tenant
shall be dispossessed from the part so expropriated by giving written notice to Landlord of such
election so to terminate within ninety (90) days from the date of such dispossession.
(b) Restoration. In the event of an expropriation of any portion of the Improvements
or the parking areas on the demised premises, and if this Lease shall not be terminated as provided
above, this Lease shall continue as to that portion of the demised premises which shall not have
been expropriated or taken, and Tenant shall, subject to available condemnation proceeds, promptly
and with due diligence, restore the affected portion of the Improvements, as nearly as practicable,
to a complete unit of like quality and character as existed just prior to such expropriation.
(c) Termination. In the event this Lease shall be terminated pursuant to this Section
15, any Annual Rent, Additional Rent and any other charges paid in advance with respect to a period
after the effective date of termination shall be refunded to Tenant. Nothing herein contained shall
be construed as preventing Tenant from being entitled to any separate award made to Tenant for the
taking of any personal property, inventory or trade fixtures of Tenant, or from claiming its award
directly against the condemnor.
(d) Condemnation Award — Lease Not Terminated. In the event of a condemnation of any
portion of the Improvements and if this Lease is not terminated, Tenant shall be entitled to that
portion of the award paid by the condemning authority (after payment of expenses incurred in
connection with collecting the same) attributable to that portion of the condemned Improvements
made by or on behalf of Tenant plus the costs of restoring the remaining portion of the
Improvements.
(e) Condemnation Award — Lease Terminated. In the event of a condemnation and
this Lease is terminated as herein provided, the award paid by the
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condemning authority (after
payment of expenses incurred in connection with collecting the same) shall be allocated as follows:
(1) First, to the extent the award is allocable to the Improvements made by or on behalf of
Tenant and/or the leasehold estate under this Lease, an amount shall be paid to the Leasehold
Mortgagee, such amount not to exceed the balance due on any note secured by the Leasehold Mortgage
or the amount of the value of Tenant’s leasehold estate in the Property as of the date of the
condemnation; and
(2) Second, to Tenant in an amount equal to the value of Tenant’s leasehold estate, if any, as
determined in the proceeding involved with the condemnor, in the Property as of the date of the
condemnation less the amount received by Tenant under Section 15(e)(1) above; and
(3) Third, the Landlord shall receive the balance of the award.
16. Use, Assignment and Subletting.
(a) Use. The Property and the demised premises may be used as a ski resort and any use
related directly thereto. The Property and the demised premises may not be used for other purposes,
including conventions, concerts, entertainment performances of any nature, markets of any sort, or
similar activities without compliance with any applicable governmental permits and/or approvals;
and without the prior, written consent of the Landlord, which will not be unreasonably delayed
and/or withheld.
(1) Assignment. During the Lease Term, this Lease may be assigned or subleased only if
the conditions set forth in Section 16(a)(l)(a)-(e) have been satisfied in Landlord’s reasonable
determination or waived by Landlord. Landlord shall make such determination within thirty (30) days
of Landlord’s receipt of information reasonably necessary to make such determination.
a. Tenant is not in default under the Lease, or any default will be cured by the Tenant of the
proposed assignee or subtenant as a condition of the approval;
b. The proposed assignee or subtenant (or its principals) has demonstrated expertise in owning
and operating property similar in character and size and operation to the Property, as measured
against the operations of the Property by the Tenant for the three lease years preceding the
proposed assignment; and
c. The proposed assignee or subtenant (or its principals) shall have the ability to meet all
the financial conditions of the Lease.
d. Proper substantiation of any percentage set forth in Exhibit B, prorated for the period
before and after the assignment, and payment of any Annual Rent due from the Tenant, prior to the
assignment.
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e. Proof that any Leasehold Mortgage referred to in Section 22 shall be fully paid, satisfied
and/or assumed by the Tenant and/or proposed assignee or subtenant (or its principals) in a manner
which will assure that the Tenant’s fee simple interest will be encumbered only in a manner
consistent with the provisions of this Lease applicable to the Tenant immediately before the
proposed assignment.
In the
event that conditions (a)-(e) above have been either satisfied in Landlord’s reasonable
determination or waived by Landlord, then immediately upon the assignee’s assumption of all of
Tenant’s obligations under this Lease, Tenant shall be released from all liability under this Lease
accruing on or after the date of such assignment. The foregoing release shall be effective upon the
date of the assignment, but Landlord agrees to provide written evidence thereof reasonably
requested by Tenant. No sublease by Tenant shall affect any obligations of Tenant or rights of
Landlord under this Lease, all of which shall continue in full force and effect notwithstanding any
Sublease,
(b) Assignment and Subleasing. Without the prior consent of Landlord, Tenant shall
have the right from time to time during the Lease Term, to mortgage this Lease and the leasehold
estate hereby created. The execution and delivery of a mortgage shall not be deemed to constitute
an assignment or transfer of this Lease nor shall the holder of any mortgage, as such, be deemed an
assignee or transferee of the Lease so as to require such holder to assume the performance of any
of the covenants or agreements on the part of Tenant to be performed hereunder, except to the
extent provided in Section 22. Promptly after execution and delivery of a mortgage, Tenant shall
send to Landlord a copy of all relevant documentation delivered in connection therewith. In the
event of a sublease or mortgage by Tenant pursuant to this paragraph, Tenant shall remain liable
and responsible under this Lease. Tenant shall notify Landlord of the identity of any mortgagee,
but Tenant’s failure to so notify the Landlord shall not be deemed a default under this Lease,
provided, however, that any benefits of Section 22 to the Leasehold Mortgagee shall not be deemed
effective until the Tenant shall notify the Landlord of the identity of any mortgagee. Any mortgage
of Tenant’s interest under this Lease without notification to Landlord shall not be effective as to
Landlord and Landlord shall not be bound thereby until receipt of such notification.
17. Tenant’s Compliance with Covenants and Restrictions. Tenant covenants that, during
the term of this Lease and any extension thereof, it shall comply with the covenants and
restrictions of record affecting the Property. Landlord covenants that Landlord will not enter into
any agreement imposing covenants and restrictions of record affecting the Property without Tenant’s
prior written approval.
18. Ingress and Egress. Landlord warrants that as consideration for Tenant entering
into this Lease, it will not hinder or alter, for the period of this Lease and any extension
thereof, ingress and egress facilities to the adjoining public streets and highways in the number
and substantially in the locations as in existence as of the Commencement Date, subject to
unavoidable temporary closings or temporary relocations necessitated by public authority or other
temporary circumstances beyond Landlord’s control.
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19. Landlord’s Remedies. If Tenant shall be in default under any provision of this
Lease and shall remain so for monetary defaults for a period of ten (10) days after written notice
to Tenant of such default, and for all other defaults for a period of thirty (30) days after
written notice to Tenant of such default, then Landlord may, by giving a second written notice to
Tenant, at any time thereafter during the continuance of such default, either (a) terminate this
Lease, or (b) re-enter the demised premises by summary proceedings or otherwise, expel Tenant and
remove all property there from, use commercially reasonable efforts to relet said premises
expeditiously at market rent and receive the rent there from. If the Lease is hot terminated,
Tenant shall remain liable for all Annual Rent and Additional Rent reserved herein less the avails
of reletting, if any, after deducting there from the reasonable cost of obtaining possession of the
demised premises and the reasonable cost of any repairs and alterations necessary to prepare it for
reletting as well as any commercially reasonable real estate commissions paid by Landlord in
connection with such reletting (amortized over the remaining term of the Lease). Any and all
monthly deficiencies so payable by Tenant shall be paid monthly on the date herein provided for the
payment of Annual Rent. If any default by Tenant (other than payment of Annual or Additional Rent)
cannot reasonably be remedied within thirty (30) days after written notice of default, then Tenant
shall have such additional time as shall be reasonably necessary to remedy such default before this
Lease can be terminated or other remedy enforced by Landlord, but only so long as the Tenant shall
be promptly and diligently pursuing the cure of such default, with the termination of such
promptness and diligence to be in the Landlord’s reasonable discretion.
20. Bankruptcy. If a petition of bankruptcy or reorganization shall be filed by or
against Tenant, Tenant shall become bankrupt, Tenant shall make a general assignment for the
benefit of creditors, Tenant shall admit in writing its inability to pay its debts as they become
due, or in any proceeding based upon the insolvency of Tenant, a receiver or trustee of all of the
property of Tenant shall be appointed and shall not be discharged within ninety (90) days after
such appointment, then Landlord may terminate this Lease by giving written notice to Tenant of its
intention to do so; provided, however, neither bankruptcy, insolvency, reorganization, an
assignment for the benefit of creditors nor the appointment of a receiver or trustee shall affect
this Lease or permit its termination so long as the covenants on the part of Tenant to be performed
shall be timely performed by Tenant, or someone claiming under it.
21. Covenant of Title.
(a) Quiet Enjoyment. Landlord covenants, represents and warrants that it has full right
and power to execute and perform this Lease and to grant the estate demised herein and that Tenant,
on payment of the Annual and Additional Rent and performance of the covenants and agreements
hereof, shall peaceably and quietly have, hold and enjoy the demised premises and all rights,
easements, appurtenances and privileges belonging or in any way appertaining thereto during the
Lease Term without molestation or hindrance of any person whomsoever, and if, at any time during
the term hereby demised the title of Landlord shall fail or it be discovered that its title shall
not enable Landlord to grant the term hereby demised, and if Landlord fails to commence the cure of
such defect promptly following notice from Tenant and thereafter diligently prosecutes the same to
completion, then Tenant shall have the option, at Landlord’s expense, to correct such defect or if
such defect is not reasonably subject to cure, to annul this Lease with full reservation of its
rights to damages, if any.
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(b) Evidence of Title. Landlord further covenants, represents and warrants that
it is seized of an indefeasible estate in fee simple or has a good and marketable title to the
Property (including, without limitation, the demised premises), free and clear of any liens,
encumbrances, restrictions and violations (or claims or notices thereof), except public utility
easements and covenants and restrictions of record not impairing Tenant’s use of the demised
premises, real estate taxes and special assessments not yet due and payable, and the lien of the
mortgage or mortgages specifically identified on the attached
Exhibit C. Landlord shall,
without expense to Tenant and within thirty (30) days after the Effective Date, furnish to Tenant
(1) a copy of a title report evidencing that Landlord’s title is as herein represented, (2) a
survey by a licensed surveyor of the demised premises and (3) agreements wherein each holder of any
mortgage lien against the demised premises shall consent to this Lease and warrant that Tenant’s
possession and right of use under this Lease in and to the demised premises shall not be disturbed
by such holder unless and until Tenant shall breach any of the provisions hereof and this Lease or
Tenant’s right to possession hereunder shall have been terminated in accordance with the provisions
of this Lease.
22. Leasehold Mortgage.
(a) Tenant shall have the unrestricted right at any time and from time to time without
Landlord’s consent to mortgage the Property and the demised premises, including the Improvements,
and its leasehold interest under this Lease (but not Landlord’s fee interest), subject however to
the limitations hereinafter set forth. Any such mortgage shall be subject and subordinate to the
rights of Landlord hereunder. A mortgage of the Property and/or Tenant’s leasehold interest under
this Lease is herein referred to as a “Leasehold
Mortgage,” and the party holding the Leasehold
Mortgage (including any affiliate of such party) the
“Leasehold Mortgagee.”
(b) No Leasehold Mortgagee shall be entitled to enjoy the rights or benefits mentioned herein,
nor shall the provisions of this Lease pertaining to Leasehold Mortgages be binding upon Landlord,
unless Landlord shall have been given written notice of the name and address of the Leasehold
Mortgagee together with a true and correct copy of the Leasehold Mortgage, the note secured
thereby, the security agreement related to any personal property located on or associated with the
Property, financing statements related to any personal property located on or associated with the
Property, all as related to any obligations to the Leasehold Mortgage, plus such portions of any
loan agreement and/or other written agreements between the Leasehold Mortgagee and Tenant which
pertain to the direct use, maintenance, and/or operations of the Property; and, during the Term of
the Lease, any modifications or amendments to any of the above referenced specific documents.
(c) So long as such Leasehold Mortgage shall remain in effect, the following provisions shall
apply:
(1) Landlord shall serve a copy of any notice, including a notice of default, required to be
served on Tenant under this Lease upon such Leasehold Mortgagee at the address provided in the
notice referred to in subsection (b) hereof, and no notice by Landlord to
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Tenant hereunder shall be deemed to have been duly given unless and until a copy thereof has been
served on the Leasehold Mortgagee.
(2) In the event of a default by Tenant hereunder, any Leasehold Mortgagee (or its agents)
shall, within the period allowed Tenant to cure such default and otherwise as herein provided, have
the right to cure such default, or cause the same to be cured, and Landlord shall accept such
performance by or on behalf of such Leasehold Mortgagee as if the same had been made by Tenant if
such performance is made within the applicable cure period set forth herein.
(3) For the purposes of this subsection, no event of default shall be deemed to exist for a
non-monetary default which cannot be cured within the permitted cure period as long as action to
cure the default shall in good faith have been commenced within the time permitted therefor to cure
the same and shall be prosecuted to completion with diligence and continuity.
(4) Notwithstanding the foregoing, upon the occurrence of an event of default, Landlord shall
take no action to terminate this Lease without first giving to the Leasehold Mortgagee written
notice thereof and, in the event of a monetary default, a period of fifteen (15) days after written
notice to cure such default, or in the case of a non-monetary default, a period of ninety (90) days
within which either (i) to obtain possession of the demised premises (including possession by a
receiver) or (ii) to institute, prosecute and complete foreclosure proceedings or otherwise acquire
Tenant’s interest under this Lease, or (iii) to cure such default (provided, however, that
Leasehold Mortgagee would not be required to cure any monetary default related to the percentage
rent provided in Exhibit B, as long as any default in payment of the minimum rent provided in
Exhibit B is cured). Such Leasehold Mortgagee, within ninety (90) days after obtaining
possession or acquiring Tenant’s interest under this Lease, (the “Leasehold Mortgage Cure
Period”), shall be required to cure all non-monetary defaults reasonably susceptible of being cured
by such Leasehold Mortgagee; provided, however, that: (A) such Leasehold Mortgagee shall not be
obligated to continue such possession or to continue such foreclosure proceedings after such
defaults shall have been cured; (B) nothing herein contained shall preclude Landlord, subject to
the provisions of this Section, from exercising any rights or remedies under this Lease with
respect to any other default by Tenant; (C) such Leasehold Mortgagee shall agree with Landlord in
writing to comply during the period of such forbearance with such of the terms, conditions and
covenants of this Lease as are reasonably susceptible of being complied with by such Leasehold
Mortgagee (other than percentage rent provided in Exhibit B, as long as the minimum rent provided
in Exhibit B is satisfactorily addressed in such agreement with Landlord); and (D) if a
non-monetary default which the Leasehold Mortgagee is otherwise required to cure pursuant to the
provisions of this subparagraph (c)(4) is not reasonably susceptible to cure within the Leasehold
Mortgagee Cure Period, the Leasehold Mortgagee shall be deemed to be in compliance with the
requirements hereof as long as it has commenced action to cure such default within the Leasehold
Mortgagee Cure Period, and diligently pursues such cure to completion. For purposes of this Section
22(c)(4), the phrase “non-monetary defaults” shall not apply to any failure of the Tenant to have
undertaken or completed contemplated constructions related to the Property; or any failure of the
Tenant to rebuild any damaged or destroyed Improvements located on the Property. Also, for
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purposes of this Section 22(c)(4), in the event that the Tenant shall have obtained judicial delay or
restriction upon any actions of the Leasehold Mortgagee to enforce any and all obligations owing to
Leasehold Mortgagee, including foreclosing on the Leasehold Mortgage, or the Tenant shall have
sought or been subjected to any bankruptcy proceedings which include or result in the delay or
restriction upon any actions of the Leasehold Mortgagee to enforce any and all obligations owing to
Leasehold Mortgagee, including foreclosing on the Leasehold Mortgage, then during any period of
such delay or restriction the periods of time referred to in the first two sentences of this
Section 22(c)(4) shall be suspended and shall resume running upon the expiration of any applicable
appeal period in relation to the court orders and/or expiration periods which are applicable, if
such court orders or expiration dates would permit the Leasehold Mortgagee to proceed with curing
any defaults or foreclosing on the Leasehold Mortgage. Such Leasehold Mortgagee may become the
legal owner and holder of Tenant’s interest under this Lease by foreclosure or assignment in lieu
of foreclosure; but no third party other than Leasehold Mortgagee shall be entitled to acquire
Tenant’s interest under this Lease by foreclosure or assignment in lieu of foreclosure unless and
until such proposed acquirer or assignee shall have satisfied the requirements set forth in Section
16(a)(l)(b)-(e).
(d) In the event of termination of this Lease prior to the expiration of the term, by reason of
any default or for any other reason including, without limitation any rejection or disaffirmance
pursuant to the Bankruptcy Code or pursuant to any insolvency or
other law affecting creditors’
rights but excluding any termination by reason of condemnation or casualty as provided in Sections
15 and 16 herein or the default of Tenant and the failure to cure such default by the Leasehold
Mortgagee after having notice thereof as provided in subparagraph (c)(4) above, Landlord shall
serve upon the Leasehold Mortgagee written notice that the Lease has been terminated together with
a statement of any and all sums which would at that time be due under this Lease but for such
termination, and of all other defaults, if any, under this Lease then known to Landlord. Such
Leasehold Mortgagee shall thereupon have the option to obtain a new lease in accordance with and
upon the following terms and conditions:
(1) Upon written request of the Leasehold Mortgagee within thirty (30) days after service of
such notice that the Lease has been terminated, Landlord shall enter into a new lease of the
demised premises with such Leasehold Mortgagee, or its designee, as set forth in clause (2) below.
If the new lease is to be with an individual or entity other than the Leasehold Mortgagee, as a
direct party, then such individual or entity, as designee of the Leasehold Mortgagee, shall have
satisfied the requirements set forth in Section 16(a)(l)(b)-(e).
(2) Such new lease shall be effective on the date of termination of this Lease and shall be
for the remainder of the term of this Lease, at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of
renewal. Such new lease shall require the tenant thereunder to perform all unfulfilled
obligations of Tenant under this Lease which are reasonably susceptible of being performed by
such tenant. Upon the execution of such new lease, the tenant named therein shall pay all sums which would at the time of the execution thereof be due under this Lease but for such
termination and shall pay the reasonable expenses (including but not
limited to attorneys’ fees and costs) incurred by Landlord in connection with such defaults and termination, the
recovery of possession of said demised premises and the preparation, execution and delivery of such new lease. Upon
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execution
and delivery of such new lease, such tenant shall be entitled
to an adjustment in the amount otherwise owed pursuant to the terms of this paragraph, such adjustment to be equal to the net income, if any, derived by Landlord from the demised
premises during the period from the date of termination of this Lease to the date of execution of the new Lease.
(3) Any such new lease shall maintain the same priority as this Lease with regard to any
Leasehold Mortgage affecting the Property or any part thereof or any other rights, liens or
encumbrances thereon. The provisions of the immediately preceding sentence shall be self-executing;
provided, however, Landlord shall execute such reasonable documents as are necessary to effectuate
the foregoing.
(e) Except as otherwise provided herein, this Lease may not be modified, amended, or canceled
by the mutual agreement of Landlord and Tenant or surrendered without the express written consent
of the Leasehold Mortgagee. The provisions of this Section shall survive the expiration or earlier
termination of this Lease.
(f) If Landlord and Tenant shall acquire the interest of the other hereunder, this Lease shall
remain outstanding and no merger of the leasehold into the fee interest shall be deemed to have
occurred.
(g) If any Leasehold Mortgagee shall acquire title to Tenant’s interest under this Lease by
foreclosure, assignment in lieu of foreclosure or otherwise, or under a new lease pursuant to
subsection (d) above, the same shall not be deemed to constitute an assignment or transfer of this
Lease or of the leasehold estate thereby created, and such Leasehold Mortgagee may assign such
interest under this Lease or in such new lease and shall thereupon be released from all liability
for the performance or observance of the covenants and conditions in this Lease or in such new
lease contained on Tenant’s or Tenant’s part to be performed and observed from and after the date
of such assignment; provided, however, that the assignee of such Leasehold Mortgagee shall have
expressly assumed this Lease or such new lease and written evidence of such assumption shall have
been submitted to Landlord.
(h) Landlord acknowledges that as between Landlord and Leasehold Mortgagee, its nominee or a
purchaser at a foreclosure or other sale, this Lease shall not be deemed to be terminated
notwithstanding the rejection of the Lease by Tenant or its representative in any proceeding under
the Bankruptcy Reform Act of 1978 (the “Bankruptcy
Code”) or any other insolvency law, provided
that Leasehold Mortgagee, its nominee or a purchaser at a foreclosure sale confirms in writing that
it is bound by the terms and conditions of the Lease to the same extent as Tenant named therein.
(i) Each Leasehold Mortgagee shall be given notice of any litigation, arbitration or other
proceeding relating to this Lease and any dispute between the parties thereto and shall have the
right to intervene in any such litigation, arbitration or other proceeding, but only to the extent
of its interest as mortgagee, as its interest may appear, and not as a direct party to such
litigation, arbitration or other proceeding. In any event, each Leasehold Mortgagee shall receive a
copy of any award or decision made in such litigation, arbitration or other proceeding.
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(j) To the extent required by this Lease, any proceeds of fire or other casualty insurance
policies that are payable to Tenant under this Lease shall be paid to Leasehold Mortgagee.
(k) Leasehold Mortgagee shall receive all condemnation proceeds that are due to Tenant under
this Lease and/or applicable law.
23. Indemnifications.
(a) Tenant’s Obligation. During the Lease Term, Tenant shall indemnify and save
Landlord, and its agents, employees, successors and assigns, harmless against all penalties, claims
or demands of whatsoever nature arising from Tenant’s use of the Property, except those which shall
result, in whole or in part, directly or indirectly, from the default or negligence of Landlord,
its agents, employees, successors and assigns.
(b) Survival. The indemnifications set forth in this Section 23 shall survive the
expiration, cancellation or termination of this Lease.
24. Tenant’s Right to Cure Landlord’s Defaults. In the event Landlord shall neglect to
pay when due any obligations on any mortgage or encumbrance affecting title to the demised premises
and to which this Lease shall be subordinate and with respect to which Tenant does not have an
existing non-disturbance agreement, or in the event Landlord shall fail to perform any obligation
specified in this Lease, or if Landlord shall be in material default of any representation,
warranty, or covenant of Landlord, then Tenant may, after the continuance of any such default for
seven (7) days after written notice thereof by Tenant to Landlord, pay said principal, interest or
other charges or cure such default, all on behalf of and at the expense of Landlord and do all
necessary work and make all necessary payments in connection therewith and Landlord shall, on
demand, pay Tenant, forthwith, the amount so paid by Tenant.
25. Hazardous Material.
(a) Landlord’s Representations. Landlord represents that, to the best of its actual
knowledge, without inquiry, and except as disclosed below, there are not now nor have there been
any Hazardous Materials (as defined below) used, generated, stored, treated or disposed of on the
Property in violation of applicable governmental regulations. Landlord’s representations to Tenant
under this Section shall survive the cancellation or termination of this Lease.
(b) Tenant’s Representations. Tenant warrants and agrees that it will not use,
maintain, generate, store, treat or dispose of any Hazardous Materials in or on the Property in
violation of applicable governmental regulations. Tenant hereby indemnifies Landlord from and
against any loss, liability, claim or expense, including, without limitation, cleanup, engineering
and reasonable attorneys fees and expenses that Landlord may incur by reason of any investigation
or claim of any governmental agency or third party for any actions taken by Tenant, its agents,
licensees, subtenants, concessionaires, contractors or employees at the Property during
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the term of this Lease in violation of the above covenant. Tenant’s indemnity to Landlord under this paragraph
shall survive the cancellation or termination of this Lease.
(c) Affirmative Obligations. At any time prior to the Commencement Date , Tenant (or
Tenant’s contractor) may inspect the Property and the nearby surrounding property for the presence
of Hazardous Materials. If Hazardous Materials are discovered on the Property or any of the nearby
surrounding property beyond the levels which may require investigation and/or remediation under
applicable environmental laws, Landlord may, at its sole cost and expense, remedy and cleanup such
problem in accordance with all applicable governmental regulations. If Landlord does not remediate
such Hazardous Materials condition prior to the Commencement Date, Tenant may, within thirty (30)
days thereafter, cancel this Lease by giving notice to Landlord and returning possession of the
demised premises to Landlord and, in such event, Tenant will thereafter be relieved of all further
liability under this Lease. If, after the Commencement Date , Hazardous Materials are discovered on
the Property or any of the nearby surrounding property beyond the amounts which require
investigation, remediation or other action under applicable environmental laws, and which were not
caused as a result of Tenant’s (or Tenant’s agents, licensees, subtenants, concessionaires,
contractors or employees) actions as specifically provided herein, Landlord shall be required, at
its sole cost and expense, to remedy and cleanup such conditions in accordance with all applicable
governmental regulations, and in the event such remedy and/or cleanup requires the vacation of ten
percent (10%) or more of the Property for a period exceeding ninety (90) days, Tenant may, with
thirty (30) days notice, cancel this Lease by giving notice to Landlord and returning the demised
premises to the Landlord and, in such event, Tenant will thereafter be relieved of all further
liability under this Lease. In the event that Tenant does not elect to cancel this Lease in
accordance with the foregoing, the Annual Rent, and any Additional Rent payable hereunder, shall be
equitably abated in accordance with the proportion of the demised premises which are rendered
unusable as a result of such environmental conditions.
(d)
Definition. For purposes of this Section, the term
“Hazardous Materials” shall
mean any toxic or hazardous waste or substances (including asbestos and petroleum products) which
are regulated by applicable local, state or federal environmental laws or regulations.
26. Condition
of Premises at Termination. At the expiration or earlier
termination of
the Lease Term Tenant shall surrender the demised premises, together with alterations, additions
and improvements then a part thereof, in good order and condition, except for the following: (a)
ordinary wear and tear, and (b) loss or damage by fire, the elements and other casualty. All
furniture and trade fixtures installed in the Improvements at the expense of Tenant, shall remain
the property of Tenant, provided, however, Tenant shall, at any time and from time to time, during
the Lease Term, have the option to relinquish its property rights with respect to such trade
fixtures, which option shall be exercised by written notice of such relinquishment to Landlord and,
from and after the exercise of said option, the property specified in said notice shall be the
property of Landlord.
27. Holding Over. In the absence of any written agreement to the contrary, if Tenant
should remain in occupancy of the demised premises after the expiration of the Lease Term, it
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shall so remain as a tenant from month-to-month and all provisions of this Lease applicable to such
tenancy shall remain in full force and effect, except that Annual Rent payable during such holdover
tenancy shall be one hundred twenty-five percent (125%) of the Annual Rent payable at the end of
the Lease Term.
28. Signage. Tenant shall have the right to place the maximum amount of exterior or interior
signage on the Property as may be permitted by applicable governmental laws or ordinances.
29. Notices. All notices, demands and other communications required or permitted to be
given under this Lease shall be in writing and shall be deemed to be given when delivered (or, if
delivery is refused, on the date delivery was attempted) if sent by recognized overnight courier,
or upon three (3) business days after deposit in the U.S. Mail if sent by certified or registered
mail, postage prepaid. All notices shall be addressed to Landlord and to Tenant at the following
address:
Tenant:
|
Peak Resorts, Inc. | |
000 Xxxxxx Xxxxxx Xxxxx | ||
Xxxxxxxx, Xxxxxxxx 00000 | ||
Attn: Xxxxxxx Xxxxxxx | ||
with copy to:
|
Xxxxxxx, Xxxxx & Xxxxx, P.C. | |
000 X. Xxxxxxx Xxx., Xxxxx 0000 | ||
Xx. Xxxxx, XX 00000 | ||
Attn: Xxxxx X. Xxxxx, Esq. | ||
Fax: (000) 000-0000 | ||
Landlord:
|
Crotched Mountain Properties, LLC | |
000 Xxxxx Xxxxxxxxxx Xxxx | ||
Xxxxxxxxxx,XX 00000 | ||
Attn: Xx. Xxxxx Xxxxxxx | ||
with copy to:
|
Xxxxxx X. Xxxxxxxx | |
00 Xxxxxxx Xxxx | ||
P.O. Box 2157 | ||
New London, NH 03257-2157 |
or to any subsequent address which Landlord or Tenant shall designate in writing for such purpose.
30. Partial Invalidity. If any term, covenant or condition of this Lease or the
application thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease or the application of such term, covenant or condition
to persons or circumstances other than those as to which it is held invalid or unenforceable shall
not be affected thereby and each term, covenant or condition of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
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31. Entire Agreement-Applicable Law. This Lease, the exhibits and amendments or
addendums, if any, attached hereto and forming a part hereof, set forth all the covenants,
promises, agreements, conditions, provisions and understandings between Landlord and Tenant
concerning the demised premises and there are no covenants, promises, agreements, conditions,
provisions or understandings, either oral or written, between them other than are herein set forth.
No alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant
unless reduced to writing and signed by each party. This Lease shall be governed by and construed
in accordance with the laws of the State in which the demised premises are located.
32. Successors and Assigns. The conditions, covenants and agreements contained in this
Lease shall be binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, successors and assigns. The covenants contained herein shall be
deemed to be covenants running with the Property and the demised premises and shall be binding upon
all owners, users and occupants of such land for so long as this Lease remains in effect. The
restrictions, benefits and obligations under this Lease shall be deemed to create mutual and
reciprocal benefits and servitudes upon the Property and the demised premises, which shall run with
and against said property and be a benefit and burden thereon, except that said restrictions,
benefits and obligations shall cease and be of no further force or effect after the termination of
this Lease.
33. Notice of Lease. The parties shall, promptly upon the request of either, execute
and deliver a Notice of Lease which Landlord shall, at its sole expense, cause to be recorded in
the Registry of Deeds within ten (10) days following execution thereof and returned to Tenant
within ten (10) days after the receipt of the recorded memorandum from the Registry of Deeds.
34. Broker’s Representation. Landlord represents that it dealt with no broker or
brokers and Tenant represents that it dealt with no broker or brokers in connection with the
negotiation, execution and delivery of this Lease. Landlord and Tenant shall, and do hereby,
indemnify and save the other harmless from and against any losses, damages, penalties, claims or
demands of whatsoever nature arising from a breach of its foregoing representation including,
without limitation, reasonable attorneys’ fees and expenses. The representations and
indemnifications set forth in this Section shall survive the cancellation or termination of this
Lease.
35. Estoppel Certificates. Within twenty (20) days after request by either party, the
other party shall execute and deliver to the requesting party a written certificate as to the
status of this Lease, any existing defaults, the status of the payments and performance of the
parties required hereunder and such other information that may be reasonably requested.
36. Captions and Definitions. Marginal captions of this Lease are solely for
convenience of reference and shall not in any way limit or amplify the terms and provisions
thereof. The necessary grammatical changes which shall be required to make the provision of this
Lease apply (a) in the plural sense if there shall be more than one Landlord and (b) to any
landlord, which shall be either a corporation, an association, a partnership or an individual, male
or female, shall in all instances be assumed as though in each case fully expressed.
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37. Survival. Unless otherwise provided, upon the termination of this Lease under
any of the Sections hereof, the parties hereto shall be relieved of any further liability
hereunder except as to acts, omissions or defaults occurring prior to such termination.
38. Contingencies. This Lease is contingent upon Tenant’s Due Diligence Contingency.
Tenant’s obligations under this Lease are contingent (the
“Due Diligence Contingency”) upon
Tenant satisfying itself, in its sole discretion, that the Property and the demised premises are
satisfactory in all respects for Tenant’s development and intended use of the Property and the
demised premises. Tenant, and its agents, employees and contractors, at Tenant’s expense and at
reasonable times, shall have a period from the date hereof until the earlier of (a) all
contingencies have been satisfied or waived, or
(b) June 30, 2003 (the “Due
Diligence Period”) to enter upon the Property and the demised premises for the purpose of
making a diligent, prudent and confidential inspection to explore the potential development of
the Property and the demised premises, by examining, testing and surveying the Property and
the demised premises, and to undertake such other studies, reviews and investigations as may
be appropriate. The inspections relating to the Property and the demised premises may include,
but shall not be limited to, examination of title, site survey, availability of a building
permit for construction of any planned renovations or alterations, zoning or use restrictions,
present and future access, geological or environmental testing, drainage conditions, excessive
levels of radon, toxic waste, hazardous substances including, but not limited to, asbestos or
other undesirable substances, and any other condition or circumstance which may adversely
affect the Property and the demised premises or Tenant’s operations thereon. Landlord agrees
to cooperate with Tenant during the Due Diligence Period in providing and allowing Tenant to
photocopy all documents which Landlord may possess relating to the Property and the demised
premises and in executing any applications required to be submitted to the planning
commission, or government agency, or authority, presiding over the Property and the demised
premises affecting the Tenant’s intended use of the Property and the demised premises. If
Tenant’s due diligence with respect to the Property and the demised premises produces results
that are unsatisfactory to Tenant for any reason, then Tenant may, at its sole option, and
without specifying the matters which are unsatisfactory to Tenant, at any time during the Due
Diligence period or within five (5) days after the end of the
Due Diligence Period (the
“Notice Deadline”), terminate this Lease by delivery of
written notice (the “Contingency
Termination Notice”) to Landlord, upon which termination neither party shall have any further
rights, duties or obligations hereunder; provided, however, that any payment of Taxes or other
operating expenses, insurance or similar costs incurred by the Tenant between the Effective
Date and the Contingency Termination Notice (the “Costs of
Due Diligence”) shall be the sole
responsibility of the Tenant and the Landlord shall have no obligation to reimburse the Tenant
for any such Costs of Due Diligence. Failure of Tenant to deliver the Contingency Termination
Notice on or before the Notice Deadline shall be deemed to constitute Tenant’s waiver of the
Due Diligence Contingency.
39. Commencement Date; Closing Conditions.
(a) Commencement Date. Following satisfaction or waiver of the Due Diligence
Contingency, Landlord and Tenant shall proceed in good faith to satisfy the conditions precedent
to the effectiveness of this Lease, which conditions precedent (the
“Closing
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Conditions”) are set forth below in this Section 39. The Commencement Date shall be later of (i)
the date that is fifteen (15) days following satisfaction or waiver of the Due Diligence
Contingency, or (ii) the date on which all the Closing Conditions are satisfied or waived in
writing by the party benefited by such Closing Condition. If all of Tenant’s closing conditions set
forth in subsection (b) below are not satisfied within ninety (90) days following satisfaction or
waiver of the Due Diligence Period, then Tenant may terminate this Lease at any time thereafter
upon written notice to Landlord, and following such termination neither party shall have any
further obligation to the other hereunder. Upon determination of the Commencement Date, Landlord
and Tenant shall enter into a confirmation of or an amendment to this Lease setting forth the
Commencement Date.
(b) Tenant’s Closing Conditions. Tenant’s conditions precedent to the
effectiveness of this Lease shall be as follows:
(1) Issuance of Leasehold Title Policy. It is a condition precedent to Tenant’s
obligations under this Lease that on the Commencement Date a title insurance company licensed and
authorized to write such coverage in the State of New Hampshire, reasonably acceptable to the
Tenant (the “Title Company”) shall issue to Tenant an ALTA extended coverage leasehold owner’s
policy of title insurance without survey exception, subject only to those title exceptions approved
by Tenant in writing (the “Permitted Title Exceptions”), with a liability limit determined by
Tenant. Tenant shall pay the premium for such policy. Landlord agrees to take such actions as the
Title Company may reasonably require, including but not limited to securing termination agreements
from existing tenants of the Property and delivering affidavits and indemnities, in order to cause
the Title Company to issue the policy required hereunder. All such actions in support of the
application and issuance of such policy shall be at Landlord’s sole cost and expense.
(2) Delivery of Non-Disturbance Agreement. It is a condition precedent to Tenant’s
obligations under this Lease that on the Commencement Date (i) Tenant shall have received from any
lender to Landlord whose loan is an Approved Title Exception a duly executed and acknowledged
agreement in form reasonably acceptable to Tenant, and in form suitable for recording, whereby such
lender agrees that such lender shall consent to this Lease and warrant that Tenant’s possession and
right of use under this Lease in and to the demised premises shall not be disturbed by such holder
unless and until Tenant shall breach any of the provisions hereof and this Lease or Tenant’s right
to possession hereunder shall have been terminated in accordance with the provisions of this Lease,
and (ii) such agreement shall be recorded against the Property.
(3) Assignment of Agreements. It is a condition precedent to Tenant’s obligations
under this Lease that on the Commencement Date Landlord shall assign to Tenant, by assignment
documents in form reasonably acceptable to Landlord and Tenant, all permits, licenses, contracts,
warranties and other intangible rights affecting the Property. Such assignments shall provide an
undertaking of Landlord to indemnify, defend and hold Tenant harmless from and against any damage,
claim or other liability arising out of the assigned agreements prior to the Commencement Date, and
an undertaking of Tenant to indemnify,
- 22 -
defend and hold Landlord harmless from and against any damage, claim or other liability arising out of the assigned agreements following the Commencement
Date.
(4) Termination of Tenant Leases. It is a condition precedent to Tenant’s obligations
under this Lease that as of the Commencement Date, Landlord shall deliver written evidence that the
Property and the demised premises are free and clear of all leases affecting the Property or the
demised premises and that any leases affecting the Property or the demised premises have been
terminated.
40. Removal of Main Lodge. The Tenant agrees that immediately upon execution of this
Ground Lease, the Tenant, at the Tenant’s sole expense, shall cause the main lodge located on the
Property to be demolished and removed, leaving the residual foundation in a safe condition,
acceptable to the local governmental authorities.
41. Coordination of Leases. The Tenant acknowledges that a portion of the Property set
forth in Exhibit A (the “Town Parcel”) is leased by the Landlord from the Town of Francestown, New
Hampshire (the “Town”), pursuant to a separate Lease dated as of 27 May 2003 (the “Town Lease”),
and is being subleased by the Landlord to the Tenant pursuant to this Ground Lease. Because of the
nature of the Town as a municipality, which by statute, applicable case law and other principles
cannot provide certain representations, undertake certain action, or be party to certain
activities, the provisions of this Ground Lease and the Town Lease must be coordinated, as set
forth in this Section 41, with the Tenant agreeing that for all purposes under this Ground Lease
the Town Parcel shall be held by the Tenant subject to the additional provisions in this Section
41.
(a) Representations and Warranties. Tenant acknowledges that under the Town Lease the
Town is making no representations or warranties in relation to the Town Parcel such as are
contained in Section 8 of the Ground Lease. Tenant acknowledges that the Town is only representing
that it is a municipal corporation under the laws of the State of New Hampshire and has the full
power to carry out the transactions contemplated in the Town Lease.
(b) Real Estate Taxes on Town Parcel. Notwithstanding the provisions of Section 4,
with regard to the Town Parcel, the Landlord shall be obliged to pay in a timely manner all real
estate taxes, in order to satisfy state statutory obligations which require termination of any
lease of town lands if the duly assessed personal and real estate taxes with regard to the Town
Parcel are not paid when due. The Landlord, upon making such payment, shall be entitled to
immediate reimbursement upon presentation to the Tenant of a copy of the real estate tax bills
involved and proof of payment. The Tenant acknowledges that, with regard to the Town Parcel, the
Town Lease contains a provision calling for immediate termination of the Town Lease if the real
estate taxes are not paid when due, to comply with the mandates of New Hampshire law applicable to
municipal corporations.
(c)
Development of the Property. The Tenant acknowledges that for purposes of Section
10 of the Ground Lease, the Town, in relation to the Town Parcel, would be an adverse party, either
directly or through other boards, commissions and/or local agencies, and therefore has no
obligation not to appear in opposition to any action or application referred to in
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Section 10. The Tenant specifically releases the Town from any and all liability with regard to actions taken by
any governmental agency which may have to approve of any aspect of the development of the Property.
(d) Government Regulations. The Tenant acknowledges that for purposes of Section 12 of
the Ground Lease, the Town has no obligation to cooperate with the Landlord or the Tenant in
relation to any matters which would pertain to the Town Parcel.
(e) Landlord’s Remedies. The Tenant acknowledges that for purposes of Section 19 of
the Ground Lease, the Town has no obligation with regard to the Town Parcel, with the Landlord
being solely and completely responsible for the use, enforcement and/or pursuit of any of Landlords
remedies with regard to the Property. The Town shall have no liability to the Tenant for any
actions of the Landlord in enforcing whatever remedies the Landlord may have under the Ground
Lease.
(f) Continuous Operations. The Tenant acknowledges that the inclusion of the Town
Parcel in the Property has been the result of negotiations among the Tenant, the Landlord and the
Town, based upon the assumption of continuous operations of a ski area on the Property. The Tenant,
as a specific inducement to the Landlord to enter into the Ground Lease and to assume the
obligations under the Town Lease, and to the Town to enter into the Town Lease with the Landlord,
represents and agrees that at all times during the term of the Ground Lease the Tenant shall
continuously operate a ski area on the Property. For purposes of this representation and agreement
of continuous operation, the phrase “continuously operate” shall mean that at no time shall two
consecutive seasons (which shall be defined as the period between 1 September of one calendar year
and 31 August of the following year) have less than thirty (30) days upon which at least one
hundred (100) skiers have paid for and been physically transported to the top of the ski area, by
ski lift, for purposes of skiing down the trails located on the Property. For purposes of this
representation and agreement of continuous operation, the phrase “skiing” shall mean alpine skiing,
involving skis, snowboards, or similar methods of planning over natural and/or artificial snow,
making a descent over trails, open slopes, or other surfaces, from a location reached by means of a
mechanical lifting system such as a ski lift.
(g) Permitted Uses. The Tenant agrees that for purposes of Section 16.(a) of the
Ground Lease, that no part of the Town Parcel (which is a portion of the overall Property) shall be
used for any purpose other than the operating of an alpine ski area, which would include towers,
power drives for skilifts, mechanical systems for skilifts, unloading equipment and structures for
those using a skilift, warming shacks for safety personnel (including ski patrol and lift
operators) necessary for operations, and ski trails; and shall not be used for a restaurant or any
similar food service, housing, concerts or public meetings, alpine slide (a mechanical system of
descent using carts or sleds), or other activities not specifically referred to in the first
portion of this Section 41.(g).
42. Force Majeure. If there shall occur any strikes, lockouts or labor disputes, inability to obtain adequate
sources of energy, labor or material or reasonable substitutes, acts of God, governmental
restrictions, regulations, orders, guidelines or programs, enemy or hostile governmental action,
riot, civil commotion, fire or other casualty or any other conditions,
- 24 -
whether similar or dissimilar to those enumerated above, which are beyond the reasonable control of any party to this
Lease and not due to the fault or negligence of such party or financial inability to perform, these
conditions shall be deemed “unavoidable delays”. If either party shall, as a result of any
unavoidable delay, fail to punctually perform any obligation specified in this Lease (other than
the payment of money), then such failure shall not be deemed a breach or default and the applicable
time periods in which to perform shall be extended, but only to the extent reasonable to account
for the unavoidable delay.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year first
above written.
WITNESS: | LANDLORD CROTCHED MOUNTAIN PROPERTIES, LLC |
||||
/s/ Xxxxxx X. Xxxxxxxx | By: | /s/ Xxxxx X. Xxxxxxx | |||
Xxxxx X. Xxxxxxx, Manager | |||||
WITNESS: | TENANT S N H DEVELOPMENT, INC. |
||||
/s/ Xxxxxx X. Xxxxxxxx | By: | /s/ Xxxxxxx X. Xxxx | |||
Xxxxxxx X. Xxxx | |||||
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EXHIBIT A
LEGAL DESCRIPTION OF DEMISED PREMISES
TRACT 1: Bennington Tax Map Sheet 12, Lot 1-D
A certain tract or parcel of land located on the southerly side of State Route 47, also known as
Francestown Road, in the TOWN OF BENNINGTON, COUNTY OF HILLSBOROUGH, State of New Hampshire, being
Lot 12-1D, containing 3.12 acres, more or less, as shown on plan entitled “Boundary Survey Property
of: Crotched Mountain Properties, LLC Bennington, N.H. South side of Xxxxx 00 (Xxxxxxxxxxx Xx.)
Dated June 20, 2002 Scale 1” = 100’ Survey By: Xxxxxx X. Xxxxxx, L.L.S. #590”, said plan to be
recorded in the Hillsborough County Registry of Deeds, being bounded and described as follows:
Beginning at a point on the southerly side of State Route 47, also known as Francestown Road, said
point being the northeasterly corner of the within described premises and the northwesterly corner
of Lot 12-1E as shown on said plan, now of Crotched Mountain Properties, LLC;
Thence S. 00° 30’ 00” E. a distance of 550.00 feet along said Lot 12-1E to a point at the Town Line
of the Town of Bennington and the Town of Francestown, said point being the southeasterly corner of
the within described premises and the southwesterly corner of Lot 12-1E as shown on said plan at
Lot 7-15, now of Crotched Mountain Properties, LLC;
Thence N. 77° 00’ 00” W. a distance of 245.00 feet along said Town Line and Lot 7-15 to a point at
a corner of said Town Line at Lot 12-1C as shown on said plan, now or formerly of Trailside
Development, Inc.;
Thence N. 64° 04’ 12” W. a distance of 150.00 feet along Lot 12-1C to a point, said point being the
southwesterly corner of the within described premises at Lot 12-1 as shown on said plan, now of
Crotched Mountain Properties, LLC;
Thence N.
33° 45’ 00” E. a distance of 290.00 feet along Lot 12-1 to a point;
Thence N.
00° 30’ 00” W. a distance of 189.50 feet along Lot 12-l to a point on the southerly side
of State Route 47, said point being the northwesterly corner of the within described premises and
the northeasterly corner of Lot 12-1;
Thence S. 89° 37’ 56” E. a distance of 209.36 feet along the southerly side of Xxxxx Xxxxx 00 to
the point or place of beginning.
Meaning
and intending to be Tract 1
in deed of Community Development Finance Authority to Crotched
Mountain Properties, LLC, dated March 13, 2002, and recorded in the Hillsborough County Registry of
Deeds at Volume 6599, Page 1651. See also Volume 6436, Page 2283.
Also including all remaining buildings and structures located on Xxx 00-0X xx xxx Xxxx xx
Xxxxxxxxxx, Xxxxxx of Hillsborough and State of New Hampshire being the 2nd Tract in
deed of the Town of Bennington to Crotched Mountain Properties, LLC, dated 05/15/02 and recorded in
the Hillsborough County Registry of Deeds at volume 6637, Page 954. See also Volume 6052, Page
1512.
* * *
TRACT 2: Francestown Tax Map Sheet 7, Lot 15
A certain tract or parcel of land located on the southerly side of State Route 47, also known as
the Francestown Road, in the TOWN OF FRANCESTOWN, COUNTY OF HILLSBOROUGH, State of New Hampshire,
being Lot 7-15, containing 216.5 acres, more or less, as shown on plan entitled “Boundary Survey
Xxx 0-00 Xxxxxxxx
- 0 -
Xxxxxxxx
Xxxxxxxxxx, XXX Xxxxxxxxxxx, X.X. Xxxxxxxxxxxx Xxxxxx Dated April 20, 2002 Scale 1” =
200’, Xxxxxx X. Xxxxxx, L.L.S. #590”, said plan to be recorded in the Hillsborough County Registry
of Deeds, being bounded and described as follows:
Beginning at a point in a stone wall on the southerly side of State Route 47, said point being the
northeasterly corner of the within described premises and the northwesterly corner of Lot 7-14 as
shown on said plan, now of Xxxxxxx X. & Xxxxxxx Xxxxxxx;
Thence S. 00° 30’ E. a distance of 487.80 feet along a stone wall and said Xxxxxxx land to point at
a corner of stone walls;
Thence S. 71° 20’ E. a distance of 282.8 feet along a stone wall to a point at the end of said
stone wall;
Thence S. 79° 30’ E. a distance of 131.9 feet along said Xxxxxxx land to a point at the beginning
of the stone wall on the westerly sideline of Mountain Road;
Thence S. 05° 39’ E. a distance of 302.5 feet along said stone wall and the westerly sideline of
Mountain Road to a point at an intersection of stone walls, said point being the northeasterly
corner of Lot 7-13 as shown on said plan, now of Xxxx X. Xxxxx & Xxxx Xxxx X. Xxxxx;
Thence N. 85° 32’ W. a distance of 429.1 feet along a stone wall and said Perry land to a point at
an intersection of stone walls, said point being the northeasterly corner of Lot 7-12 as shown on
said plan, now of Xxxx X. XxxXxxxxx, Trustee;
Thence N. 82° 30’ W. a distance of 271 feet along said stone wall and said Trustee land to an iron
pin at a corner of said stone wall;
Thence S. 18° 13’ 47” W. a distance of 554.89 feet along said stone wall to a point at the end of
said stone wall at or near an abandoned road;
Thence S. 20° 59’ W. a distance of 12.00 feet to a point at or in said abandoned road;
Thence N. 61° 48’ 26” W. a distance of 165.95 feet along said abandoned road to a point;
Thence N. 47° 30’ 00” W. a distance of 199.62 feet along said abandoned road to a point;
Thence N. 60° 00’ 00” W. a distance of 86.00 feet along said abandoned road to a point;
Thence N. 70° 00’ 00” W. a distance of 199.24 feet along said abandoned road to a point;
Thence N. 69° 15’ 00’’ W. a distance of 199.90 feet along said abandoned road to a point;
Thence S. 29° 00’ W. a distance of 18.00 feet in said abandoned road to a point at an intersection
of stone walls at Lot 7-6 as shown on said plan, now of the Town of Francestown;
Thence S. 07° 44’ 30” W. a distance of 1127.05 feet along said stone wall and Lot 7-6 to a point;
Thence N. 80° 21’ 40” W. a distance of 801.07 feet along Lot 7-6 and partially along a stone wall
to a point;
Thence S. 78° 00’ W. a distance of 98.48 feet along Lot 7-6 to a point at a stone wall;
Thence N. 81° 02’ 40” W. a distance of 264.86 feet along Lot 7-6 and partially along a stone wall
to a point;
Thence S.
52° 00’ W. a distance of 215.32 feet along Lot 7-6 and partially along a stone wall to a point at the end of said stone wall;
- 4 -
Thence S, 89° 15’ W. a distance of 1000.88 feet along Lot 7-6 to a Town Line stone monument at the
Town Line of the Town of Bennington and the Town of Francestown at Lot 5-5 as shown on said plan,
now of Xxxxx & Xxxxxxxx Xxx Xxxxxxx;
Thence N.
80° 09’ 55” W. a distance of 835.49 feet along the Town Line and Lot 5-5 to a point at an
intersection of stone walls, said point being the southwesterly corner of the within described
premises at Lot 12-8 as shown on said plan, now of Crotched Mountain Properties, LLC;
Thence N. 07° 18’ 33” E. a distance of 2692.6 feet along the Town Line, said stone wall and Lot
12-8 to a point on the southerly side of Onset Road;
Thence N. 32° 35’ E. a distance of 59.74 feet across Onset Road to a point at a corner of stone
walls at Lot 12-4 as shown on said plan, now of Xxxxxx X. Xxxxxxxx, et al;
Thence N. 06° 54’ 17” E. a distance of 739.00 feet along the Town Line, a stone wall, Xxx 00-0, Xxx
00-0 as shown on said plan, now of Xxxxx Xxxxx, and Lot 12-6 as shown on said plan, now of Xxxx X.
Xxxxxxxx, to a point at an intersection of stone walls at Lot 12-1B as shown on said plan, now of
Crotched Mountain Properties, LLC, said point being the northwesterly xxxxx of the within described
premises;
Thence S. 84° 45’ 40” E. a distance of 602.56 feet along the Town Line, a stone wall and Lot 12-1B
to a point at a corner of said stone wall;
Thence N.
07° 00’ E. a distance of 42.5 feet along the Town Line, said stone wall and Lot 12-1B to
a point at a corner of said stone wall;
Thence S. 81° 10’ 50” E. a distance of 410.69 feet along the Town Line, Lot 12-1B and partially
along a stone wall to a point at Lot 12-1A as shown on said plan, now of Crotched Mountain
Properties, LLC;
Thence S. 06° 31’ 48” W. a distance of 495.07 feet along the Town Line, partially along a stone
wall and Lot 12-1A to a point at Lot 12-1C as shown on said plan, now or formerly of Trailside
Development, Inc.;
Thence S. 07° 05’ 59” W. a distance of 277.00 feet along the Town Line and Lot 12-1C to a point;
Thence S. 02° 24’ 31” W. a distance of 517.58 feet along the Town Line and Lot 12-1C to a point;
Thence S. 51° 15’ 50” E. a distance of 104.64 feet along the Town Line, partially along a stone
wall and Lot 12-1C to a point;
Thence S. 52° 42’ 00” E. a distance of 508.51 feet along the Town Line and Lot 12-1C to a point;
Thence S. 56° 49’ 20” E. a distance of 442.61 feet along the Town Line and Lot 12-1C to a point at
the beginning of a stone wall;
Thence S. 65° 49’ 14” E. a distance of 276.07 feet along the Town Line, Lot 12-1C and along said
stone wall to a point at a corner of stone walls;
Thence N. 11° 00’ 20” E. a distance of 924.00 feet along the Town Line, partially along a stone
wall and Lot 12-1C to a point at Lot 12-ID as shown on said plan, now of Crotched Mountain
Properties, LLC;
Thence S. 77° 00’ 00” E. a distance of 1040.14 feet along the Town Line, Lot 12-1D and Lot 12-1E as
shown on said plan, now of Crotched Mountain Properties, LLC, to a point at a corner of said Town
Line;
Thence N.
05° 80’ E. a distance of 173.00 feet along the Town Line
and Lot 12-1E to a point at Lot
7-16 as shown on said plan, now of Xxxxxxx X. & Xxxxxx X. Fanes;
Thence N. 82° 09’ 43” E. a distance of 203.50 feet along Lot 7-16 to a point on the southerly side
of Route 47;
- 5 -
Thence S. 69° 30’ 06” E. a distance of 338.64 feet along the southerly side of Route 47 to a
point at the beginning of a stone wall;
Thence S. 66° 75’ 10” E. a distance of 236.12 feet along the southerly side of Route 47 and said
stone wall to a point;
Thence S. 59° 20’ 20” E. a distance of 123.40 feet along the southerly side of Route 47 and said
stone wall to the point or place of beginning.
Meaning and intending to be the Tract II of land in deed of Community Development Finance Authority
to Crotched Mountain Properties, LLC, dated March 13, 2002, and recorded in the Hillsborough County
Registry of Deeds at Volume 6599, Page 1615. See also Volume 6436, Page 2283.
Also included herein is all of Crotched Mountain Properties, LLC’s interest in Onset Road
contiguous to the northerly sideline of the within described premises as shown on said plan.
Meaning and intending to be a portion of Tract II of land in deed of Community Development Finance
Authority to Crotched Mountain Properties, LLC, dated March 13, 2002, and recorded in the
Hillsborough County Registry of Deeds at Volume 6599, Page 1651. See also Volume 6436, Page 2283.
Said
parcel is also a part of Lot 7-15 as shown on plan entitled “Boundary Survey Xxx 0-00 Xxxxxxxx
Xxxxxxxx Xxxxxxxxxx, XXX Xxxxxxxxxxx, X.X. Xxxxxxxxxxxx Xxxxxx Dated April 20, 2002 Scale 1”=200’
Xxxxxx X. Xxxxxx, LLS #590”, said plan to be recorded in the Hillsborough County Registry of Deeds.
* * *
TRACT 3: Bennington Tax Map Sheet 12, Lot 1
A certain tract or parcel of land located on the southerly side of State Route 47, also known as
Francestown Road, in the TOWN OF BENNINGTON, COUNTY OF HILLSBOROUGH, State of New Hampshire, being
Lot 12-1, containing 9.87 acres, more or less, as shown on plan entitled “Boundary Survey Property
of: Crotched Mountain Properties, LLC South side of Route 00 (Xxxxxxxxxxx Xxxx) Xxxxxxxxxx, X.X.
Xxxxxxxxxxxx Xxxxxx Dated June 28, 2002 Scale 1”= 100’ Survey By: Xxxxxx X. Xxxxxx, LLS #590”, said
plan to be recorded in the Hillsborough County Registry of Deeds, being bounded and described as
follows:
Beginning at a point on the southerly side of State Route 47, said point being the northeasterly
corner of the within described premises at Lot 12-1D as shown on said plan, now of Crotched
Mountain Properties, LLC;
Thence S. 00° 30’ 00” E. a distance of 189.50 feet along Lot 12-1D to a point;
Thence S. 33° 45’ 00” W. a distance of 290.00 feet along Lot 12-1D to a point, said point being the
southeasterly corner of the within described premises at Lot 12-1C as shown on said plan, now or
formerly of Trailside Development, Inc.;
Thence N. 64° 04’ 12” W. a distance of 1023.76 feet along Lot 12-1C to a point, said point being
the southwesterly corner of the within described premises at Lot 12-1A as shown on said plan, now of
Crotched Mountain Properties, LLC;
Thence N. 43° 34’ 40” E. a distance of 575.00 feet along Lot 12-1A to a point on the southerly side
of Route 47, said point being the northwesterly corner of the within described premises and the
eastern most point of Lot 12-1A as shown on said plan;
Thence S. 42° 28’ 28” E. a distance of 207.58 feet along the southerly side of Route
47 to a point;
Thence S. 47° 02’ 16” E. a distance of 191.31 feet along the southerly
side of Route 47 to a point;
- 6 -
Thence S. 55° 36’ 14” E. a distance of 157.55 feet along the southerly side of Route 47 to a point;
Thence S. 72° 53’ 50” E. a distance of 136.01 feet along the southerly side of Route 47 to a point;
Thence S. 81° 38’ 15” E. a distance of 145.16 feet along the southerly side of Route 47 to the
point or place of beginning.
Meaning and intending to be the
lst tract in deed of the Town of Bennington to Crotched Mountain
Properties, LLC, dated May 15, 2002, and recorded in the Hillsborough County Registry of Deeds at
Volume 6637, Page 954. See also Volume 5690, Page 727.
* * *
TRACT 4: Bennington Tax Map Sheet 12, Lot 1-A
A certain tract or parcel of land located on the southerly side of State Route 47, also known as
Francestown Road, and the southeasterly side of Onset Road in the TOWN OF BENNINGTON, COUNTY OF
HILLSBOROUGH, State of New Hampshire, being Lot 12-1A, containing 6.63 acres, more or less, as
shown on plan entitled “Boundary Survey Property of: Crotched Mountain Properties, LLC South side
of Route 00 (Xxxxxxxxxxx Xxxx) Xxxxxxxxxx, X.X. Xxxxxxxxxxxx Xxxxxx Dated June 28, 2002 Scale 1”=
100’ Survey By: Xxxxxx X. Xxxxxx, L.L.S. #590”, said plan to be recorded in the Hillsborough County
Registry of Deeds, being bounded and described as follows:
Beginning at a point on the southerly side of Route 47 and the southeasterly side of Onset Road,
said point being the northeast corner of the within described premises;
Thence S. 18° 40’ 46” E. a distance of 132.79 feet along the southerly side of Route 47 to a point;
Thence S. 26° 52’ 11” E. a distance of 168.15 feet along the southerly side of Route 47 to a point;
Thence S. 34° 37’ 24” E. a distance of 144.02 feet along the southerly side of Route 47 to a point,
said point being the eastern most point of the within described premises at and the northwesterly
corner of Lot 12-1 as shown on said plan, now of Crotched Mountain Properties, LLC;
Thence S. 43° 34’ 40” E. a distance of 575.00 feet along Lot 12-1 to a point at Lot 12-1C as shown
on said plan, now or formerly of Trailside Development, Inc., said point being the southwesterly
corner of Lot 12-1 as shown on said plan;
Thence S. 43° 34’ 40” W. a distance of 40.00 feet along Lot 12-1C to a point, said point being the
southern most point of the within described premises;
Thence N. 48° 20’ 00” W. a distance of 195.00 feet along Lot 12-1C to a point at the Town Line of
the Town of Bennington and the Town of Francestown, said point being the southwesterly corner of
the within described premises at Lot 7-15, now of Crotched Mountain Properties, LLC;
Thence N.
06° 31’ 48” E. a distance of 635.00 feet along Lot
7-15, through a corner of the Town Line
of the Town of Bennington and the Town of Francestown and along Lot
12-1B as shown on said plan,
now of Crotched Mountain Properties, LLC, to a point on the southeasterly side of Onset Road, said
point being the northwesterly corner of the within described premises;
Thence N. 75° 02’ 55” E. a distance of 307.45 feet along the southeasterly side of Onset Road to
the point or place of beginning.
Meaning and intending to be the
3rd tract in deed of the Town of Bennington to Crotched Mountain
Properties, LLC, dated May 15, 2002, and recorded in the Hillsborough County Registry of Deeds at
Volume 6637, Page 954. See also Volume 5690, Page 727.
- 7 -
* * *
TRACT 5: Bennington Tax Map Sheet 12, Lot 1-B
A certain tract or parcel of land located on the westerly side of State Route 47, also known as
Francestown Road, in the TOWN OF BENNINGTON, COUNTY OF HILLSBOROUGH, State of New Hampshire, being
Lot #12-1B, containing 21.1 acres, more or less, as shown on plan entitled “Subdivision Lot 12 — 13
(sic) Crotched Mountain Properties, LLC Bennington, N.H. Hillsborough County” dated July, 2002
Scale 1” = 100’ Xxxxxx X. Xxxxxx, L.L.S., said plan to be recorded in the Hillsborough County
Registry of Deeds, being the 4th tract in deed of the Town of Bennington to Crotched
Mountain Properties, LLC, dated May 15, 2002, and recorded in the Hillsborough County Registry of
Deeds at Volume 6637, Page 954. See also Volume 5690, Page 727.
Subject to restrictions and rights noted on said plan.
Reserved and excepted from this conveyance are Subdivided Parcel A, containing 5.00 acres, and
Subdivided Parcel B, containing 5.07 acres, as shown on said plan, bounded and described as
follows:
SUBDIVIDED PARCEL A: A certain tract or parcel of land located on the southerly side of Onset Road
in the TOWN OF BENNINGTON, COUNTY OF HILLSBOROUGH, State of New Hampshire, being Lot #1,
containing 5.00 acres, as shown on plan entitled “Subdivision Lot 12 — 13(sic) Crotched Mountain Properties, LLC
Bennington, N.H. Hillsborough County” dated July, 2002 Xxxxxx X. Xxxxxx, L.L.S., said plan being recorded in
the Hillsborough County Registry of Deeds as Plan #________ , being bounded and described as follows:
Beginning
at a point on the southerly side of Onset Road, said point being the
northwesterly corner
of the within described premises at land of Xxxx Xxxxxxxx;
Thence S. 65° 48’ 04” E. a distance of 183.23 feet along the southerly side of Onset Road to a
point;
Thence S. 63° 26’ 05” E. a distance of 178.88 feet along the southerly side of Onset Road to a
point, said point being the northeasterly corner of the within described premises and the
northwesterly corner of Lot #2 as shown on said plan;
Thence S. 10° 18’ 57” W. a distance of 604.60 feet along Lot #2 to a point in a stone wall on the
Town Line of The Town of Bennington and The Town of Francestown, said point being the southeasterly
corner of the within described and the southwesterly corner of Lot #2 at other land of Crotched
Mountain Properties, LLC;
Thence N. 84° 45’ 40” W. a distance of 307.56 feet along said stone wall and said Town Line to a
point at an intersection of stone walls, said point being the southwesterly corner of the within
described premises at land now of Xxxx X. Stumfol;
Thence N. 6° 54’ 17” E. a distance of 727.13 feet along a stone wall, said Stumfol land, land now
of South Face Condo Assn., land of Xxxxx and Xxxxx London, land of Xxxxx Xxxxxxxxxx and Xxxxxxxx
Xxxxxxxx and along said Xxxxxxxx land to the point or place of beginning.
Meaning and intending to be a portion Tract #4 in deed of The Town of Bennington to Crotched
Mountain Properties, LLC, dated May 15, 2002, and recorded in the Hillsborough County Registry of
Deeds at Volume 6637, Page 954. See also Volume 6052, Page 1512 and Volume 5690, Page 727.
Subject to restriction as to Tax Lot 12-001-B as stated in said deed at Volume 6637, Page 954.
Said Subdivided Parcel A, containing 5.00 acres, shall not be further subdivided.
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SUBDIVIDED
PARCEL B: A certain tract or parcel of land located on the southerly side of Onset Road
in the TOWN OF BENNINGTON, COUNTY OF HILLSBOROUGH, State of New Hampshire, being Lot #2,
containing 5.07 acres, as shown on plan entitled “Subdivision Lot 12 — 13(sic) Crotched Mountain Properties, LLC
Bennington, N.H. Hillsborough County” dated July, 2002 Xxxxxx X. Xxxxxx, L.L.S., said plan being recorded in
the Hillsborough County Registry of Deeds as Plan # ______, being bounded and described as follows:
Beginning
at a point on the southerly side of Onset Road, said point being the
northwesterly corner
of the within described premises and the northeasterly corner of Lot #1 as shown on said plan;
Thence S. 61° 41’ 57” E. a distance of 295.30 along the southerly side of Onset Road to a point;
Thence S. 51° 20’ 25” E. a distance of 64.08 feet along the
southerly side of Onset Road to a point;
Thence S. 45° 00’ 00” E. a distance of 56.57 feet along the southerly side of Onset Road to a
point;
Thence S. 26° 33’ 54” E. a distance of 67.08 feet along the southwesterly side of Onset Road to a
point;
Thence S. 18° 26’ 06” E. a distance of 158.11 feet along the southwesterly side of Onset Road to a
point, said point being the northeasterly corner of the within described premises at the remainder
lot as shown on said plan now of Crotched Mountain Properties, LLC;
Thence S. 37° 57’ 58” W. a distance of 211.25 feet along said remainder lot to a point in a stone
wall, said point being the southeasterly corner of the within described premises at the Town Line
of The Town of Bennington and The Town of Francestown;
Thence N. 81° 10’ 50” W. a distance of 110.69 feet along said stone wall and said Town Line to a
corner of said walls;
Thence S. 07° 00’ 00” W. a distance of 42.50 feet along said stone wall and said Town Line to point
at the corner of said stone wall;
Thence N. 84° 45’ 40” W. a distance of 295.00 feet along said stone wall and said Town Line to a
point, said point being the southwesterly corner of the within described premises and the
southeasterly corner of Lot #1;
Thence N. 10° 18’ 57” W. a distance of 604.60 feet along Lot #1 to the point or place of beginning.
Meaning and intending to be a portion of Tract #4 in deed of The Town of Bennington to Crotched
Mountain Properties, LLC, dated May 15, 2002, and recorded in the Hillsborough County Registry of
Deeds at Volume 6637, Page 954. See also Volume 6052, Page 1512 and Volume 5690, Page 727.
Subject to restriction as to Tax Lot 12-001-B as stated in said deed at Volume 6637, Page 954.
Said Subdivided Parcel B, containing 5.07, acres shall not be further subdivided.
* * *
TRACT 6: Easements and Rights located on Bennington Tax Map Sheet 12, Lot 1-C
Certain easements and rights located on the southerly side of State Route 47, also known as
Francestown Road, in the TOWN OF BENNINGTON, COUNTY OF HILLSBOROUGH State of New Hampshire, being
on Lot 12-1C as shown on the Town of Bennington Tax Map, containing approximately 25.15 acres and
being the 5th tract in deed of the Town of Bennington to Crotched Mountain Properties,
LLC, dated May 15, 2002, and recorded in the Hillsborough County Registry of Deeds at Volume 6637,
Page 924. See also Volume 5690, Page 727, said easements and rights are more particularly described
in deed of Monadnock Business Ventures, Inc., dated
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December 29, 1994 to EaSTAR Ventures, LLC, recorded in the Hillsborough County Registry of Deeds at
Volume 5601, Page 1043, as follows:
“(1)
The right to pass and xxxxxx in common with others by vehicle or otherwise over and along
East Road, so-called;
(2) The right to construct, maintain, use, improve and keep in repair ski slopes on land
marked “Ski Easement” on Sheet #1 and #2 on a plan entitled “Subdivision of Land of
Francestown Mountain Land Associates in Francestown, New Hampshire” by Xxxxx Engineering,
Inc. dated September 8, 1972, together with the right to install, maintain and operate
thereon for such purposes appropriate temporary or permanent mechanical equipment and such
other related facilities as Ski Crotched, Incorporated, its heirs, successors and assigns may
require.
(3) The right to use, improve, repair and maintain the existing parking lot as shown on Sheet
#1 of said plan entitled “Subdivision of Land of Francestown Mountain Land Associates in
Francestown, New Hampshire” by Xxxxx Engineering, Inc. dated September 8, 1972.
EXCEPTING AND RESERVING from the rights granted in paragraphs (2) and (3) above the right to
construct and maintain roads and necessary services as required by the Francestown Planning Board
in connection with the grantor’s proposed “Condominium III” subdivision substantially as is shown
on the above-described plan dated September 8, 1972 and also the right to construct one tier of
condominium units on the northerly portion of said “Ski Easement”.
Reference is also made to Tract #4 as shown on Hillsborough County Registry of Deeds Plan #19612
and Hillsborough County Registry of Deeds Plan #20382.
* * *
TRACT 7: Bennington Tax Map Sheet 12, Lot 1-E
A certain tract or parcel of land located on the southerly side of State Route 47, also known as
Francestown Road, in the TOWN OF BENNINGTON, COUNTY OF HILLSBOROUGH, State of New Hampshire, being
Lot 12-1E, containing 9.06 acres, more or less, as shown on plan entitled “Boundary Survey Property
of: Crotched Mountain Properties, LLC Bennington, N.H. South side of Xxxxx 00 (Xxxxxxxxxxx Xx.)
Dated June 20, 2002 Scale 1” = 100’ Survey By: Xxxxxx X. Xxxxxx, L.L.S. #590”, said plan to be
recorded in the Hillsborough County Registry of Deeds, being bounded and described as follows:
Beginning at a point on the southerly side of State Route 47, also known as Francestown Road, said
point being the northeasterly corner of the within described premises and the northwesterly corner
of Lot 7-16, now or formerly of Xxxxxxx X. & Xxxxxx X. Xxxxxx, on the Town Line of the Town of
Bennington and the Town of Francestown;
Thence S. 05° 30’ W. a distance of 273.00 feet along the Town Line, Lot 7-16 and Lot 7-15, now of
Crotched Mountain Properties, LLC, to a point, said point being the southeasterly corner of the
within described premises;
Thence N. 77° 00’ 00” W. a distance of 795.14 feet along the Town Line and Lot 7-15 to a point,
said point being the southwesterly corner of the within described premises and the southeasterly
corner of Lot 12-1D as shown on said plan, now of Crotched Mountain Properties, LLC;
Thence N. 00° 30’ 00” W. a distance of 550.00 feet along Lot 12-1D to a point on the southerly side
of State Route 47, said point being the northwesterly corner of the within described premises and
the northeasterly corner of Lot 12-1D;
Thence N. 87° 15’ 12” E. a distance of 72.11 feet along the southerly side of Route 47
to a point;
Thence S. 85° 25’ 34” E. a distance of 125.40 feet along the southerly side
of Route 47 to a point;
Thence S. 77° 11’ 45” E. a distance of 112.81 feet along the
southerly side of Route 47 to a point;
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Thence S. 63° 26’ 06” E. a distance of 100.62 feet along the southerly side of Route 47 to a point;
Thence S. 46° 48’ 22” E. a distance of 314.11 feet along the southerly side of Route 47 to a point;
Thence S. 43° 37’ 10” E. a distance of 117.41 feet along the southerly side of Route 47 to a point;
Thence S. 50° 46’ 40” E. a distance of 127.40 feet along the southerly side of Route 47 to the
point or place of beginning.
Meaning
and intending to be the 6th tract in deed of the Town of Bennington to Crotched Mountain
Properties, LLC, dated May 15, 2002, and recorded in the Hillsborough County Registry of Deeds at
Volume 6637, Page 954. See also Volume 5690, Page 727.
* * *
TRACT 8: Bennington Tax Map Sheet 12, Lot 8
A certain tract or parcel of land located on the southerly side of Onset Road in the TOWN OF
BENNINGTON, COUNTY OF HILLSBOROUGH, State of New Hampshire, being Lot 12-8, containing 62.0 acres,
more or less, as shown on plan entitled “Boundary Survey Property of: Crotched Mountain Properties,
L.L.C. South side of Onset Road Bennington, N. H. Hillsborough County
Dated July 26, 2002 Scale 1” =
200’ Survey By: Xxxxxx X. Xxxxxx, LLS #590”, to be recorded in the Hillsborough County Registry of
Deeds, being bounded and described as follows:
Beginning at a point in a stone wall on the Town Line of the Town of Bennington and the Town of
Francestown on the southerly side of a private road as shown on said plan, said point being the
northeasterly corner of the within described premises at Lot 7-15 as shown on said plan, now of
Crotched Mountain Properties, L.L.C.;
Thence S. 07° 18’ 33” W. a distance of 2692.6 feet along the Town Line, said stone wall and Lot
7-15 to a point in a corner of said stone wall, said point being the
southeasterly corner of the
within described premises at Lot 5-5 as shown on said plan, now of Xxxxx & Xxxxxxxx Xxx Xxxxxxx;
Thence N. 82° 00’ W. a distance of 293.44 feet along a stone wall and Lot 5-5 to
a point;
Thence N. 80° 00’ W. a distance of 195.63 feet along said stone wall and
Lot 5-5 to a point;
Thence N. 81° 00’ W. a distance of 293.44 feet along said
stone wall and Lot 5-5 to a point;
Thence N. 81° 00’ W. a distance of 252.12 feet along said stone wall and Lot 5-5 to a point at an
intersection of stone walls, said point being the northwesterly corner of the within described
premises at Lot 5-4 as shown on said plan, now of Xxxxxxx X. Xxxxxx & Xxxxx Xxx Xxxxxx, Trustees;
Thence N. 05° 00’ E. a distance of 1073.5 feet along a stone wall and Lot 5-4 to a point;
Thence N.
06° 45’ E. a distance of 400.0 feet along said stone wall and Lot 5-4 to a point;
Thence N. 09° 30’ E. a distance of 100.0 feet along said stone wall and Lot 5-4 to a point;
Thence N. 06° 30’ E. a distance of 100.0 feet along said stone wall and Lot 5-4 to a point;
Thence N. 08° 10’ E. a distance of 287.0 feet along said stone wall and Lot 5-4 to a point at a
corner of said stone walls;
Thence S. 62° 00’ E. a distance of 69.0 feet along said stone wall and Lot 5-4 to an iron pin in
said stone wall;
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Thence N. 30° 39’ 30” E. a distance of 796.34 feet along said stone wall and Lot 5-4 to a point on
the southerly side of Onset Road, said point being the northwesterly corner of the within described
premises;
Thence S. 82° 56’ 30” E. a distance of 696.82 feet partially along a stone wall and along the
southerly side of Onset Road to the point or place of beginning.
Meaning
and intending to be the 7th tract, purporting to contain 59 acres, in deed of the Town of
Bennington to Crotched Mountain Properties, LLC, dated May 15, 2002, and recorded in the
Hillsborough County Registry of Deeds at Volume 6637, Page 954. See also Volume 5690, Page 727.
Subject to the following:
Possible reservation of Xxxxxxxx Xxxxxxx, Xx. of camp building affecting Tract 3 as described
in deed dated November 4, 1948, and recorded at Book 1206, Page 252.
Possible reservation to Xxxxxxx X. Xxxxxxxx of lumberman’s camp building located near the Old
Greenfield Road, as described in a deed dated June 18,1951, and recorded at Book 1294, Page 74.
Reservation to Xxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxxxxx of a pumphouse, related easements
and spring rights as described in the deed of Xxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxxxxx to Xxxxx
Xxxxx dated July 15, 1966, and recorded at Book 1890, Page 133.
Utility easement granted to Public Service Company of New Hampshire and Contoocook Valley
Telephone Company, Inc., by instrument dated July 7, 1969, and recorded at Book 2058, Page 83.
Order approving existing dam granted by the New Hampshire Water Resources Board dated October
8, 1980, and recorded at Book 2421, Page 343.
Easement (ROW to Onset Village Subdivision) granted to Granite State Savings Bank by deed
dated March 28, 1977, and recorded at Book 2519, Page 287.
Order and new dam registration containing conditions granted by the New Hampshire Water
Resources Board dated October 8, 1980, and recorded at Book 2797, Page 319.
Easement
granted to the Town of Bennington by instrument dated March 19, 1986, and recorded at
Book 3529, Page 670.
Drainage easement granted to the Town of Bennington by instrument dated June 11, 1986, and
recorded at Book 3578, Page 902.
Access easement over former Bennington-Francestown Road granted to Xxxxxx X. Xxxxxxxx, Xxxxxx
X. Xxxxxxx, Xxxx X. Xxxxxxxx, and Xxxxxxx X. Xxxxxx by instrument dated November 12, 1986, and
recorded at Book 3807, Page 317.
Deed of Restrictive Covenants granted to Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx
Leasing Partnership, and Xxxx X. Xxxxxxxx by instrument dated December 23,1986, and recorded at
Book 3896, Page 97.
Declaration of Covenants, Easements and Restrictions dated January 7, 1987, and recorded at Book 3896, Page 104. |
LEASEHOLD interests granted by Trailside Development, Inc. to CMATC Associates, by Lease
Agreement dated September 7, 1987, and recorded at Book 4384, Page 160, subleased to Crotched
Mountain Ski Club, Inc. by instrument dated September 7, 1987, and recorded at Book 4502, Page 189.
Easements and rights contained in the Declaration of Mountainside at Crotched Mountain
Condominium dated December 18, 1987, and recorded at Book 4553, Page 280.
Restrictions on use contained in deed of Town of Bennington to Crotched Mountain Properties,
LLC dated May 15, 2002, and recorded at Book 6637, Page 954.
Claims arising from the taking of Tracts 4 through 10 by tax deed by the Town of Bennington, New Hampshire. |
Agreement between Community Development Finance Authority and Crotched Mountain Properties,
LLC dated December 4, 2001 secured by #18 hereafter.
Mortgage from Crotched Mountain Properties, LLC to Community Development Finance Authority
dated March 15, 2002 in the original principal amount of $300,000.00 recorded as Instrument
#2029071.
Ex Parte Mechanic’s Lien attachment regarding Maine Drilling & Blasting, Inc. v. Crotched
Mountain Properties, LLC, State of New Hampshire, Superior Court, Hillsborough North Docket
#03-C-098 in the amount of $179,932.00 recorded in the Hillsborough County Registry of Deeds at
Volume 6834, Page 773.
Subject to notes on aforementioned plans and plans referred to thereon. |
* * *
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TOWN PARCEL (Referred to in Section 41)
Plus the following two Tracts which are subleased pursuant to the terms of a Lease between the Town
of Francestown, NH, and Crotched Mountain Properties, LLC:
Two (2) certain tracts or parcels of land located in the Town of Francestown, County of
Hillsborough, State of New Hampshire, being Parcel A, containing 31.0 acres, more or less(Tract 9
in this Appendix A to the Ground Lease), and Parcel B, containing 1.7 acres, more or less (Tract 10
in this Appendix A to the Ground Lease), as shown on plan entitled “Property of: Town of
Francestown Plan for: Crotched Mountain Ski Area S.N.H. Development Corporation Division of Peaks
Resorts, Inc., Francestown, N.H. Hillsborough County September 24, 2002 Revised: Oct. 23, 2002
Scale 1”=200’ Surveyed by Xxxxxx X. Xxxxxx, L.L.S. #590”, said plan to be recorded in the
Hillsborough County Registry of Deeds, being bounded and described as follows:
TRACT 9:
Beginning at a stone in the northwest corner of the parcel to be leased, on the town line between
Francestown and Bennington, abutting land of Crotched Mountain Properties, LLC, then proceeding N
89°15’ E a distance of 1,000.88 feet to a stone wall; thence N 52°00’ E a distance of 215.32 feet
along the stone wall; thence S 81°02’40” E a distance of 264.86 feet partially along a stone wall;
thence N 78°00’ E a distance of 98.48 feet to a stone wall; thence S 80°21’40” E a distance of
450.0 feet along a stone wall, to the northeast corner of the parcel;
Thence S 44°58’20” W a distance of 1,063.37 feet; thence N 84°48’53” W a distance of 300 feet;
thence S 21°43’50” W a distance of 500.0 feet to a
point at the southeast corner of the parcel;
Thence N 50°01’15” W a distance of 1,068.24 feet to a point at the southwest corner of the parcel;
Thence N 15°30’ E a distance of 140.0 feet; thence N 09°00’ E a distance of 200.0 feet; thence N
06°14’ E a distance of 122.0 feet to the point of beginning.
* * *
TRACT 10:
Beginning at a corner of stone walls constituting the northern most point of a triangle, abutting
Mountain Road and abutting land of Crotched Mountain Properties, LLC, thence S 69°15’ E a distance
of 199.90 feet along Mountain Road; thence S 70°00’ E a distance of 95.0 feet along Mountain Road
to the southeast corner of the parcel;
Thence S 49°49’ W a distance of 538.94 feet to a point on a stone wall to the southwest corner of
the parcel;
Thence N 07°44’30” E
along a stone wall a distance of 500.00 feet; thence N 29°00’ E a distance of
18.0 feet to the point of beginning.
* * *
Tract 9 and Tract 10 meaning and intending to be a portion of the same premises conveyed to the
Town of Francestown by Foreclosure Deed of the United States Cellular Corporation, dated June
12, 2000, and recorded in the Hillsborough County Registry of Deeds at Volume 6275, Page 1095. See
also Volume 5601, Page 1060 and Volume 5601, Page 1043. Reference is also made to Hillsborough
County Registry of Deeds Plans #9326 and #4224.
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EXHIBIT B
Annual Rent
Commencing on the Commencement Date, the Annual Rent shall be as follows:
YEARS | ANNUAL RENT | |||
1-5
|
$12,500.00 | |||
6-15
|
Greater of $17,500.00 or one percent (1%) of total gross revenues | |||
16-30
|
Greater of $20,000.00 or one percent (1%) of total gross revenues | |||
31-50
|
Greater of $22,000.00 or one percent (1%) of total gross revenues | |||
Option Periods
|
Ten percent (10%) increase of the minimum dollar amount of the annual rent for each option period with percent of total gross revenues remaining the same. |
If the Tenant sells or assigns its interest in this Lease to a person or entity, other than the
Tenant’s subsidiary, or subleases the Property pursuant to the terms of this Lease, then the annual
rent shall be the greater of $30,000.00 or one and one-half percent
(1½%) of total gross revenues.
Total gross revenues for purposes of calculating the percentage rent pursuant to this Lease shall
be the aggregate sales price of all goods, wares, merchandise, lift tickets, and services sold,
furnished or rendered by Tenant in, on, or from, the Property and demised premises, including,
without limitation, any gross receipts from any conventions, concerts, entertainment performances
of any nature, markets of any sort, or similar activities conducted on the Property and demised
premises (measured in relation to the gross receipts of the entity actually conducting the
activities if not conducted directly by the Tenant); and whether made for cash, credit, or
otherwise, and without reserve or deduction for failure or inability to collect.
There shall be deducted from “total gross revenues” (1) cash or credit refunds made upon
transactions included in total gross revenues; (2) the amount of any governmental tax on such sales
which is required to be collected from the Tenant’s customer and paid to the appropriate taxing
authority by Tenant; and (3) the sale price of merchandise returned by Tenant’s customers for
exchange, provided that the sale price of merchandise delivered to the Tenant’s customer in
exchange shall be included in total gross revenues, and provided, further, that an returned
merchandise shall have been originally sold from the Property and demised premises.
Tenant shall submit to Landlord on or before June 30th of each year of the Lease Term a
written statement by Tenant, and certified to Tenant by independent public accountants, stating the
amount of total gross revenues for the previous April 1 through March 31, which shall be used
- 38 -
for computation of the percentage referred to in the Annual Rent table above, for the lease year which
begins within the period for which such certification is submitted.
Landlord shall have the right at any time within one (1) year after the close of any lease year of
the term hereof to audit or cause to be audited at the Property and demised premises by a firm or
person acceptable to Landlord, all the books of account, relating to total gross revenues of Tenant
for any lease year, and Tenant shall make all books of account available for such examination at
the Property and demised premises. If such audit indicates an understatement by Tenant of the total
gross revenues, then Tenant shall immediately pay the Landlord the corrected percentage rental.
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