--------------------------------------------------------------------------------
Ohio Prestwick Country Club
Green
Summit County
Ohio
L E A S E
GOLF TRUST OF AMERICA, L.P.
LANDLORD
AND
PRESTWICK GOLF CLUB, INC.
TENANT
DATED AS OF JULY 17, 1998
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE 1
LEASED PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2
DEFINITIONS. RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 3
TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.1 Initial Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.2 Extension Options . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.3 Right of First Offer to Lease . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 4
RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.1 Rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.2 Increase in Initial Base Rent . . . . . . . . . . . . . . . . . . . . . 17
4.3 Percentage Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.4 FB&M Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.5 Annual Reconciliation of Percentage Rent and FB&M Rent. . . . . . . . . 19
4.6 Increase in Base Rent Following Conversion Date . . . . . . . . . . . . 19
4.7 Record-keeping. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.8 Additional Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.9 Late Payment of Rent. . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.10 Net Lease; Capital Replacement Reserve . . . . . . . . . . . . . . . . 21
4.11 Allocation of Revenues . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 5
SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.1 Pledge of Owner's Shares. . . . . . . . . . . . . . . . . . . . . . . . 21
5 2 Obligation to Withhold Distributions. . . . . . . . . . . . . . . . . . 21
5 3 Cross-Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.4 Landlord's Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.5 Termination Payment . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 6
IMPOSITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.1 Payment of Impositions. . . . . . . . . . . . . . . . . . . . . . . . . 22
ii
6.2 Information and Reporting . . . . . . . . . . . . . . . . . . . . . . . 23
6.3 Prorations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.4 Refunds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.5 Utility Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.6 Assessment Districts. . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 7
TENANT WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.1 No Termination, Abatement, Etc .. . . . . . . . . . . . . . . . . . . . 24
7.2 Condition of the Property . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 8
OWNERSHIP OF TANGIBLE PERSONAL PROPERTY. . . . . . . . . . . . . . . . . . . . . 27
8.1 Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.2 Tenant's Personal Property. . . . . . . . . . . . . . . . . . . . . . . 27
8.3 Tenant's Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.4 Landlord's Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 9
USE OF PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.1 Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.2 Specific Prohibited Uses. . . . . . . . . . . . . . . . . . . . . . . . 28
9.3 Membership Sales. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.4 Landlord to Grant Easements, Etc. . . . . . . . . . . . . . . . . . . . 29
9.5 Tenant's Additional Covenants . . . . . . . . . . . . . . . . . . . . . 29
9.6 Valuation of Remainder Interest in Lease. . . . . . . . . . . . . . . . 30
ARTICLE 10
HAZARDOUS MATERIALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.1 Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.2 Remediation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.3 Violations; Orders . . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.4 Permits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.5 Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.6 Remediation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.7 Tenant's Indemnification of Landlord . . . . . . . . . . . . . . . . . 31
10.8 Survival of Indemnification Obligations. . . . . . . . . . . . . . . . 32
10.9 Environmental Violations at Expiration
or Termination of Lease. . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 11
MAINTENANCE AND REPAIR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.1 Tenant's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.2 Waiver of Statutory Obligations. . . . . . . . . . . . . . . . . . . . 34
11.3 Mechanic's Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.4 Surrender of Property. . . . . . . . . . . . . . . . . . . . . . . . . 34
iii
ARTICLE 12
TENANT IMPROVEMENTS; SUBMITTAL OF BUDGETS;
FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
12.1 Tenant's Right to Construct. . . . . . . . . . . . . . . . . . . . . . 34
12.2 Scope of Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
12.3 Cooperation of Landlord. . . . . . . . . . . . . . . . . . . . . . . . 36
12.4 Capital Replacement Fund . . . . . . . . . . . . . . . . . . . . . . . 36
12.5 Rights in Tenant Improvements. . . . . . . . . . . . . . . . . . . . . 37
12.6 Landlord's Right to Audit Calculation
of Gross Golf Revenue and FB&M Revenue . . . . . . . . . . . . . . . 38
12.7 Annual Budget. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
12.8 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 13
LIENS, ENCROACHMENTS AND OTHER TITLE MATTERS . . . . . . . . . . . . . . . . . . 41
13 1 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
13.2 Encroachments and Other Title Matters. . . . . . . . . . . . . . . . . 42
ARTICLE 14
PERMITTED CONTESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14.1 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14.2 Indemnification of Landlord. . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE 15
INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
15.1 General Insurance Requirements . . . . . . . . . . . . . . . . . . . . 45
15.2 Other Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
15.3 Replacement Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
15.4 Waiver of Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . 47
15.5 Form Satisfactory, Etc . . . . . . . . . . . . . . . . . . . . . . . . 47
15.6 Change in Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
15.7 Blanket Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
15.8 Insurance Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . 48
15.9 Disbursement of Proceeds . . . . . . . . . . . . . . . . . . . . . . . 49
15.10 Excess Proceeds, Deficiency of Proceeds . . . . . . . . . . . . . . . 50
15.11 Reconstruction Covered by Insurance . . . . . . . . . . . . . . . . . 51
15.12 Reconstruction Not Covered by Insurance . . . . . . . . . . . . . . . 52
15.13 No Abatement of Rent. . . . . . . . . . . . . . . . . . . . . . . . . 52
15.14 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
15.15 Damage Near End of Term . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 16
CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
16.1 Total Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
16.2 Partial Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
iv
16.3 Restoration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
16.4 Award-Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . 53
16.5 Temporary Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE 17
EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
17.1 Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . 54
17.2 Payment of Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
17.3 Certain Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
17.4 Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
17.5 Additional Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . 58
17.6 Appointment of Receiver. . . . . . . . . . . . . . . . . . . . . . . . 58
17.7 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
17.8 Application of Funds . . . . . . . . . . . . . . . . . . . . . . . . . 58
17.9 Impounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE 18
LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. . . . . . . . . . . . . . . . . . . . 59
ARTICLE 19
LEGAL REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 20
HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE 21
RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE 22
INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
22.1 Tenant's Indemnification of Landlord . . . . . . . . . . . . . . . . . 61
22.2 Landlord's Indemnification of Tenant . . . . . . . . . . . . . . . . . 62
22.3 Mechanics of Indemnification . . . . . . . . . . . . . . . . . . . . . 62
22.4 Survival of Indemnification Obligations. . . . . . . . . . . . . . . . 63
Available Insurance Proceeds . . . . . . . . . . . . . . . . . . . . .
ARTICLE 23
SUBLETTING AND ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
23.1 Prohibition Against Assignment . . . . . . . . . . . . . . . . . . . . 63
23.2 Subleases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
23.3 Transfers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
23.4 REIT Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
v
23.5 Right of First Offer of Landlord to Acquire Leasehold. . . . . . . . . 66
23.6 Bankruptcy Limitations . . . . . . . . . . . . . . . . . . . . . . . . 66
23.7 Management Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE 24
OFFICER'S CERTIFICATES AND OTHER STATEMENTS. . . . . . . . . . . . . . . . . . . 68
24.1 Officer's Certificates . . . . . . . . . . . . . . . . . . . . . . . . 68
24.2 Environmental Statements . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE 25
LANDLORD MORTGAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
25.1 Landlord May Grant Liens . . . . . . . . . . . . . . . . . . . . . . . 69
25.2 Tenant's Non-Disturbance Rights. . . . . . . . . . . . . . . . . . . . 70
25.3 Facility Mortgage Protection . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE 26
SALE OF FEE INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
26.1 Right of First Offer to Purchase . . . . . . . . . . . . . . . . . . . 70
26.2 Conveyance by Landlord . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE 27
ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
27.1 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
27.2 Arbitration Procedures . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE 28
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
28.1 Landlord's Right to Inspect. . . . . . . . . . . . . . . . . . . . . . 72
28.2 Breach by Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . 72
28.3 Competition Between Landlord and Tenant. . . . . . . . . . . . . . . . 73
28.4 No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
28.5 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . 73
28.6 Acceptance of Surrender. . . . . . . . . . . . . . . . . . . . . . . . 73
28.7 No Merger of Title . . . . . . . . . . . . . . . . . . . . . . . . . . 73
28.8 Quiet Enjoyment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
28.9 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
28.10 Survival of Claims. . . . . . . . . . . . . . . . . . . . . . . . . . 74
28.11 Invalidity of Terms or Provisions . . . . . . . . . . . . . . . . . . 75
28.12 Prohibition Against Usury . . . . . . . . . . . . . . . . . . . . . . 75
28.13 Amendments to Lease . . . . . . . . . . . . . . . . . . . . . . . . . 75
28.14 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . 75
28.15 Titles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
28.16 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
28.17 Memorandum of Lease . . . . . . . . . . . . . . . . . . . . . . . . . 75
28.18 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
vi
28.19 No Third Party Beneficiaries. . . . . . . . . . . . . . . . . . . . . 76
28.20 Non-Recourse as to Landlord . . . . . . . . . . . . . . . . . . . . . 76
28.21 No Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
28.22 Reletting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
28.23 Year 2000 Problem . . . . . . . . . . . . . . . . . . . . . . . . . . 76
28.24 Landlord's Right to Golf Rounds . . . . . . . . . . . . . . . . . . . 77
vii
Exhibits
Exhibit A - Legal Description of the Land
Exhibit B - Schedule of Improvements
Exhibit C - Other Leased Property
Exhibit D - Pledge Agreement
Exhibit E - Adjustments to Gross Golf Revenue for Private Clubs
Exhibit F - Calculation of Gross Golf Revenue for the
Base Year by Quarter
Exhibit G - Example of Monthly Operating Statement
Exhibit K - Contingent Purchase Price Formula
Exhibit K-1 - Example of Contingent Purchase Price
viii
Ohio Prestwick Country Club
Green
Summit County
Ohio
LEASE
THIS LEASE (this "Lease"), dated as of July 17, 1998, is entered into by
and between GOLF TRUST OF AMERICA, L.P., a Delaware limited partnership
("Landlord"), and PRESTWICK GOLF CLUB, INC., an Ohio corporation("Tenant").
THE PARTIES ENTER THIS LEASE on the basis of the following facts,
understandings and intentions:
A. Pursuant to that certain Purchase and Sale Agreement (the "Agreement")
dated as of July 17, 1998 by and between Landlord and XXXX X. XXXXXXXX, XX. and
XXXXX XXXXXXXX, husband and wife ("Transferor"), Transferor has or will transfer
to Landlord all of its right, title and interest in and to the Property (as
hereafter defined): and
B. Tenant, desires to lease the Property from Landlord, and Landlord
desires to lease the Property to Tenant, on the terms set forth herein
NOW THEREFORE, in consideration of the foregoing and the covenants and
agreements to be performed by Tenant and Landlord hereunder, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1
LEASED PROPERTY
Upon and subject to the terms and conditions set forth in this Lease,
Landlord leases to Tenant and Tenant leases from Landlord all of Landlord's
rights and interest (to the extent acquired from Transferor) in and to the
following real property, improvements, personal property and related rights
(collectively the "Property"):
(a) the Land;
(b) the Improvements;
(c) all rights, privileges, easements and appurtenances to the Land and
the Improvements, if any, including, without limitation, all of Landlord's
right, title and interest, if any, in and to all mineral and water rights and
all easements, rights-of-way and other appurtenances used or connected with the
beneficial use or enjoyment of the Land and the Improvements;
1
(d) the Tangible Personal Property; and
(e) the Intangible Personal Property.
ARTICLE 2
DEFINITIONS, RULES OF CONSTRUCTION
2.1 DEFINITIONS. The following terms shall have the indicated meanings:
"AAA" has the meaning provided in Section 27.1.
"ACTUAL PECUNIARY LOSS" has the meaning provided in Section 23.6.
"ADDITIONAL CHARGES" has the meaning provided in Section 4.7.
"ADJUSTED NET OPERATING INCOME" shall have the meaning set forth in
EXHIBIT K of the Agreement.
"ADVISORY ASSOCIATION" means that certain association of lessees operating
golf courses under a lease with Landlord or any Affiliate of Landlord.
"AFFILIATE" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person.
"AGREEMENT" has the meaning provided in Recital A.
"ANNUAL BASE RENT" means the Initial Base Rent, as it may be adjusted
annually as provided in Section 4.2.
"ANNUAL BUDGET" has the meaning provided in Section 12.7.
"AUTHORIZATIONS" means all licenses, permits and approvals required by any
governmental or quasi-governmental agency, body or officer for the ownership,
operation and use of the Property or any part thereof.
"AWARD" means all compensation, sums or anything of value awarded, paid or
received on a total or partial Condemnation.
"BANKRUPTCY CODE" has the meaning provided in Section 23.6.
"BASE RENT" means one-twelfth of Annual Rase Rent.
"BASE RENT ESCALATOR" has the meaning provided in Section 4.2.
2
"BASE YEAR" means the twelve (12) month period beginning on January 1,
1997, and ending on December 31, 1997; provided, however, that the Base Year
shall refer to the Fiscal Year immediately preceding the Conversion Date if the
Base Rent is increased as provided in Section 4.5. A quarter-by-quarter
calculation of Gross Golf Revenue and FB&M Revenue in the Base Year is attached
hereto as EXHIBIT F.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which national banks in the City of New York, New York,
are authorized, or obligated, by law or executive order, to close.
"CAPITAL BUDGET" has the meaning provided in Section 12.7.
"CAPITAL EXPENDITURES" has the meaning provided in Section 12.4.
"CAPITAL REPLACEMENT FUND" means the cumulative amount of the Capital
Replacement Reserve accrued by Landlord, together with interest thereon as
provided in Section 12.4, less amounts withdrawn from the Capital Replacement
Fund as provided in Section 12.4.
"CAPITAL REPLACEMENT RESERVE" means, on an annual basis, the greater of
(i) an amount equal to 3.48% of each Fiscal Quarter's Gross Golf Revenue, to be
accrued monthly by Landlord as part of the Capital Replacement Fund, as provided
in Section 12.4 hereof, based on the Officer's Certificate, or (ii) Fifty
Thousand Dollars ($50,000.00).
"CHANGE OF CONTROL" means:
(a) the issuance and/or sale by Tenant or the sale by any
stockholder of Tenant of a Controlling interest in Tenant to a
Person other than to a Person that is an Affiliate of Tenant as of
the date hereof;
(b) the sale, conveyance or other transfer of all or
substantially all of the assets of Tenant(whether by operation of
law or otherwise):
(c) any other transaction, or series of transactions, which
results in the shareholders, partners or members who control Tenant
as of the date hereof no longer having Control of Tenant; or
(d) any transaction pursuant to which Tenant is merged with or
consolidated into another entity (other than an entity owned and
Controlled by an Affiliate of
3
Tenant as of the date hereof), and Tenant is not the surviving entity.
Notwithstanding the foregoing, a Change of Control shall not be deemed to
have occurred for purposes of this Lease if the shareholders or partners who
Control Tenant as of the date hereof remain in Control of Tenant through an
agreement or equity interest.
"CODE" means the Internal Revenue Code of 1986, as the same may be amended
or supplemented, and the rules and regulations promulgated thereunder.
"COMMENCEMENT DATE" means the date hereof.
"COMPANY" means Golf Trust of America, Inc. and any subsidiaries thereof,
including, without limitation, GTA LP and GTA GP, and, for purposes of Sections
10.7, 22.1, 22.3 and 22.4, each of their officers, employees, directors, agents
and representatives.
"CONDEMNATION" means (a) the exercise of any governmental power, whether
by legal proceedings or otherwise, by a Condemnor, and (b) a voluntary sale or
transfer by Landlord to any Condemnor, either under threat of condemnation or
while legal proceedings for condemnation are pending.
"CONDEMNOR" means any public or quasi-public authority, or private
corporation or individual, having the power of condemnation.
"CONTINGENT PURCHASE PRICE" shall have the meaning set
forth in EXHIBIT K of the Agreement.
"CONTROL" means (including, with correlative meanings, the terms
"controlling" and "controlled by"), as applied to any Person, the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting
securities, by contract or otherwise.
"CONVERSION DATE" means the earlier of (i) the date Transferor elects to
receive additional Owner's Shares as a Contingent Purchase Price for the
contribution of the Property, (ii) the date on which Transferor elects in
writing to waive its right to receive additional Owner's Shares, or (iii) the
date that is the one hundred fifth (105th) day following the end of the fifth
(5th) full Fiscal Year of the Initial Term.
"CPI" means the United States Consumer Price Index, All Urban Consumers,
U.S. City Average, All Items (1982-84 = 100).
4
"DATE OF TAKING" means the date the Condemnor has the right to possession
of the property being condemned.
"ENVIRONMENTAL LAWS" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et
seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et
seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the
Hazardous Materials Transportation Act, as amended, 49 U.S.C. Section 1801, et
seq.; the Superfund Amendments and Reauthorization Act of 1986, Pub. L. 99-499
and 99-563; the Occupational Safety and Health Act of 1970, as amended, 29
U.S.C. Section 651, et seq.; the Clean Air Act, as amended, 42 U.S.C. Section
7401, et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 201,
et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section
1251, et seq.; and all federal, state and local environmental health and safety
statutes, ordinance, codes, rules, regulations, orders and decrees regulating,
relating to or imposing liability or standards concerning or in connection with
Hazardous Materials.
"EVENT OF DEFAULT" has the meaning provided in SECTION 17.1.
"EXPIRATION DATE" means the date that is the last day of the fortieth
(40th) full Fiscal Quarter following the Commencement Date, as such date may be
extended by the Extended Terms.
"EXTENDED TERM" has the meaning provided in Section 3.2.
"FB&M REVENUE" means all revenue received (whether by Tenant or any
subtenants, assignees, concessionaires or licensees) from or by reason of the
Property relating to (i) the operation of snack bars, restaurants, bars,
catering functions, and banquet operations, and (ii) the sale of merchandise and
inventory on the Property; PROVIDED, HOWEVER, that FB&M Revenue shall not
include:
(a) the amount of any city, county, state or federal sales,
admissions, usage, or excise tax on the item included in FB&M Revenue,
which is both added to or incorporated in the selling price and paid to
the taxing authority by Tenant; and
(b) revenues or proceeds from sales or trade-ins of machinery,
vehicles, trade fixtures or personal property owned by Tenant used in
connection with Tenant's operation of the Property.
"FB&M RENT" means for any Fiscal Year during the Lease Term, ten percent
(10%) of the positive difference, if any, between the current year's FB&M
Revenue and the FB&M Revenue for the Base Year, pro rated for any partial
periods.
5
"FACILITY MORTGAGE" means a mortgage, deed of trust or other security
agreement securing any indebtedness or any other Landlord's Encumbrance placed
on the Property in accordance with the provisions of Article 25.
"FACILITY MORTGAGEE" means the holder or beneficiary of a Facility
Mortgage, if any; provided Landlord has given Tenant notice of the identity and
address of the Person.
"FISCAL QUARTER" means the three-month periods (or applicable portions
thereof) in any Fiscal Year from January 1 through March 31, April 1 through
June 30, July 1 through September 30 and October 1 through December 31.
"FISCAL YEAR" means the twelve (12) month period from the first day of the
first Fiscal Quarter commencing after the Commencement Date to the last day of
the fourth Fiscal Quarter
commencing after the Commencement Date.
"FIXTURES" means all permanently affixed equipment, machinery, fixtures,
and other items of real and/or personal property, including all components
thereof, now or hereafter located in, on or used in connection with and
permanently affixed to or incorporated into the Property, including all
furnaces, boilers, heaters, electrical equipment, heating, plumbing, lighting,
ventilating, refrigerating, air and water pollution control, waste disposal,
air-cooling and air-conditioning systems and apparatus, sprinkler systems and
fire and theft protection equipment, all of which, to the greatest extent
permitted by law, are hereby deemed by the parties hereto to constitute real
estate, together with all replacements, modifications, alterations and additions
thereto, but specifically excluding all items included within the category of
Tenant's Personal Property and any Tenant Improvements.
"FULL REPLACEMENT COST" means the actual replacement cost from time to
time of the improvement being insured, including the increased cost of a
construction endorsement, less exclusions provided in the fire insurance policy.
"GAAP" means generally accepted accounting principles, consistently
applied.
"GROSS GOLF REVENUE" means all revenues accrued (whether by Tenant or any
subtenants, assignees, concessionaires or licensees) from or by reason of the
operation of the golf operations at the Property calculated in accordance with
GAAP (but excluding reasonable reserves for refunds, allowances and bad debts
applicable to such operations), including, without limitation, (i) revenues from
membership initiation fees (to the extent described in EXHIBIT E attached
hereto), (ii) periodic membership dues, (iii) greens fees, (iv) fees to reserve
a tee time, (v) guest fees, (vi)
6
golf cart rentals, (vii) parking lot fees, (viii) locker rentals, (ix) fees for
golf club storage, (x) fees for the use of swim, tennis or other facilities,
(xi) charges for range balls, range fees or other fees for golf practice
facilities, (xii) fees or other charges paid for golf or tennis lessons (except
where retained by or paid to a USTA or PGA professional in accordance with
historical practice at the Property), (xiii) fees or other charges for fitness
centers, (xiv) forfeited deposits with respect to any membership application,
(xv) transfer fees imposed on any member in connection with the transfer of any
membership interest, (xvi) fees or other charges paid to Tenant by sponsors of
golf tournaments at the Property (unless the terms under which Tenant is paid by
such sponsor do not comply with Section 23.4, in which event the gross revenues
received from such sponsor for the tournament shall be excluded from Gross Golf
Revenue and further provided that Tenant shall use commercially reasonable
efforts to structure such payment to comply with Section 23.4), (xvii)
advertising or placement fees paid by vendors in exchange for exclusive use or
name rights at the Property, and (xviii) fees received in connection with any
golf package sponsored by any hotel group, condominium group, golf association,
travel agency, tourist or travel association or similar payments; provided,
however, that Gross Golf Revenue shall not include:
(a) Other Revenue;
(b) The amount of any city, county, state or federal sales,
admissions, usage, or excise tax on the item included in Gross Golf
Revenue, which is both added to or incorporated in the selling price
and paid to the taxing authority by Tenant; and
(c) Revenues or proceeds from sales or trade-ins of machinery,
vehicles, trade fixtures or personal property owned by Tenant used
in connection with Tenant's operation of the Property.
"GTA GP" means GTA GP, Inc. and any successor thereto.
"GTA LP" means GTA LP, Inc. and any successor thereto.
"HAZARDOUS MATERIAL" means any substance, material, waste, gas or
particulate matter which is regulated by any local, state or federal
governmental authority, including but not limited to any material or substance
which is (i) defined as a "hazardous waste", "hazardous material", or
"restricted hazardous waste" or words of similar import under any provision of
any Environmental Law; (ii) petroleum or petroleum products; (iii) asbestos;
(iv) polychlorinated biphenyl; (v) radioactive material; (vi) radon gas; (vii)
designated as a "hazardous substance" pursuant to Section 311 of the Clean Water
Act, 33 U.S.C. Section 1251, et seq. (42 U.S.C.
7
Section 1317); (viii) defined as a "hazardous waste" pursuant to Section 1004 of
the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq. (42
U.S.C. Section 6903); or (ix) defined as a "hazardous substance" pursuant to
Section 101 of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601, et seq. (42 U.S.C. Section 9601).
"IMPARTIAL APPRAISER" means the casualty insurance company which is then
carrying the largest amount of casualty insurance carried on the Property.
"IMPOSITIONS" means collectively:
(a) all taxes (including all real and personal property, ad
valorem, sales and use, single business, gross receipts, transaction
privilege, rent or similar taxes);
(b) assessments and levies (including all assessments for
public improvements or benefits, whether or not commenced or
completed prior to the date hereof and whether or not to be
completed within the Term);
(c) excises;
(d) fees (including license, permit, inspection, authorization
and similar fees): and
(e) all other governmental charges;
in each case whether general or special, ordinary or extraordinary, or foreseen
or unforeseen, of every character in respect of the Property and/or the Rent or
Additional Charges (including all interest and penalties thereon due to any
failure in payment by Tenant), which at any time during or in respect of the
Term hereof may be assessed or imposed on or in respect of or be a lien upon (i)
Landlord or Landlord's interest in the Property; (ii) the Property or any part
thereof or any therefrom or any estate, right, title or interest therein; or
(iii) any operation, use or possession of, or sales from or activity conducted
on or in connection with the Property or the leasing or use of the Property or
any part thereof; provided, however, that Impositions shall not include:
(aa) any taxes based on net income (whether denominated as an
income, franchise, capital stock or other tax) imposed on Landlord
or any other Person other than Tenant;
(bb) any transfer or net revenue tax of Landlord or any other
Person other than Tenant: or
8
(cc) any tax imposed with respect to any principal or interest
on any indebtedness on the Property.
"IMPOUND CHARGES" has the meaning provided in Section 17.9.
"IMPOUND PAYMENT" has the meaning provided in Section 17.9.
"IMPROVEMENTS" means the golf course, driving range, putting greens,
clubhouse facilities, snack bar, restaurant, pro shop, buildings, structures,
parking lots, improvements, Fixtures and other items of real estate located on
the Land as more particularly described in Exhibit B attached hereto.
"INITIAL BASE RENT" means $640,000 per year.
"INITIAL TERM" means the period of time from the Commencement Date through
the last day of the fortieth (40th) full Fiscal Quarter following the
Commencement Date.
"INSURANCE REQUIREMENTS" mean all terms of any insurance policy required
by this Lease and all requirements of the issuer of any such policy.
"INTANGIBLE PERSONAL PROPERTY" means all intangible personal property
owned by Landlord and used solely in connection with the ownership, operation,
leasing or maintenance of the Real Property or the Tangible Personal Property,
and any and all trademarks and copyrights, guarantees, Authorizations, general
intangibles, business records, plans and specifications, surveys, all licenses,
permits and approvals solely with respect to the construction, ownership,
operation or maintenance of the Property.
"LAND" means the land described in Exhibit A attached hereto.
"LANDLORD" means Golf Trust of America, L.P., and any successor or
assignee permitted in accordance with the terms of the Lease.
"LANDLORD'S ENCUMBRANCE" means any lien, encumbrance or title retention
agreement upon the Property, or any portion thereof or interest therein, whether
to secure borrowing or other means of financing or refinancing.
"LEASE" means this Lease, as the same may be amended from time to time.
"LEASE TERM" means the period from the Commencement Date through and
including the Expiration Date (or the termination date, if earlier terminated
pursuant to the provisions hereof).
9
"LEGAL REQUIREMENTS" means all federal, state, county, municipal and other
governmental statutes, laws (including the Americans with Disabilities Act and
any Environmental Laws), rules, orders, regulations, ordinances, judgments,
decrees and injunctions affecting either the Property or the construction, use
or alteration thereof, whether now or hereafter enacted and in force, including
any which may (i) require repairs, modifications, or alterations in or to the
Property; (ii) in any way adversely affect the use and enjoyment thereof, and
all permits, licenses and authorizations and regulations relating thereto, and
all covenants, agreements, restrictions and encumbrances contained in any
instruments, either of record or known to Tenant (other than encumbrances
created by Landlord without the consent of Tenant), at any time in force
affecting the Property; or (iii) require the cleanup or other treatment of any
Hazardous Material.
"NET OPERATING INCOME" shall have the meaning set forth in EXHIBIT K of
the Agreement.
"NON-COMPLYING PARTY" has the meaning provided in Section 27.2.
"OFFICER'S CERTIFICATE" means a certificate of Tenant signed by an officer
authorized to so sign by the board of directors or by-laws, or if Tenant is a
partnership, by an officer authorized to so sign by the general partners.
"OPERATING BUDGET" has the meaning provided in Section 12.7
"OTHER LEASED PROPERTIES" means the property or properties leased or
hereafter leased to Tenant or an Affiliate of Tenant by Landlord or an Affiliate
of Landlord, other than pursuant to this Lease, which as of the date hereof are
the properties listed on Exhibit C attached hereto.
"OTHER REVENUE" means all revenue received (whether by Tenant or any
subtenants, assignees, concessionaires or licensees) from or by reason of the
Property relating to (i) the operation of snack bars, restaurants, bars,
catering functions, and banquet operations,(ii) sale of merchandise and
inventory on the Property, and (iii) photography services.
"OVERDUE RATE" means, on any date, a rate equal to the Prime Rate plus an
additional five percent (5%) per annum, but in no event greater than the maximum
rate then permitted under applicable law.
"OWNER'S SHARES" means limited partnership interests in the Partnership.
10
"PARTNERSHIP" means Golf Trust of America, L.P., a Delaware limited
partnership.
"PERCENTAGE RENT" means, for any Fiscal Year during the Lease Term,
thirty-three and one-third percent (33 1/3%) of the positive difference, if any,
between the current year's Gross Golf Revenue and the Gross Golf Revenue for the
Base Year, pro rated for any partial periods.
"PERMITTED ASSIGNEE" means a Person or an Affiliate of a Person meeting
one or more of the following standards:
(a) an existing lessee under a lease with Landlord or any
Affiliate of Landlord who is not then in default under its lease;
(b) any entity affiliated with an entity acquiring from an
Affiliate of Tenant its resort and related operations located at or
adjacent to the Property, and provided Landlord has approved such
assignee in its reasonable discretion, based on, among other things,
the proposed assignee's reputation and experience in owning,
operating and managing golf courses similar in type to the Property
and the proposed assignee's net worth and financial resources; and
(c) a list of pre-approved assignees prepared by Landlord from
time to time in consultation with the Advisory Association.
"PERSON" means and includes natural persons, corporations, limited
partnerships, limited liability companies, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts, banks, trusts
companies, land trusts, business trusts, Indian tribes or other organizations,
whether or not legal entities, and governments and agencies and political
subdivisions thereof.
"PLEDGE AGREEMENT. means that certain pledge agreement dated as of the
date of this Lease, by and between Transferor and Landlord, in the form attached
hereto as EXHIBIT D.
"PLEDGED OWNER'S SHARES" means the Owner's Shares pledged pursuant to the
Pledge Agreement.
"PRIMARY INTENDED USE" means the operation of a golf course and other
activities incidental to the operation of a golf course.
"PRIME RATE" means on any date, a rate equal to the annual rate on such
date announced by NationsBank, N.A., or its successor entity, to be its prime
rate or, if the prime rate is discontinued,
11
the base rate for 90-day unsecured loans to its corporate borrowers of the
highest credit standing.
"PROPERTY" means the Real Property, the Tangible Personal Property and the
Intangible Personal Property
"REAL PROPERTY" means the Land and the Improvements, and all easements and
appurtenances attached thereto.
"RENT" means, collectively, the Base Rent,Percentage Rent, and FB&M Rent.
"STATE" means the State or Commonwealth in which the Property is located.
"TANGIBLE PERSONAL PROPERTY" means all items of tangible personal property
and fixtures (if any) owned by Landlord and located on or used solely in
connection with the Real Property, including, but not limited to, machinery,
equipment, furniture, furnishings, movable walls or partitions, phone systems,
restaurant equipment, computers or trade fixtures, golf course operation and
maintenance equipment, including mowers, tractors, aerators, sprinklers,
sprinkler and irrigation facilities and equipment, valves or rotors, driving
range equipment, athletic training equipment, office equipment or machines,
antiques or other decorations, furniture, computers or other control systems,
and equipment or machinery of every kind or nature, including all warranties and
guaranties associated therewith, with the exception of golf carts.
"TENANT" means Prestwick Golf Club, Inc., an Ohio corporation and any
successor thereto, or assignee thereof, as permitted by the terms of this Lease.
"TENANT IMPROVEMENTS" has the meaning provided in Section 12.1.
"TENANT'S PERSONAL PROPERTY" has the meaning provided in Section 8.2.
"TENANT'S RIGHT OF FIRST OFFER TO LEASE" has the meaning provided in
Section 3.3.
"TENANT'S RIGHT OF FIRST OFFER TO PURCHASE" has the meaning provided in
Section 26.1.
"TERM" means, collectively, the Initial Term and any Extended Terms, as
the context may require, unless earlier terminated pursuant to the provisions
hereof.
12
"TERMINATION PAYMENT" means an amount calculated on the Expiration Date
equal to the positive difference, if any, between one hundred thirteen and
one-half percent (113.5%) of all rent due under this Lease and the Net Operating
Income for the prior Fiscal Year, divided by ten and five tenths percent
(10.5%).
"TRANSFEROR" has the meaning provided in Recital A.
"TRUSTEE" has the meaning provided in Section 23.6.
"UNAVOIDABLE DELAYS" means delays due to strikes, lockouts, power failure,
acts of God, governmental restrictions, enemy action, civil commotion, fire,
unavoidable casualty or other causes beyond the control of the party responsible
for performing an obligation hereunder, PROVIDED THAT lack of funds shall not be
deemed a cause beyond the control of either party hereto unless such lack of
funds is caused by the failure of the other party hereto to perform any
obligations of such party under this Lease.
"UNSUITABLE FOR ITS PRIMARY INTENDED USE" means a state of condition of
the Property such that in the good faith judgment of Landlord, reasonably
exercised, the Property cannot be operated on a commercially practicable basis
for its Primary Intended Use.
2.2 RULES OF CONSTRUCTION. The following rules shall apply to the
construction and interpretation of this Lease:
(a) Singular words shall connote the plural number as well as
the singular and vice versa, and the masculine shall include the
feminine and the neuter.
(b) All references herein to particular articles, sections,
subsections, clauses or exhibits are references to articles,
sections, subsections, clauses or exhibits of this Lease.
(c) The table of contents and headings contained herein are
solely for convenience of reference and shall not constitute a part
of this Lease nor shall they affect its meaning, construction or
effect.
(d) "Including" and variants thereof shall be deemed to mean
"including without limitation."
(e) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles then in effect.
(f) Each party hereto and its counsel have reviewed and
revised (or requested revisions of) this Lease and
13
have participated in the preparation of this Lease, and therefore any
usual rules of construction requiring that ambiguities are to be resolved
against a particular party shall not be applicable in the construction and
interpretation of this Lease or any exhibits hereto.
ARTICLE 3
TERM
3.1 INITIAL TERM. The Initial Term shall commence on the Commencement
Date and shall terminate on the last day of the fortieth (40th) full Fiscal
Quarter following the Commencement Date.
3.2 EXTENSION OPTIONS. Landlord grants Tenant the right to extend the
Initial Term of this Lease (or any permitted assignee) six (6) consecutive times
for a period of five (5) years each (each such extension, an "Extended Term").
Tenant may exercise its option for an Extended Term solely by giving written
notice at least one hundred eighty (180) days prior to the termination of the
then-current term. Tenant shall be entitled to exercise these options only if at
the time of the giving of such notice, Tenant is then the lessee of the Property
pursuant to this Lease, and at the time of the commencement of the applicable
Term or Extended Term no Event of Default shall then exist. During the Extended
Term, all of the terms and conditions of this Lease shall remain in full force
and effect, as the same may be amended, supplemented or modified.
3.3 RIGHT OF FIRST OFFER TO LEASE. Upon the expiration of the Lease Term
and provided that Tenant has exercised each Extended Term and no Event of
Default then exists beyond any applicable notice and cure period, Tenant shall
have a right of first offer ("Tenant's Right of First Offer to Lease") to lease
the Property upon the same terms and conditions as Landlord, at its election,
intends to offer to lease the Property to a third party. Tenant shall be
entitled to exercise Tenant's Right of First Offer to Lease only if at the time
of the giving of such notice and at the time of the commencement of the
applicable term no Event of Default shall then exist and only if Landlord elects
to lease the Property at the expiration of the Lease Term. Not more than nine
(9) months and not less than three (3) months prior to the expiration of the
Lease Term, Landlord shall, if applicable, give Tenant written notice of its
intent to lease the Property and shall indicate the terms and conditions upon
which Landlord intends to lease the Property. Tenant shall thereafter have a
period of thirty (30) days to elect by unequivocal written notice to Landlord to
lease the Property on the same terms and conditions as Landlord intends to offer
to a third party; provided prior to Tenant's acceptance Landlord shall retain
the right to elect not to lease the Property by giving Tenant written notice
thereof. If Tenant elects not to
14
lease the Property, then Landlord shall be free to lease the Property to a third
party. However, if the Base Rent for such proposed lease is reduced by five
percent (5%) or more as compared to the Base Rent included in the lease that
Tenant rejected, then Landlord shall again offer Tenant the right to acquire the
Property upon the same terms and conditions, provided that Tenant shall have
only fifteen (15) days to accept such offer.
ARTICLE 4
RENT
4.1 RENT. Tenant will pay to Landlord, in lawful money of the United
States of America, Rent during the Initial Term or any Extended Term. Payments
of Base Rent shall be paid monthly, on the twenty-fifth (25th) day of each month
in arrears, at Landlord's address set forth in Section 28.9 or at such other
place or to such other Person as Landlord from time to time may designate in
writing. The first monthly installment shall be prorated as to any partial
month. If any payment owing hereunder shall otherwise be due on a day that is
not a Business Day, such payment shall be due on the next succeeding Business
Day. Tenant shall receive a credit against Rent (or be paid directly, at
Landlord's option) for any operating expense credits or operating revenues
credited to Landlord pursuant to the Agreement which are applicable to any
period in the Lease Term (E.G., credit for real property taxes, membership dues,
sublease rents, etc.) and conversely Tenant shall reimburse Landlord for any
operating expenses paid for by Landlord pursuant to the Agreement which are the
responsibility of Tenant hereunder.
4.2 INCREASE IN INITIAL BASE RENT. Beginning on the date (the
"Adjustment Date") that is the first day of the first Fiscal Quarter commencing
after the one (1) year anniversary of the Commencement Date, and on each
Adjustment Date thereafter through and including the fourth (4th) Adjustment
Date, the Annual Base Rent will increase by the lesser of (i) three percent (3%)
of the Annual Base Rent payable for the immediately preceding year, or (ii) two
hundred percent (200%) of the change in CPI from the immediately preceding
fiscal year (the "Base Rent Escalator"); provided the October 1, 1999 increase
shall be pro rated for the number of days in the Lease Term in the third quarter
of 1998 divided by 365 and multiplied by the applicable Base Rent Escalator. In
addition, if the Annual Base Rent is increased as provided in Section 4.5, then
the Base Rent Escalator shall continue to apply to each of the five (5) years
following such increase, with the increase effective on the anniversary of the
increase in Base Rent as provided in Section 4.5 in lieu of increases on January
of each year.
4.3 PERCENTAGE RENT. In addition to Base Rent and FB&M Rent, Tenant
shall pay Percentage Rent as provided herein. Beginning in
15
the first year of the Initial Term and continuing for the Initial Term and any
Extended Term, Tenant shall calculate the Gross Golf Revenue for each Fiscal
Quarter (or shorter period, if applicable) within twenty (20) days of the end of
such Fiscal Quarter (or shorter period, if applicable) and submit such
calculation in writing to Landlord by way of an Officer's Certificate. If the
Gross Golf Revenue for that Fiscal Quarter (or shorter period, if applicable) is
greater than the Gross Golf Revenue for the same Fiscal Quarter (or shorter
period, if applicable) in the Base Year (and, following the Fiscal Quarter
ending March 31, on a year-to-date basis), then Tenant shall pay to Landlord the
Percentage Rent upon submittal of the Officer's Certificate. The Percentage Rent
payable in any period in any Fiscal Year shall be adjusted to reflect the
Percentage Rent paid on a year-to-date cumulative basis for the Fiscal Year (pro
rated for any partial periods) and the limits set forth in the next two
sentences on a pro rated basis. The increase in Rent resulting from the payment
of Percentage Rent (together with any increase in Base Rent pursuant to Section
4.2) payable, if any, during each of the first five (5) full Fiscal Years of the
Initial Term shall be limited to five percent (5%) of the Rent payable for the
prior Fiscal Year. Tenant shall receive a credit against the payment of
Percentage Rent in an amount equal to the increase in the Base Rent over the
Initial Base Rent.
4.4 FB&M RENT. In addition to Base Rent and Percentage Rent, Tenant
shall pay FB&M Rent as provided herein. Beginning in the first year of the
Initial Term and continuing for the Initial Term and any Extended Term, Tenant
shall calculate the FB&M Revenue for each Fiscal Quarter (or shorter period, if
applicable) within twenty (20) days of the end of such Fiscal Quarter (or
shorter period, if applicable) and submit such calculation in writing to
Landlord by way of an Officer's Certificate. If the FB&M Revenue for that
Fiscal Quarter (or shorter period, if applicable) is greater than the FB&M
Revenue for the same Fiscal Quarter (or shorter period, if applicable) in the
Base Year (and, following the Fiscal Quarter ending March 31, on a year-to-date
basis), then Tenant shall pay to Landlord the FB&M Rent upon submittal of the
Officer's Certificate. The FB&M Rent payable in any period in any Fiscal Year
shall be adjusted to reflect the FB&M Rent paid on a year-to-date cumulative
basis for the Fiscal Year (pro rated for any partial periods) and the limits set
forth in the next two sentences on a pro rated basis. The increase in Rent
resulting from the payment of Percentage Rent and FB&M Rent (together with any
increase in Base Rent pursuant to Section 4.2) payable, if any, during each of
the first five (5) full calendar years of the Initial Term shall be limited to
five percent (5%) of the Rent payable for the prior calendar year, or in the
case of 1998, of the Initial Base Rent prorated. Tenant shall receive a credit
against the payment of Percentage Rent and FB&M Rent in an amount equal to the
increase in the Base Rent over the Initial Base Rent.
16
4.5 ANNUAL RECONCILIATION OF PERCENTAGE RENT AND FB&M RENT. Within sixty
(60) days after the end of each Fiscal Year, or after the expiration or
termination of this Lease, Tenant shall deliver to Landlord an Officer's
Certificate setting forth (i) the Gross Golf Revenue and FB&M Revenue for the
Fiscal Year just ended, and (ii) a comparison of the amount of the Percentage
Rent and FB&M Rent actually paid during such Fiscal Year versus the amount of
Percentage Rent and FB&M Rent actually owing on the basis of the annual
calculation of the Gross Golf Revenue and FB&M Revenue, respectively. If the sum
of the Percentage Rent and FB&M Rent for such Fiscal Year exceeds the sum of the
quarterly payments of Percentage Rent and FB&M Rent previously paid by Tenant,
Tenant shall provide such deficiency to Landlord along with such Officer's
Certificate. If the sum of the Percentage Rent and FB&M Rent for such Fiscal
Year is less than the amount of Percentage Rent and FB&M Rent previously paid by
Tenant, Landlord shall, at Landlord's option, either (i) remit to Tenant its
check in an amount equal to such difference, or (ii) grant Tenant a credit
against the payment of Rent next coming due. Landlord shall have the right to
audit all of Tenant's business operations at the Property so as to determine the
calculation of Percentage Rent and FB&M Rent as provided in Section 12.6.
4.6 INCREASE IN BASE RENT FOLLOWING CONVERSION DATE. For the Fiscal Year
in which the Conversion Date occurs only as a result of the election by
Transferor to receive additional Owner's Shares in the Partnership as a
Contingent Purchase Price for the contribution of the Property, the Annual Base
Rent shall be increased, effective as of the date the additional Owner's Shares
are issued to the Transferor, to an amount equal to the Adjusted Net Operating
Income.
4.7 RECORD-KEEPING. Tenant shall utilize an accounting system for the
Property in accordance with its usual and customary practices and in accordance
with GAAP approved by Landlord, which will accurately record all Gross Golf
Revenue. Tenant shall retain all accounting records for each Fiscal Year
conforming to such accounting system until at least five (5) years after the
expiration of such Fiscal Year.
4.8 ADDITIONAL CHARGES. In addition to the Base Rent, Percentage Rent
and FB&M Rent, (a) Tenant shall also pay and discharge when due and payable all
other amounts, liabilities, obligations and Impositions which Tenant assumes or
agrees to pay under this Lease, and (b) in the event of any failure on the part
of Tenant to pay any of those items referred to in clause (a) above, Tenant
shall also pay and discharge every fine, penalty, interest and cost which may be
added for non-payment or late payment of such items (the items referred to in
clauses (a) and (b) above being referred to herein collectively as the
"Additional
17
Charges"). Except as otherwise provided in this Lease, all Additional Charges
shall become due and payable at the earlier of (i) thirty (30) days after either
Landlord or the applicable third party delivery of an invoice to Tenant, or (ii)
the date of delinquency with respect to Impositions.
4.9 LATE PAYMENT OF RENT. Tenant hereby acknowledges that late payment
by Tenant to Landlord of Base Rent, Percentage Rent, FB&M Rent or Additional
Charges will cause Landlord to incur costs not contemplated under the terms of
this Lease, the exact amount of which is presently anticipated to be extremely
difficult to ascertain. Such costs may include processing and accounting charges
and late charges which may be imposed on Landlord by the terms of any mortgage
or deed of trust covering the Property and other expenses of a similar or
dissimilar nature. Accordingly, if any installment of Base Rent, Percentage
Rent, FB&M Rent, or Additional Charges (but only as to those Additional Charges
which are payable directly to Landlord) shall not be paid within ten (10) days
after the date such payment is due, Tenant will pay Landlord on demand, as
Additional Charges, a late charge equal to five percent (5%) of such
installment. The parties agree that this late charge represents a fair and
reasonable estimate of the costs that Landlord will incur by reason of late
payment by Tenant and is not a penalty. In addition, if any installment of Base
Rent, Percentage Rent, FB&M Rent, or Additional Charges (but only as to those
Additional Charges which are payable directly to Landlord) shall not be paid
within five (5) days after the due date with respect to Base Rent, Percentage
Rent, or FB&M Rent, or delivery of an invoice to Tenant with respect to the
Additional Charge, the amount unpaid shall bear interest, from such due date to
the date of payment thereof, computed at the Overdue Rate on the amount of such
installment, and Tenant will pay such interest to Landlord as Additional
Charges. The acceptance of any late charge or interest shall not constitute a
waiver of, nor excuse or cure, any default under this Lease, nor prevent
Landlord from exercising any other rights and remedies available to Landlord.
4.10 NET LEASE; CAPITAL REPLACEMENT RESERVE. This Lease shall be a triple
net lease and Rent shall be payable to Landlord without notice or demand and
without set-off, counterclaim, recoupment, abatement, suspension, determent,
deduction or defense, except as expressly provided herein, so that this Lease
shall yield to Landlord the full amount of the installments of Base Rent,
Percentage Rent, FB&M Rent, and Additional Charges throughout the Term. Without
limiting the foregoing, Tenant shall pay to Landlord on a monthly basis along
with Base Rent, as additional rent, an amount equal to one-twelfth (1/12) of the
Capital Replacement Reserve. Such amounts shall be subject to reconciliation at
the end of each Fiscal Quarter and at the end of each Fiscal Year.
18
4.11 ALLOCATION OF REVENUES. In the event that individuals or groups
purchase for a single price items which are both included and excluded from
Gross Golf Revenue (E.G., green fees and dinner), then Tenant agrees that
revenues shall be allocated to Gross Golf Revenue in a reasonable manner
consistent with the historical allocation of such revenues.
ARTICLE 5
SECURITY DEPOSIT
5.1 PLEDGE OF OWNER'S SHARES. On or prior to the Commencement Date,
Tenant shall cause the Pledge Agreement to be executed for the benefit of
Landlord.
5.2 OBLIGATION TO WITHHOLD DISTRIBUTIONS. Notwithstanding the above
provisions, if the Net Operating Income for the Property falls below the
coverage ratio set forth in Section 2(a) of EXHIBIT D-1 to the Pledge Agreement,
at any time following the release of any Pledged Owner's Shares (or security
deposit held by Landlord in lieu thereof), then Tenant shall thereafter retain,
and not make cash distributions (except as may be necessary to pay any
applicable taxes) to its shareholders, partners or members, as applicable, until
such time as Tenant has accumulated six (6) months of Base Rent at the then
current level. Cash distributions may be made at such time as Tenant shall have
again satisfied such coverage ratios for two (2) consecutive Fiscal Years.
Tenant shall provide Landlord with such documentation, including Officer's
Certificates and financial statements, within forty-five (45) days after the end
of each Fiscal Quarter as are necessary to establish Tenant's compliance with
the foregoing requirements.
5.3 CROSS-COLLATERAL. The Pledged Owner's Shares shall also secure
Tenant's or Tenant's Affiliates obligations under each of the leases for the
Other Leased Properties.
5.4 LANDLORD'S LIEN. To the fullest extent permitted by applicable law,
Landlord is granted a lien and security interest on all of Tenant's personal
property now or hereafter located on the Property, and such lien and security
interest shall remain attached to Tenant's personal property until payment in
full of all Rent and satisfaction of all of Tenant's obligations hereunder;
provided, however, Landlord shall subordinate its lien and security interest
only to that of any third party lender or seller which finances Tenant's
personal property, the terms and conditions of such subordination to be
satisfactory to Landlord in its reasonable discretion. Tenant shall, upon the
request of Landlord, execute such financing statements or other documents or
instruments reasonably requested by Landlord to perfect the lien and security
interests herein granted.
19
5.5 TERMINATION PAYMENT. On the Expiration Date, unless each option for
an Extended Term is exercised, Tenant shall pay to Landlord the Termination
Payment, if any, provided the maximum Termination Payment shall equal the
amounts in the Security Fund (as defined in the Pledge Agreement) then held by
Landlord and shall be payable solely from the proceeds thereof. For purposes of
calculating the Termination Payment, the Owner's Shares shall have a value
deemed to equal the average closing share price of common stock of Golf Trust of
America, Inc. for the five (5) day period prior to the Expiration Date.
ARTICLE 6
IMPOSITIONS
6.1 PAYMENT OF IMPOSITIONS. Subject to Section 6.3 and Section 17.9,
Tenant will pay, or cause to be paid, all Impositions before any fine, penalty,
interest or cost may be added for non-payment, such payments to be made directly
to the taxing authorities where feasible. All payments of Impositions shall be
subject to Tenant's right of contest pursuant to the provisions of Article 14.
Upon request, Tenant shall promptly furnish to Landlord copies of official
receipts, if available, or other satisfactory proof evidencing such payments,
such as canceled checks
6.2 INFORMATION AND REPORTING. Landlord shall give prompt notice to
Tenant of all Impositions payable by Tenant hereunder of which Landlord at any
time has actual knowledge, but Landlord's failure to give any such notice shall
in no way diminish Tenant's obligations hereunder to pay such Impositions.
Landlord and Tenant shall, upon reasonable request of the other, provide such
data as is maintained by the party to whom the request is made with respect to
the Property as may be necessary to prepare any required returns and reports. In
the event any applicable governmental authorities classify any property covered
by this Lease as personal property, Tenant shall file all personal property tax
returns in such jurisdictions where it must legally so file. Each party, to the
extent it possesses the same, will provide the other party, upon reasonable
request, with cost and depreciation records necessary for filing returns for any
property so classified as personal property.
6.3 PRORATIONS. Impositions imposed in respect of the tax-fiscal period
during which the Lease commences or terminates shall be adjusted and prorated
between Landlord and Tenant, whether or not such Imposition is imposed before or
after such commencement or termination, and Tenant's obligation to pay its
prorated share thereof shall survive such termination. If any Imposition may, at
the option of the taxpayer, lawfully be paid in installments (whether or not
interest shall accrue on the unpaid balance of such Imposition), Tenant may
elect to pay in installments, in which event Tenant shall pay all installments
(and any accrued interest
20
on the unpaid balance of the Imposition) that are due during the Term hereof
before any fine, penalty, premium, further interest or cost may be added
thereto.
6.4 REFUNDS. If any refund shall be due from any taxing authority in
respect of any Imposition paid by Tenant, the same shall be paid over to or
retained by Tenant if no Event of Default shall have occurred hereunder and be
continuing. Any such funds retained by Landlord due to an Event of Default shall
be applied as provided in Article 17.
6.5 UTILITY CHARGES. Tenant shall pay or cause to be paid prior to
delinquency charges for all utilities and services, including, without
limitation, electricity, telephone, trash disposal, gas, oil, water, sewer,
communication and all other utilities used in the Property during the Term.
6.6 ASSESSMENT DISTRICTS. Landlord shall not voluntarily consent to or
agree in writing to (i) any special assessment or (ii) the inclusion of any
material portion of the Leased Property into a special assessment district or
other taxing jurisdiction unless Tenant shall have consented thereto, which
consent shall not be unreasonably withheld or unless Landlord agrees to pay the
cost thereof.
ARTICLE 7
TENANT WAIVERS
7.1 NO TERMINATION ABATEMENT, ETC. Subject to Article 21 and except as
otherwise specifically provided in this Lease, and except for those causes
resulting from the willful misconduct or gross negligence of Landlord or any
person whose claim arose under Landlord, (i) Tenant, to the extent permitted by
law, shall remain bound by this Lease in accordance with its terms and shall
neither take any action without the consent of Landlord to modify, surrender or
terminate the same, nor be entitled to any abatement, deduction, deferment or
reduction of Rent, or set-off against the Rent by reason of, and (ii) the
respective obligations of Landlord and Tenant shall not be otherwise affected by
reason of:
(a) any damage to, or destruction of, any Property or any
portion thereof from whatever cause or any taking of the Property or
any portion thereof;
(b) the lawful or unlawful prohibition of, or restriction
upon, Tenant's use of the Property, or any portion thereof, the
interference with such use by any Person, or by reason of eviction
by paramount title;
(c) any claim which Tenant has or might have against Landlord
or by reason of any default or breach of
21
any warranty by Landlord under this Lease or any other agreement between
Landlord and Tenant, or to which Landlord and Tenant are parties;
(d) any bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding up or other
proceedings affecting Landlord or any assignee or transferee of
Landlord; or
(e) for any other cause whether similar or dissimilar to any
of the foregoing other than a discharge of Tenant from any such
obligations as a matter of law.
Tenant hereby specifically waives all rights, arising from any occurrence
whatsoever, which may now or hereafter be conferred upon it by law (i) to
modify, surrender or terminate this Lease or quit or surrender the Property or
any portion thereof, or (ii) to entitle Tenant to any abatement, reduction,
suspension or deferment of the Rent or other sums payable by Tenant hereunder,
except as otherwise specifically provided in this Lease. The obligations of
Landlord and Tenant hereunder shall be separate and independent covenants and
agreements and the Rent and all other sums payable by Tenant hereunder shall
continue to be payable in all events unless the obligations to pay the same
shall be terminated pursuant to the express provisions of this Lease or by
termination of this Lease other than by reason of an Event of Default.
7.2 CONDITION OF THE PROPERTY. Tenant acknowledges receipt and delivery
of possession of the Property and that Tenant has examined and otherwise has
knowledge of the condition of the Property prior to the execution and delivery
of this Lease and has found the same to be in good order and repair and
satisfactory for its purposes hereunder. Regardless, however of any inspection
made by Tenant of the Property and whether or not any patent or latent defect or
condition was revealed or discovered thereby, Tenant is leasing the Property "as
is" in its present condition. Tenant waives and releases any claim or cause of
action against Landlord with respect to the condition of the Property including
any defects or adverse conditions latent or patent, matured or unmatured, known
or unknown by Tenant or Landlord as of the date hereof. TENANT ACKNOWLEDGES THAT
LANDLORD (WHETHER ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT
MADE AND WILL NOT MAKE, NOR SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY
OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING
ANY WARRANTY OR REPRESENTATION AS TO (i) ITS FITNESS, DESIGN OR CONDITION FOR
ANY PARTICULAR USE OR PURPOSE, (ii) THE QUALITY OF THE MATERIAL OR WORKMANSHIP
THEREIN, (iii) THE EXISTENCE OF ANY DEFECT, LATENT OR PATENT, (iv) LANDLORD'S
TITLE THERETO, (v) VALUE, (vi) COMPLIANCE WITH SPECIFICATIONS, (vii) LOCATION,
(viii) USE, (ix) CONDITION, (x) MERCHANTABILITY, (xi) QUALITY, (xii)
DESCRIPTION, (xiii) DURABILITY, (xiv) OPERATION, (xv) THE EXISTENCE OF ANY
MATERIAL OR (xvi) COMPLIANCE OF THE PROPERTY WITH ANY LAW (INCLUDING
22
ENVIRONMENTAL LAWS) OR LEGAL REQUIREMENTS. TENANT ACKNOWLEDGES THAT THE PROPERTY
IS OF ITS SELECTION AND TO ITS SPECIFICATIONS AND THAT THE PROPERTY HAS BEEN
INSPECTED BY TENANT AND IS SATISFACTORY TO IT. IN THE EVENT OF ANY DEFECT OR
DEFICIENCY IN THE PROPERTY OF ANY NATURE, WHETHER LATENT OR PATENT, AS BETWEEN
LANDLORD AND TENANT, LANDLORD SHALL NOT HAVE ANY RESPONSIBILITY OR LIABILITY
WITH RESPECT THERETO OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING
STRICT LIABILITY IN TORT). THE PROVISIONS OF THIS SECTION 7.2 HAVE BEEN
NEGOTIATED AND REVIEWED BY TENANT'S LEGAL COUNSEL, AND ARE INTENDED TO BE A
COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES BY LANDLORD, EXPRESS OR
IMPLIED, WITH RESPECT TO THE PROPERTY, ARISING PURSUANT TO THE UNIFORM
COMMERCIAL CODE OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT OR ARISING
OTHERWISE.
Tenant represents to Landlord that Tenant has examined the title to the
Property prior to the execution and delivery of this Lease and has found the
same to be satisfactory for the purposes contemplated hereby. Tenant
acknowledges that (A) Tenant or an Affiliate of Tenant has previously operated
the Property and has knowledge of its condition which is superior to that of
Landlord, (B) fee simple title, except where the Property is held under a ground
lease, (both legal and equitable) is in Landlord and that Tenant has only the
leasehold right of possession and use of the Property as provided herein, (C) to
Tenant's knowledge the Improvements conform to all material Legal Requirements
and all material Insurance Requirements, (D) all easements necessary or
appropriate for the use or operation of the Property have been obtained,(E) all
contractors and subcontractors retained by Tenant who have performed work on or
supplied materials to the Property have been fully paid, and all materials to
the Property have been fully paid for, (F) the Improvements constructed by
Tenant or any Affiliate of Tenant have been completed in all material respects
in a workmanlike manner of first class quality, and (G) all equipment necessary
or appropriate for the use or operation of the Property has been installed and
is presently operative in all material respects.
ARTICLE 8
OWNERSHIP OF TANGIBLE PERSONAL PROPERTY
8.1 PROPERTY. Tenant acknowledges that (i) the Property has been
transferred to Landlord and leased to Tenant, (ii) the Property is the property
of Landlord and (iii) that Tenant has only the right to the use of such Property
during the Term of and upon the terms and conditions of this Lease.
8.2 TENANT'S PERSONAL PROPERTY. Tenant shall maintain all of the
Property, whether initially included in the Lease or thereafter
23
acquired by Landlord or Tenant, in good condition and repair, normal wear and
tear excepted. Upon the loss, destruction or obsolescence of any Tangible
Personal Property, Tenant shall replace such property with replacements of the
same type and quality as initially in place, which such property will be owned
by Tenant except to the extent acquired with funds from the Capital Replacement
Fund ("Tenant's Personal Property"). Upon the expiration or sooner termination
of this Lease, the Tenant's Personal Property shall transfer to Landlord without
requirement of any xxxx of sale or assignment; provided Landlord, at its
election, may require Tenant to execute such documentation as Landlord may
require to evidence such transfer. Tenant shall not remove any Tangible Personal
Property from the Property upon termination of the Lease. If any of such
Tangible Personal Property is stored away from the Property, Tenant will provide
Landlord with proper access to the storage facility.
8.3 TENANT'S OBLIGATIONS. Tenant shall provide and maintain, or cause to
be provided and maintained, during the entire term of the Lease, all Tangible
Personal Property, as well as merchandise for sale to the public, and food and
beverage, as shall be necessary in order to operate the Property in compliance
with (a) all applicable Legal Requirements, (b) customary practices in the golf
industry, (c) past practices of the Transferor, and (d) such other reasonable
requirements imposed by Landlord from time to time.
8.4 LANDLORD'S WAIVERS. Any lessor of Tenant's Personal Property may,
upon notice to Landlord and during reasonable hours, enter the Property and take
possession of any of Tenant's Personal Property without liability for trespass
or conversion upon a default by Tenant, provided that such lessor provide
Landlord with the opportunity to cure the defaults of Tenant on terms and
conditions satisfactory to such lessor and Landlord.
ARTICLE 9
USE OF PROPERTY
9.1 USE. After the Commencement Date and during the Term, Tenant shall
use or cause to be used the Property and the improvements thereon for its
Primary Intended Use. Tenant shall not use the Property or any portion thereof
for any other use without the prior written consent of Landlord, in Landlord's
absolute discretion. No use shall be made or permitted to be made of the
Property, and no acts shall be done, which will cause the cancellation of any
insurance policy covering the Property or any part thereof, nor shall Tenant
sell or otherwise provide to patrons, or permit to be kept, used or sold in or
about the Property any article which may be prohibited by law or by the standard
form of fire insurance policies, or any other insurance policies required to be
carried hereunder, or fire underwriters regulations. Tenant shall, at its sole
cost, comply with all of the
24
requirements pertaining to the Property or other improvements of any insurance
board, association, organization or company necessary for the maintenance of
insurance, as herein provided, covering the Property and Tenant's Personal
Property.
9.2 SPECIFIC PROHIBITED USES. Tenant shall not use or occupy or permit
the Property to be used or occupied, nor do or permit anything to be done in or
on the Property, in a manner which would (i) violate or fail to comply with any
law, rule or regulation or Legal Requirement, (ii) subject to Article 12, cause
structural injury to any of the Improvements or (iii) constitute a public or
private nuisance or waste. Tenant shall not allow any Hazardous Material to be
located in, on or under the Property, or any adjacent property, or incorporated
in the Property or any improvements thereon except in compliance with applicable
law (including any Environmental Laws). Tenant shall not allow the Property to
be used as a landfill or a waste disposal site, or a manufacturing, distribution
or disposal facility for any Hazardous Materials. Tenant shall neither suffer
nor permit the Property or any portion thereof, including Tenant's Personal
Property, to be used in such a manner as (i) might reasonably tend to impair
Landlord's title thereto or to any portion thereof, or (ii) may reasonably make
possible a claim or claims of adverse usage or adverse possession by the public,
as such, or of implied dedication of the Property or any portion thereof, or
(iii) is in material violation of any applicable Environmental Law.
9.3 MEMBERSHIP SALES. Tenant shall not sell and/or classify or
reclassify memberships, or set initiation fees, dues and other charges or
materially increase or decrease the number of memberships available at the
Property, except as follows:
(a) in accordance with Transferor's past practice, as
reasonably approved by Landlord, or
(b) membership plans and fees proposed by Tenant and approved
by Landlord, in Landlord's reasonable discretion.
9.4 LANDLORD TO GRANT EASEMENTS, ETC. Landlord shall, from time to time
so long as no Event of Default has occurred and is continuing, at the request of
Tenant and at Tenant's cost and expense (but subject to the approval of
Landlord, which approval shall not be unreasonably withheld or delayed):(i)
grant easements and other rights in the nature of easements; (ii) release
existing easements or other rights in the nature of easements which are for the
benefit of the Property; (iii) dedicate or transfer unimproved portions of the
Property for road, highway or other public purposes; (iv) execute petitions to
have the Property annexed to any municipal corporation or utility district; (v)
execute amendments to any covenants and restrictions affecting the
25
Property; and (vi) execute and deliver to any person any instrument appropriate
to confirm or effect such grants, releases, dedications and transfers (to the
extent of its interest in the Property), but only upon delivery to Landlord of
an Officer's Certificate (which Officer's Certificate, if contested by Landlord,
shall not be binding on Landlord) stating that such grant, release, dedication,
transfer, petition or amendment is not detrimental to the proper conduct of the
business of Tenant on the Property and does not reduce its value or usefulness
for the Primary Intended Use. Landlord shall not grant, release, dedicate or
execute any of the foregoing items in this Section 9.4 without obtaining
Tenant's approval, which approval shall not be unreasonably withheld or delayed.
9.5 TENANT'S ADDITIONAL COVENANTS. Tenant shall (a) join the Advisory
Association and cooperate in the activities of such association; (b) at its
election, engage in reasonable cross-marketing endeavors with the members of the
Advisory association; and (c) at its election, provide signage on the Property
which references that the Property is owned by Landlord, which signage may
include an appropriate logo selected by Landlord. In addition, it is the intent
of the parties that Tenant be a single-purpose entity with no business
operations except for those related solely to the operation of the Property for
its Primary Intended Use and other property of Landlord which may be leased to
Tenant. Tenant shall, therefore, not engage in or undertake any activities other
than those respecting the operation of the Property for its Primary Intended
Use, including leasing, managing, and operating golf courses in accordance with
this Lease.
9.6 VALUATION OF REMAINDER INTEREST IN LEASE. Tenant hereby represents
that, at the end of the Term, including all Extended Terms, it expects that the
Land and each of the Improvements will have a fair market value (determined
without regard to any increase or decrease for inflation or deflation during the
Term) equal to at least twenty percent (20%) of the fair market value of the
Land and each of the Improvements at the Commencement Date. Tenant further
represents that, at the end of the Term, including all Extended Terms, it
expects that the Land and each of the Improvements will have a remaining useful
life equal to at least twenty percent (20%) of its expected useful life at the
Commencement Date.
ARTICLE 10
HAZARDOUS MATERIALS
Except as specifically set forth in that certain Phase I Environmental
Site Assessment dated July 31, 1997, as amended, prepared by Ameican Analytical
Laboratories, Inc., Tenant hereby represents, warrants, and covenants to
Landlord as follows:
26
10.1 OPERATIONS. Except as set forth in the Agreement, the Property is
presently operated in compliance in all material respects with all Environmental
Laws.
10.2 REMEDIATION. Except as set forth in the Agreement, there are no
Environmental Laws requiring any material remediation, cleanup, repairs or
construction (other than normal maintenance) with respect to the Property.
10.3 VIOLATIONS: ORDERS. Except as set forth in the Agreement, and to the
best knowledge of Tenant, (a) no notices of any violation or alleged violation
of any Environmental Laws relating to the Property or its uses have been
received by either Tenant, or, to the best knowledge of Tenant, by any prior
owner, operator or occupant of the Property, and (b) there are no writs,
injunctions, decrees, orders or judgments outstanding, or any actions, suits,
claims, proceedings or investigations pending or threatened, relating to the
ownership, use, maintenance or operation of the Property.
10.4 PERMITS. Except as set forth in the Agreement, all material permits
and licenses required under any Environmental Laws in respect of the operations
of the Property have been obtained or are in the process of being obtained, and
Tenant shall be in compliance, in all material respects, with the terms and
conditions of such permits and licenses.
10.5 REPORTS. All material reports of environmental surveys, audits,
investigations and assessments relating to the Property in the possession or
control of Tenant, Transferor or their Affiliates are set forth or described in
the Agreement.
10.6 REMEDIATION. If Tenant becomes aware of the presence of any
Hazardous Material in a quantity sufficient to require remediation or reporting
under any Environmental Law in, on or under the Property or if Tenant, Landlord,
or the Property becomes subject to any order of any federal, state or local
agency to investigate, remove, remediate, repair, close, detoxify, decontaminate
or otherwise clean up the Property, Tenant shall, at its sole expense, but
subject to the last sentence of Section 10.7, carry out and complete any
required investigation, removal, remediation, repair, closure, detoxification,
decontamination or other cleanup of the Property. If Tenant fails to implement
and diligently pursue any such repair, closure, detoxification, decontamination
or other cleanup of the Property in a timely manner, Landlord shall have the
right, but not the obligation, to carry out such action and to recover its costs
and expenses therefor from Tenant as Additional Charges.
10.7 TENANT'S INDEMNIFICATION OF LANDLORD. Tenant shall pay, protect,
indemnify, save, hold harmless and defend Landlord, the
27
Company, Affiliates of the Company and Landlord (including, without limitation,
their respective officers, directors and controlling persons), and any Facility
Mortgagee from and against all liabilities, obligations, claims, damages
(including punitive or consequential damages), penalties, causes of action,
demands, judgments, costs and expenses (including reasonable attorneys' fees and
expenses), to the extent permitted by law, imposed upon or incurred by or
asserted against Landlord or the Property by reason of any Environmental Law
(irrespective of whether there has occurred any violation of any Environmental
law) in respect of the Property howsoever arising, without regard to fault on
the part of Tenant, including (a) liability for response costs and for costs of
removal and remedial action incurred by the United States Government, any state
or local governmental unit to any other Person, or damages from injury to or
destruction or loss of natural resources, including the reasonable costs of
assessing such injury, destruction or loss, incurred pursuant to any
Environmental Law, (b) liability for costs and expenses of abatement,
investigation, removal, remediation, correction or clean-up, fines, damages,
response costs or penalties which arise from the provisions of any Environmental
Law, (c) liability for personal injury or property damage arising under any
statutory or common-law tort theory, including damages assessed for the
maintenance of a public or private nuisance or for carrying on of a dangerous
activity, or (d) by reason of a breach of a representation or warranty in
Sections 10.1 through 10.5 of this Lease. Notwithstanding the foregoing or any
other provision of this Lease (including, without limitation, Section 7.2,
Section 10.9 and Article 23),Tenant shall not be liable, or otherwise be
required to indemnify Landlord or the Company or any Affiliates of the Company
for (i) any matters or events that arise after the Commencement Date that are
not caused by any act or omission on the part of Tenant, or (ii) any matters or
events that arise after the Commencement Date that are directly caused by a
breach by Landlord of the terms of this Lease.
10.8 SURVIVAL OF INDEMNIFICATION OBLIGATIONS. Tenant's obligations and/or
liability under this Article 10 arising during the Term hereof shall survive any
termination of this Lease.
10.9 ENVIRONMENTAL VIOLATIONS AT EXPIRATION OR TERMINATION OF LEASE.
Notwithstanding any other provision of this Lease (except the last sentence of
Section 10.7), if, at a time when the Term would otherwise terminate or expire,
a violation of any Environmental Law has been asserted by Landlord and has not
been resolved in a manner reasonably satisfactory to Landlord, or has been
acknowledged by Tenant to exist or has been found to exist at the Property or
has been asserted by any governmental authority and Tenant's failure to have
completed all action required to correct, xxxxx or remediate such a violation of
any Environmental Law materially impairs the leasability of the Property upon
the expiration of the Term, then, at the option of Landlord, the Term
28
shall be automatically extended with respect to the Property beyond the date of
termination or expiration and this Lease shall remain in full force and effect
under the same terms and conditions beyond such date with respect to the
Property until the earlier to occur of (i) the completion of all remedial action
in accordance with applicable Environmental Laws or (ii) 12 months beyond such
expiration or Termination date; PROVIDED, that Tenant may, upon any such
extension of the Term, terminate the Term by paying to Landlord such amount as
is necessary in the reasonable judgment of Landlord to complete or perform such
remedial action.
ARTICLE 11
MAINTENANCE AND REPAIR
11.1 TENANT'S OBLIGATIONS. Tenant, at its expense, will operate and
maintain the Property in good order, repair and appearance (whether or not the
need for such repairs occurs as a result of Tenant's use, any prior use, the
elements or the age of the Property or any portion thereof) and in accordance
with any applicable Legal Requirements, and, except as otherwise provided in
Article 15, with reasonable promptness, make all necessary and appropriate
repairs thereto of every kind and nature, whether interior or exterior,
structural or non-structural, ordinary or extraordinary, foreseen or unforeseen
or arising by reason of a condition existing prior to the Commencement Date
(concealed or otherwise). Tenant shall operate and maintain the Property in
accordance with the operation and maintenance practices of the Property at the
Commencement Date and otherwise in a manner comparable to other comparable golf
course facilities in the vicinity of the Property. Landlord may consult with the
Advisory Association from time to time with respect to Tenant's compliance with
its maintenance and operation obligations under this Section 11.1, and Landlord
and representatives of Advisory Association shall have the right from time to
time to enter the Property for the purpose of inspecting the Property. If
Landlord, in consultation with the Advisory Association, determines that Tenant
has failed to comply with its maintenance and operation obligations under this
Section 11.1, Landlord shall provide written notice to Tenant setting forth a
list of remedial work and/or steps to be performed by Tenant. Tenant shall
promptly and diligently perform such remedial work and/or steps as recommended
by Landlord, provided if Tenant objects to one or more of the remedial
obligations proposed by Landlord, then the matter shall be submitted to the
dispute resolution procedure set forth in Section 12.7. Tenant will not take or
omit to take any action the taking or omission of which could reasonably be
expected to impair the value or the usefulness of the Property or any part
thereof for its Primary Intended Use.
11.2 WAIVER OF STATUTORY OBLIGATIONS. Landlord shall not under any
circumstances be required to build or rebuild any improvements on the Property,
or to make any repairs, replacements, alterations,
29
restorations or renewals of any nature or description to the Property, whether
ordinary or extraordinary, structural or non-structural, foreseen or unforeseen,
or to make any expenditure whatsoever with respect thereto, in connection with
this Lease, or to maintain the Property in any way. Tenant hereby waives, to the
extent permitted by law, the right to make repairs at the expense of Landlord
pursuant to any law in effect at the time of the execution of this Lease or
hereafter enacted.
11.3 MECHANIC'S LIENS. Nothing contained in this Lease and no action or
inaction by Landlord shall be construed as (i)constituting the consent or
request of Landlord expressed or implied, to any contractor, subcontractor,
laborer, materialman or vendor to or for the performance of any labor or
services or the furnishing of any materials or other property for the
construction, alteration, addition, repair or demolition of or to the Property
or any part thereof; or (ii) giving Tenant any right, power or permission to
contract for or permit the performance of any labor or services or the
furnishing of any materials or other property, in either case, in such fashion
as would permit the making of any claim against Landlord in respect thereof or
to make any agreement that may create, or in any way be the basis for, any
right, title, interest, lien, claim or other encumbrance upon the estate of
Landlord in the Property, or any portion thereof.
11.4 SURRENDER OF PROPERTY. Unless the Lease shall have been terminated
pursuant to the provisions of Article 15, Tenant shall, upon the expiration or
prior termination of the Term, vacate and surrender the Property to Landlord in
the condition in which the Property was originally received from Landlord,
except as repaired, rebuilt, restored, altered or added to as permitted or
required by the provisions of this Lease and except for ordinary wear and tear
(subject to the obligation of Tenant to maintain the Property in good order and
repair during the entire Term of the Lease).
ARTICLE 12
TENANT IMPROVEMENTS; SUBMITTAL OF BUDGETS; FINANCIAL STATEMENTS
12.1 TENANT'S RIGHT TO CONSTRUCT. Subject to the prior written approval
of Landlord in its reasonable discretion, during the Lease Term Tenant may make
alterations, additions, changes and/or improvements to the Property
(individually, a "Tenant Improvement," and collectively, "Tenant Improvements").
Any such Tenant Improvement shall be made at Tenant's sole expense and shall
become the property of Landlord upon termination of this Lease. Unless made on
an emergency basis to prevent injury to Person or property, Tenant will submit
plans and specifications for any Tenant Improvements, in the form necessary for
any required building permits, to Landlord for Landlord's prior written
approval, such approval not to be unreasonably withheld or delayed.
30
Upon approval by Landlord:
(a) Tenant shall diligently seek all governmental approvals
and any other necessary private approvals (E.G.,ground lessor,
mortgagee, etc.) relating to the construction of any Tenant
Improvement; and
(b) once Tenant begins the construction of any Tenant
Improvement, Tenant shall diligently prosecute any such Tenant
Improvement to completion in accordance with applicable insurance
requirements and the laws, rules and regulations of all governmental
bodies or agencies having jurisdiction over the Property; and
(c) Tenant shall not suffer or permit any mechanics' liens or
any other claims or demands arising from the work of construction of
any Tenant Improvement to be enforced against the Property or any
part thereof, and Tenant agrees to hold Landlord and the Property
free and harmless from all liability from any such liens, claims or
demands, together with all costs and expenses in connection
therewith: and
(d) all work shall be performed in a good and workmanlike
manner.
12.2 SCOPE OF RIGHT. Subject to Section 12.1, at Tenant's cost and
expense, Tenant shall have the right to:
(a) seek any governmental approvals, including building
permits, licenses, conditional use permits and any certificates of
need that Tenant requires to construct any Tenant Improvement;
(b) erect upon the Property such Tenant Improvements as Tenant
deems desirable; and
(c) engage in any other lawful activities that Tenant
determines are necessary or desirable for the development of the
Property in accordance with its Primary Intended Use.
12.3 COOPERATION OF LANDLORD. Landlord shall cooperate with Tenant and
take such actions, including the execution and delivery to Tenant of any
applications or other documents, reasonably requested by Tenant in order to
obtain any governmental approvals sought by Tenant to construct any Tenant
Improvement approved by Landlord in accordance with Section 12.1 of this Lease
within ten (10) Business Days following the later of (a) the date Landlord
receives Tenant's request, or (b) the date of delivery of any such application
or document to Landlord, so long as the taking of such action, including the
execution of said applications or documents,
31
shall be without cost to Landlord (or if there is a cost to Landlord, such cost
shall be reimbursed by Tenant), and will not cause Landlord to be in violation
of any law, ordinance or regulation.
Landlord shall have the right at any time and from time to time to post
and maintain upon the Property such notices as may be necessary to protect
Landlord's interest from mechanics' liens, materialmen's liens or liens of a
similar nature.
12.4 CAPITAL REPLACEMENT FUND. Solely from the payment of additional rent
received pursuant to Section 4.9 of this Lease, Landlord shall be obligated to
accrue the Capital Replacement Reserve. The Capital Replacement Reserve shall
accrue quarterly based on the Officer's Certificate and shall be placed in the
Capital Replacement Fund. Amounts in the Capital Replacement Fund from time to
time shall be deemed to accrue interest at a money market rate as reasonably
determined by Landlord and such interest shall be credited to the Capital
Replacement Fund. Upon the written request by Tenant to Landlord stating the
specific use to be made and subject to the reasonable approval of Landlord, the
Capital Replacement Fund shall be made available to Tenant for Capital
Expenditures; PROVIDED, HOWEVER, no portion of amounts credited to the Capital
Replacement Fund shall be used to purchase property to the extent that doing so
would cause Landlord to recognize income other than "rents from real property"
as defined in Section 856(d) of the Code. Tenant shall have no rights with
respect to any amounts in the Capital Replacement Fund except as provided
herein. If any amount remains in the Capital Replacement Fund at the expiration
or termination of the Lease, Landlord shall retain all funds remaining in the
Capital Replacement Fund. Subject to Landlord's approval of the Capital
Expenditures, Landlord shall make available to Tenant amounts from the Capital
Replacement Fund under the following conditions:
(a) No Event of Default exists and is continuing;
(b) Tenant presents paid qualifying receipts for
reimbursement, or qualifying invoices for direct payment to the
vendor;
(c) Such expenditures are included in the Capital Budget
submitted to and approved by Landlord in accordance with Section
12.7; and
(d) Amounts credited to the Capital Replacement Fund shall be
allocated for use by Tenant as follows: (i) sixty percent (60%) of such
amounts to be used by Tenant for long-term Capital Expenditures; and (ii)
forty percent (40%) of such amounts to be used by Tenant for short-term
Capital Expenditures, and Landlord shall determine what constitutes
32
long-term Capital Expenditures and short-term Capital Expenditures, in its
reasonable discretion.
(e) If from time to time Tenant shall expend monies beyond the
balance in the Capital Replacement Fund, then Tenant shall be
afforded the opportunity to present such paid invoices for
reimbursement at later dates when the Tenant's reserve balance shall
be replenished to a level that can support such expenditure.
12.5 RIGHTS IN TENANT IMPROVEMENTS. All Tenant Improvements shall be the
property of Landlord. However, Tenant shall be entitled to all federal and state
income tax benefits associated with any Tenant Improvement during the Lease Term
exclusive of any Capital Expenditures paid for from amounts credited to the
Capital Replacement Fund, as to which Landlord shall be entitled all income tax
benefits.
12.6 LANDLORD'S RIGHT TO AUDIT CALCULATION OF GROSS GOLF REVENUE AND FB&M
REVENUE. Landlord, at its own expense except as provided hereinbelow, shall have
the right from time to time directly or through its accountants to audit the
information set forth in the Officer's Certificate referred to in Section 4.4
and in connection with such audits to examine Tenant's book and records with
respect thereto (including supporting data, sales tax returns and Tenant's work
papers). If any such audit discloses a deficiency in the payment of Percentage
Rent or FB&M Rent, Tenant shall forthwith pay to Landlord the amount of the
deficiency as finally agreed or determined, together with interest at the
Overdue Rate from the date when said payment should have been made to the date
of payment thereof; PROVIDED, HOWEVER, that as to any audit that is commenced
more than twelve (12) months after the date Gross Golf Revenue and FB&M
Revenuefor any Fiscal Year is reported by Tenant to Landlord in the Officer's
Certificate, the deficiency, if any, with respect to such Gross Golf Revenue and
FB&M Revenue shall bear interest as permitted herein only from the date such
determination of deficiency is made unless such deficiency is the result of
gross negligence or willful misconduct on the part of Tenant. If any such audit
discloses that the Gross Golf Revenue and FB&M Revenue actually received by
Tenant for any Fiscal Year exceeds the Gross Golf Revenue and FB&M Revenue
reported by Tenant in the Officer's Certificate by more than two percent (2%),
then Tenant shall pay all reasonable costs of such audit and examination;
provided Tenant shall have the right to submit the audit determination to
arbitration in accordance with the procedures set forth in Article 28. Landlord
shall also have the right to review and audit from time to time Tenant's
business operations including all books, records and financial statements of
Tenant. Tenant shall promptly provide to Landlord copies of all such books,
records, financial statements or any other documentation of Tenant's business
operations reasonably requested by Landlord.
33
12.7 ANNUAL BUDGET. Not later than forty-five (45)days prior to the
commencement of each Fiscal Year, Tenant shall prepare and submit to Landlord an
operating budget (the"Operating Budget") and a capital budget (the "Capital
Budget") prepared in accordance with the requirements of this Section 12.7. The
Operating Budget and the Capital Budget (together, the"Annual Budget") shall be
prepared in a form approved by Landlord for use throughout the Lease Term and
show by quarter and for the year as a whole the following:
(a) Tenant's reasonable estimate of Gross Golf Revenue
(including membership dues, daily use fees and other sources of
Gross Golf Revenue) and other revenue for the forthcoming Fiscal
Year itemized on schedules on a quarterly basis as approved by
Landlord and Tenant, together with assumptions, in narrative form,
forming the basis of such schedules.
(b) An estimate of any amounts Landlord will be requested to
provide for Capital Expenditures, allocated among long and
short-term Capital Expenditures, during the next four Fiscal Years,
subject to the limitations set forth in Section 12.4.
(c) A cash flow projection.
(d) A narrative description of any anticipated significant
events, including, if requested by Landlord, a narrative description
of any category of operating expenses that decrease or increase by
five percent (5%) or more from the prior year's expenses.
(e) Tenant's reasonable estimate for each Fiscal Quarter of
the Percentage Rent and FB&M Rent to be paid for such quarter.
Landlord shall have seventy-five (75) days after the date on which it
receives the Annual Budget to review, approve or disapprove the Annual Budget.
If the parties are not able to reach agreement on the Annual Budget for any
Fiscal Year during Landlord's seventy-five (75) day review period, the parties
shall attempt in good faith during the subsequent thirty (30) day period to
resolve any disputes, which attempts shall include, if requested by either
party, at least one (1) meeting of executive-level officers of Landlord and
Tenant and one (1) meeting with the directors of the Advisory Association. In
the event the parties are still not able to reach agreement on the Annual Budget
for any particular Fiscal Year after complying with the foregoing requirements
of this Section 12.7, the parties shall adopt such portions of the Operating
Budget and the Capital Budget as they may have agreed upon, and any matters not
agreed upon shall be referred
34
to a dispute resolution committee composed of three (3) members of the Advisory
Association unaffiliated with Tenant and two (2) members of the board of
directors of the Company. Such committee shall be responsible for resolving any
such disagreement and the parties agree that the determination of such dispute
resolution committee shall be binding on the parties. Pending the results of
such resolution or the earlier agreement of the parties, (i) if the Operating
Budget has not been agreed upon, the Property will be operated in a manner
consistent with the prior year's Operating Budget until a new Operating Budget
is adopted, and (ii) if the Capital Budget has not been agreed upon, no Capital
Expenditures shall be made unless the same are set forth in a previously
approved Capital Budget or are specifically required by Landlord or are
otherwise required to comply with Legal Requirements or Insurance Requirements.
Tenant shall operate the Property in a manner reasonably consistent with the
Annual Budget.
12.8 FINANCIAL STATEMENTS.
(a) Tenant shall utilize, or cause to be utilized, an accounting system
for the Property in accordance with its usual and customary practice, and in
accordance with GAAP, and a computer system that will accurately record all data
necessary to compute Percentage Rent and FB&M Rent, and Tenant shall retain for
at least five (5) years after the expiration of each Fiscal Year, reasonably
adequate records conforming to such accounting system showing all data necessary
to compute Percentage Rent and FB&M Rent. The books of account and all other
records relating to or reflecting the operation of the Property shall be kept
either at the Property or at Tenant's offices in Green, Summit County, Ohio.
Such books and records shall be available to Landlord and its representatives
for examination, audit, inspection and transcription.
(b) Tenant shall furnish to Landlord within ten (10) days of each month
unaudited operating statements in a form more particularly described in Exhibit
G attached hereto, which shall include the following: Gross Golf Revenues, Other
Revenue, FB&M Revenue, Operating Expenses, Other Expenses, actual results of
monthly rounds of golf played, and revenues per player.
(c) Tenant shall furnish to Landlord within twenty (20) days of the end
of each Fiscal Quarter unaudited financial statements for the Fiscal Quarter and
year to date, together with the same information for the comparable prior Fiscal
Quarter and year to date, including the following: results of operations,
balance sheet, statements of cash flows and statement of changes in owner's
equity. If Landlord requests, Tenant shall provide reviewed financial statements
for such Fiscal Quarter; provided, however, such review shall be at Landlord's
expense. Each quarterly report shall also include a narrative explaining any
deviation in any major revenue or expense category or operating expenses (by
35
category) of more than ten percent (10%) from the amounts set forth on the
Annual Budget, together with, if appropriate a revised Annual Budget, which
budget shall be subject to Landlord's review and approval as provided in Section
12.7. Each quarterly report shall also forecast any projected Percentage Rent
and FB&M Rent payable for the following Fiscal Quarter.
(d) For each Fiscal Year, Tenant shall deliver to Landlord within sixty
(60) days of the end of such Fiscal Year financial statements prepared in
accordance with GAAP and audited by an independent accounting firm approved by
Landlord, in its reasonable discretion. Notwithstanding the foregoing, Landlord
shall only require audited financial statements of Gross Golf Revenue if
Tenant's financial statements are not required to be separately stated by the
Securities and Exchange Commission.
(e) If requested by Landlord, Tenant will make available to Landlord and
the Company and their respective lenders, underwriters, counsel, accountants and
advisors such additional information and financial statements with respect to
Tenant and the Property as Landlord may reasonably request without any
additional cost to Tenant, and Tenant agrees to reasonably cooperate with
Landlord and the Company in effecting public or private debt or equity
financings by the Landlord or the Company, without any additional cost to
Tenant, modifications to this Lease or the requirement of additional collateral
from Tenant.
ARTICLE 13
LIENS, ENCROACHMENTS AND OTHER TITLE MATTERS
13.1 LIENS. Subject to the provisions of Article 14 relating to permitted
contests, Tenant will not directly or indirectly create or allow to remain, and
will promptly discharge at its expense any lien, encumbrance, attachment, title
retention agreement or claim upon the Property or any attachment, levy, claim or
encumbrance emanating from Tenant's actions or negligence, not including,
however:
(a) this Lease;
(b) the matters, if any, that existed as of the Commencement
Date, as set forth on the title policy received by Landlord;
(c) restrictions, liens and other encumbrances which are
consented to in writing by Landlord, or any easements granted
pursuant to the provisions of Section 9.4 of this Lease;
(d) liens for those taxes of Landlord which Tenant is not
required to pay hereunder;
36
(e) subleases or licenses permitted by Article 23;
(f) liens for Impositions or for sums resulting from
noncompliance with Legal Requirements so long as (1) the same are
not yet payable or are payable without the addition of any fine or
penalty or (2) such liens are in the process of being contested as
permitted by Article 14;
(g) liens of mechanics, laborers, materialmen, suppliers or
vendors for sums either disputed (PROVIDED THAT such liens are in
the process of being contested as permitted by Article 14) or not
yet due; and
(h) any liens which are the responsibility of Landlord
pursuant to the provisions of Article 25.
13.2 ENCROACHMENTS AND OTHER TITLE MATTERS. Subject to Article 21 and
excepting any matters granted or created by Landlord after the Commencement
Date, if any of the Improvements shall, at any time, encroach upon any property,
street or right-of-way adjacent to the Property, or shall violate the agreements
or conditions contained in any lawful restrictive covenant or other agreement
affecting the Property, or any part thereof, or shall impair the rights of
others under any easement or right-of-way to which the Property is subject, or
the use of the Property is impaired, limited or interfered with by reason of the
exercise of the right of surface entry or any other rights under a lease or
reservation of any oil, gas, water or other minerals, then promptly upon request
of Landlord or at the behest of any person affected by any such encroachment,
violation or impairment, Tenant, at its sole cost and expense (subject to its
right to contest the existence of any such encroachment, violation or
impairment), shall protect, indemnify, save harmless and defend landlord, the
Company and Affiliates of the Company from and against all losses, liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses
(including reasonable attorneys' fees and expenses) based on or arising by
reason of any such encroachment, violation or impairment and in such case, in
the event of an adverse final determination, either (i) obtain valid and
effective waivers or settlements of all claims, liabilities and damages
resulting from each such encroachment, violation or impairment, whether the same
shall affect Landlord or Tenant; or (ii) make such changes in the Improvements,
and take such other actions, as Tenant in the good faith exercise of its
judgment deems reasonably practicable, to remove such encroachment, and to end
such violation or impairment, including, if necessary, the alteration of any of
the Improvements, and in any event take all such actions as may be necessary in
order to be able to continue the operation of the Improvements for the Primary
Intended Use substantially in the manner and to the extent
37
the Improvements were operated prior to the assertion of such violation or
encroachment. Tenant's obligation under this Section 13.2 shall be in addition
to and shall in no way discharge or diminish any obligation of any insurer under
any policy of title or other insurance and Tenant shall be entitled to a credit
for any sums recovered by Landlord under any such policy of title or other
insurance.
ARTICLE 14
PERMITTED CONTESTS
14.1 AUTHORIZATION. Tenant, on its own or on Landlord's behalf (or in
Landlord's name) but at Tenant's expense, may contest, by appropriate legal
proceedings conducted in good faith and with due diligence, the amount, validity
or application, in whole or in part, of any Imposition or any Legal Requirement
or Insurance Requirement, or any lien, attachment, levy, encumbrance, charge or
claim not otherwise permitted by Section 13.1; provided, however, that nothing
in this Section 14.1 shall limit the right of Landlord to contest the amount,
validity or application, in whole or in part, of any Imposition, Legal
Requirement, Insurance Requirement, or any lien, attachment, levy, encumbrance,
charge or claim with respect to the Property (and Tenant shall reasonably
cooperate with Landlord with respect to such contest), and, FURTHER PROVIDED
THAT:
(a) in the case of an unpaid Imposition, lien, attachment,
levy, encumbrance, charge or claim, the commencement and
continuation of such proceedings shall suspend the collection
thereof from Landlord and from the Property, and neither the
Property nor any Rent there from nor any part thereof or interest
therein would be in any danger of being sold, forfeited, attached or
lost pending the outcome of such proceedings;
(b) in the case of a Legal Requirement, Landlord would not
be subject to criminal or material civil liability for failure to
comply therewith pending the outcome of such proceedings. Nothing in
this Section 14.1(b), however, shall permit Tenant to delay
compliance with any requirement of an Environmental Law to the
extent such non-compliance poses an immediate threat of injury to
any Person or to the public health or safety or of material damage
to any real or personal property;
(c) in the case of a Legal Requirement and/or an Imposition,
lien, encumbrance or charge, Tenant shall give such reasonable
security, if any, as may be demanded by Landlord to insure ultimate
payment of the same and to prevent any sale or forfeiture of the
affected Property or the Rent by reason of such non-payment or
noncompliance, PROVIDED. HOWEVER, the provisions of this
38
Article 14 shall not be construed to permit Tenant to contest the payment
of Rent (except as to contests concerning the method of computation or the
basis of levy of any Imposition or the basis for the assertion of any
other claim) or any other sums payable by Tenant to Landlord hereunder;
(d) no such contest shall interfere in any material respect
with the use or occupancy of the Property;
(e) in the case of an Insurance Requirement, the coverage
required by Article 15 shall be maintained; and
(f) if such contest be finally resolved against Landlord or
Tenant, Tenant shall, as Additional Charges due hereunder, promptly
pay the amount required to be paid, together with all interest and
penalties accrued thereon, or comply with the applicable Legal
Requirement or Insurance Requirement.
14.2 INDEMNIFICATION OF LANDLORD. Landlord, at Tenant's expense, shall
execute and deliver to Tenant such authorizations and other documents as may
reasonably be required in any such contest, and, if reasonably requested by
Tenant or if Landlord so desires, Landlord shall join as a party therein.
Tenant shall indemnify and save Landlord harmless against any liability, cost or
expense of any kind that may be imposed upon Landlord in connection with any
such contest and any loss resulting therefrom.
ARTICLE 15
INSURANCE
15.1 GENERAL INSURANCE REQUIREMENTS. During the Lease Term, Tenant shall
at all times keep the Property, and all property located in or on the Property,
including all Tenant's Personal Property and any Tenant Improvements, insured
with the kinds and amounts of insurance described below. This insurance shall be
written by companies authorized to do insurance business in the State, and shall
otherwise meet the requirements set forth in Section 15.5 of this Lease. The
policies must name Landlord as an additional insured or loss payee, as
applicable. Losses shall be payable to Landlord and/or Tenant as provided in
this Article 15. In addition, the policies shall name as a loss payee any
Facility Mortgagee by way of a standard form of mortgagee's loss payable
endorsement. Any loss adjustment shall require the written consent of Landlord,
Tenant, and each Facility Mortgagee, if any. Evidence of insurance shall be
deposited with Landlord and, if requested, with any Facility Mortgagee(s). The
policies on the Property, including the Improvements, Fixtures, Tangible and
Intangible
39
Personal Property and any Tenant Improvements, shall insure against the
following risks:
(a) ALL RISK. Loss or damage by all risks or perils
including, but not limited to, fire, vandalism, malicious mischief
and extended coverages, including sprinkler leakage, in an amount
not less than 100% of the then Full Replacement Cost thereof
covering all structures built on the Property and all Tangible
Personal Property; and further provided the Tangible Personal
Property may be insured at its fair market value.
(b) LIABILITY. Claims for personal injury or property damage
under a policy of comprehensive general public liability insurance
with amounts not less than five million dollars ($5,000,000) per
occurrence and in the aggregate.
(c) FLOOD. Flood insurance (when the Property is located in
whole or in material part a designated floodplain area) in an amount
similar to the amount insured by comparable golf course properties
in the area. Notwithstanding the foregoing, Tenant shall not be
required to participate in the National Flood Insurance Program or
otherwise obtain flood insurance to the extent not available at
commercially reasonable rates; provided Tenant shall give landlord
written notice thereof prior to canceling or not obtaining any flood
insurance. Tenant may opt to insure the structures only, and not the
Land, subject to the approval of Landlord, in Landlord's reasonable
discretion.
(d) WORKER'S COMPENSATION. Adequate worker's compensation
insurance coverage for all Persons employed by Tenant on the
Property in accordance with the requirements of applicable federal,
state and local laws. Tenant shall have the option to self-insure up
to five thousand dollars ($5,000) of the amount of insurance
required in the event state law permits such self-insurance, subject
to the approval of Landlord, in Landlord's sole and absolute
discretion.
15.2 OTHER INSURANCE. Such other insurance on or in connection with any
of the Property as Landlord or any Facility Mortgagee may reasonably require,
which at the time is usual and commonly obtained in connection with properties
similar in type of building size and use to the Property and located in the
geographic area where the Property is located.
15.3 REPLACEMENT COST. In the event either party believes that the Full
Replacement Cost of the insured property has increased or
40
decreased at any time during the Lease Term, it shall have the right to have
such Full Replacement Cost redetermined by the Impartial Appraiser. The party
desiring to have the Full Replacement Cost so redetermined shall forthwith, on
receipt of such determination by such Impartial Appraiser, give written notice
thereof to the other party hereto. The determination of such Impartial Appraiser
shall be final and binding on the parties hereto, and Tenant shall forthwith
increase, or may decrease, the amount of the insurance carried pursuant to this
Section 15.3, as the case may be, to the amount so determined by the Impartial
Appraiser. Each party shall pay one-half of the fee, if any, of the Impartial
Appraiser.
15.4 WAIVER OF SUBROGATION. All insurance policies carried by either
party covering the Property including contents, fire and casualty insurance,
shall expressly waive any right of subrogation on the part of the insurer
against the other party (including any Facility Mortgagee). The parties hereto
agree that their policies will include such waiver clause or endorsement so long
as the same are obtainable without extra cost, and in the event of such an extra
charge the other party, at its election, may pay the same, but shall not be
obligated to do so.
15.5 FORM SATISFACTORY, ETC. All of the policies of insurance referred to
in this Article 15 shall be written in a form reasonably satisfactory to
Landlord and by insurance companies rated not less than XV by A.M. Best's
Insurance Guide. Tenant shall pay all premiums for the policies of insurance
referred to in Sections 15.1 and 15.2 and shall deliver certificates thereof to
Landlord prior to their effective date(and with respect to any renewal policy,
at least ten (10) days prior to the expiration of the existing policy). In the
event Tenant fails to satisfy its obligations under this Article 15, Landlord
shall be entitled, but shall have no obligation, to effect such insurance and
pay the premiums therefore, which premiums shall be repayable to Landlord upon
written demand as Additional Charges. Each insurer issuing policies pursuant to
this Article 15 shall agree, by endorsement on the policy or policies issued by
it, or by independent instrument furnished to Landlord, that it will give to
Landlord thirty (30) days' written notice before the policy or policies in
question shall be altered, allowed to expire or canceled. Each such policy shall
also provide that any loss otherwise payable thereunder shall be payable
notwithstanding (i) any act or omission of Landlord or Tenant which might,
absent such provision, result in a forfeiture of all or a part of such insurance
payment, (ii) the occupation or use of the Property for purposes more hazardous
than those permitted by the provisions of such policy, (iii) any foreclosure or
other action or proceeding taken by any Facility Mortgagee pursuant to any
provision of a mortgage, note, assignment or document evidencing or securing a
loan upon the happening of an
41
event of default therein or (iv) any change in title to or ownership of the
Property
15.6 CHANGE IN LIMITS. In the event that Landlord shall at any time
reasonably determine on the basis of prudent industry practice that the
liability insurance carried by Tenant pursuant to Sections 15.1 and 15.2 is
either excessive or insufficient, the parties shall endeavor to agree on the
proper and reasonable limits for such insurance to be carried; and such
insurance shall thereafter be carried with the limits thus agreed on until
further changed pursuant to the provisions of this Article 15; provided,
however, that the deductibles for such insurance or the amount of such insurance
which is self-retained by Tenant shall be as reasonably determined by Tenant so
long as Tenant can reasonably demonstrate its ability to satisfy such deductible
or amount of such self-retained insurance.
15.7 BLANKET POLICY. Notwithstanding anything to the contrary contained
in this Article 15, Tenant's obligations to carry the insurance provided for
herein may be brought within the coverage of a so-called blanket policy or
policies of insurance carried and maintained by Tenant; PROVIDED, HOWEVER, that
the coverage afforded Landlord will not be reduced or diminished or otherwise be
different from that which would exist under a separate policy meeting all other
requirements of this Lease by reason of the use of such blanket policy of
insurance, and provided further that the requirements of this Article 15 are
otherwise satisfied. The amount of this total insurance allocated to each of the
Leased Properties, which amount shall be not less than the amounts required
pursuant to Sections 15.1 and 15.2, shall be specified either (i) in each such
"blanket" or umbrella policy or (ii) in a written statement, which Tenant shall
deliver to Landlord and Facility Mortgagee, from the insurer thereunder. A
certificate of each such "blanket" or umbrella policy shall promptly be
delivered to Landlord and Facility Mortgagee.
15.8 INSURANCE PROCEEDS. All proceeds of insurance payable by reason of
any loss or damage to the Property, or any portion thereof, and insured under
any policy of insurance required by this Article 15 shall (i) if greater than
$100,000, be paid to Landlord and held by Landlord and (ii) if less than such
amount, be paid to Tenant and held by Tenant. All such proceeds shall be held in
trust and shall be made available for reconstruction or repair, as the case may
be, of any damage to or destruction of the Property, or any portion thereof.
15.9 DISBURSEMENT OF PROCEEDS. Any proceeds held by landlord or Tenant
shall be paid out by Landlord or Tenant from time to time for the reasonable
costs of such reconstruction or repair; PROVIDED, HOWEVER, that Landlord shall
disburse proceeds subject to the following requirements:
42
(a) prior to commencement of restoration, (i) the
architects, contracts, contractors, plans and specifications for the
restoration shall have been approved by Landlord, which approval
shall not be unreasonably withheld or delayed and (ii) appropriate
waivers of mechanics' and materialmen's liens shall have been filed;
(b) Tenant shall have obtained and delivered to Landlord
copies of all necessary governmental and private approvals necessary
to complete the reconstruction or repair, including building
permits, licenses, conditional use Permits and certificates of need;
(c) at the time of any disbursement, subject to Article 14,
no mechanics' or materialmen's liens shall have been filed against
any of the Property and remain undischarged, unless a satisfactory
bond shall have been posted in accordance with the laws of the
State;
(d) disbursements shall be made from time to time in an
amount not exceeding the cost of the work completed since the last
disbursement, upon receipt of (i) satisfactory evidence of the stage
of completion, the estimated total cost of completion and
performance of the work to date in a good and workmanlike manner in
accordance with the contracts, plans and specifications, (ii)
waivers of liens, (iii) a satisfactory bring down of title insurance
and (iv) other evidence of cost and payment so that Landlord and
Facility Mortgagee can verify that the amounts disbursed from time
to time are represented by work that is completed, in place and free
and clear of mechanics' and materialmen's lien claims;
(e) each request for disbursement shall be accompanied by a
certificate of Tenant, signed by a senior member or officer of
Tenant, describing the work for which payment is requested, stating
the cost incurred in connection therewith, stating that Tenant has
not previously received payment for such work and, upon completion
of the work, also stating that the work has been fully completed and
complies with the applicable requirements of this Lease;
(f) to the extent actually held by Landlord and not a
Facility Mortgagee, (1) the proceeds shall be held in a separate
account and shall not be commingled with Landlord's other funds, and
(2) interest shall accrue on funds so held at the money market rate
of interest and such interest shall constitute part of the proceeds;
and
43
(g) such other reasonable conditions as Landlord or Facility
Mortgagee may reasonably impose, including, without limitation,
Payment by Tenant of reasonable costs of administration imposed by
or on behalf of Facility Mortgagee should the proceeds be held by
Facility Mortgagee.
15.10 EXCESS PROCEEDS, DEFICIENCY OF PROCEEDS. Any excess proceeds
of insurance remaining after the completion of the restoration or reconstruction
of the Property (or in the event neither Landlord nor Tenant is required to or
elects to repair and restore) shall be paid to Landlord and deposited in the
Capital Replacement Fund except for any portion specifically applicable to
Tenant's merchandise and inventory. All salvage resulting from any risk covered
by insurance shall belong to Landlord.
If the costs of restoration or reconstruction exceeds the amount of
proceeds received by Landlord or Tenant from insurance, Tenant shall pay for
such excess cost of restoration or reconstruction, except that Tenant may
petition Landlord for withdrawal from the Capital Replacement Fund to cover some
or all of such excess, subject to the approval of Landlord in Landlord's sole
and absolute discretion.
15.11 RECONSTRUCTION COVERED BY INSURANCE.
(a) DESTRUCTION RENDERING PROPERTY UNSUITABLE FOR ITS
PRIMARY USE. If during the term the Property is totally or partially
destroyed from a risk covered by the insurance described in Article
15 and the Property thereby is rendered Unsuitable For Its Primary
Intended Use as reasonably determined by Landlord, Tenant shall, at
its election, either (i) diligently restore the Property to
substantially the same condition as existed immediately before the
damage or destruction, or (ii) terminate the Lease as provided in
Section 21.2 and assign all of its rights to any insurance proceeds
required under this Lease to Landlord.
(b) DESTRUCTION NOT RENDERING PROPERTY UNSUITABLE FOR ITS
PRIMARY USE. If during the term, the Property is totally or
partially destroyed from a risk covered by the insurance described
in Article 15, but the Real Property is not thereby rendered
Unsuitable For Its Primary Intended Use, Tenant shall diligently
restore the Property to substantially the same condition as existed
immediately before the damage or destruction; PROVIDED, HOWEVER,
Tenant shall not be required to restore certain Tangible Personal
Property and/or any Tenant Improvements if failure to do so does not
adversely affect the amount
44
of Rent payable hereunder or the Primary Intended Use in substantially the
same manner immediately prior to such damage or destruction. Such damage
or destruction shall not terminate this Lease; PROVIDED FURTHER, HOWEVER,
if Tenant cannot within eighteen (18) months obtain all necessary
governmental approvals, including building permits, licenses, conditional
use permits and any certificates of need. after diligent efforts to do so
in order to be able to perform all required repair and restoration work
and to operate the Property for its Primary Intended Use in substantially
the same manner immediately prior to such damage or destruction, Tenant
may terminate the Lease.
15.12 RECONSTRUCTION NOT COVERED BY INSURANCE. If during the Term, the
Property is totally or materially destroyed from a risk not covered by the
insurance described in Article 15, whether or not such damage or destruction
renders the Property Unsuitable For Its Primary Intended Use, Tenant shall
restore the Property to substantially the same condition as existed immediately
before the damage or destruction. Tenant shall have the right to use proceeds
from the Capital Replacement Fund to perform such work, subject to the
conditions set forth in Section 12.4 hereof.
15.13 NO ABATEMENT OF RENT. This Lease shall remain in full force and
effect and Tenant's obligation to make rental payments and to pay all other
charges required by this Lease shall remain unabated during the period required
for repair and restoration.
15.14 WAIVER. Tenant hereby waives any statutory rights of termination
which may arise by reason of any damage or destruction of the Property which
Landlord or Tenant is obligated to restore or may restore under any of the
provisions of this lease.
15.15 DAMAGE NEAR END OF TERM. Notwithstanding any other provision to the
contrary in this Article 15, if damage to or destruction of the Property occurs
during the last twenty-four (24) months of the Lease Term, and if such damage or
destruction cannot reasonably be expected by Landlord to be fully repaired or
restored prior to the date that is twelve (12) months prior to the end of the
then-applicable Term, then either Landlord or Tenant shall have the right to
terminate the Lease on thirty (30) days' prior notice to the other by giving
notice thereof within sixty (60) days after the date of such damage or
destruction. Upon any such termination, Landlord shall be entitled to retain
all insurance proceeds, grossed up by Tenant to account for the deductible or
any self-insured retention. If Landlord shall give Tenant a notice under this
Section 15.15 that it seeks to terminate this Lease at a time when Tenant has a
remaining Extended Term, then such termination notice shall be of no effect if
Tenant shall exercise its rights to extend the Term not later than the earlier
of the
45
time required by Section 3.2 or thirty (30) days after Landlord's notice given
under this Section 15.15.
ARTICLE 16
CONDEMNATION
16.1 TOTAL TAKING. If at any time during the Term the Property is totally
and permanently taken by Condemnation, this Lease shall terminate on the Date of
Taking and Tenant shall promptly pay all outstanding rent and other charges
through the date of termination.
16.2 PARTIAL TAKING. If a portion of the Property is taken by
Condemnation, this Lease shall remain in effect if the Property is not thereby
rendered Unsuitable For Its Primary Intended Use, but if the Property is thereby
rendered Unsuitable For Its Primary Intended Use, this Lease shall terminate on
the date of Taking.
16.3 RESTORATION. If there is a partial taking of the Property and this
Lease remains in full force and effect pursuant to Section 16.2, Landlord at its
cost shall accomplish all necessary restoration up to but not exceeding the
amount of the Award payable to Landlord, as provided herein. If Tenant receives
an Award under Section 16.4, Tenant shall repair or restore any Tenant
Improvements up to but not exceeding the amount of the Award payable to Tenant
therefor.
16.4 AWARD-DISTRIBUTION. The entire Award shall belong to and be paid to
Landlord, except that, subject to the rights of the Facility Mortgagee, Tenant
shall be entitled to receive from the Award, if and to the extent such Award
specifically includes such items, a sum attributable to the value, if any, of:
(i) the loss of Tenant's business during the remaining term, (ii) any Tenant
Improvements and (iii) the leasehold interest of Tenant under this Lease.
16.5 TEMPORARY TAKING. The taking of the Property, or any part thereof,
by military or other public authority shall constitute a taking by Condemnation
only when the use and occupancy by the taking authority has continued for longer
than six (6) months. During any such six (6) month period, which shall be a
temporary taking, all the provisions of this Lease shall remain in full force
and effect with no abatement of rent payable by Tenant hereunder. In the event
of any such temporary taking, the entire amount of any such Award made for such
temporary taking allocable to the Lease Term, whether paid by way of damages,
rent or otherwise shall be paid to Tenant.
ARTICLE 17
EVENTS OF DEFAULT
46
17.1 EVENTS OF DEFAULT. If any one or more of the following events
(individually, an "Event of Default") shall occur:
(a) if Tenant shall fail to make payment of the Rent payable
by Tenant under this Lease when the same becomes due and payable and
such failure is not cured by Tenant within a period of ten (10) days
after receipt by Tenant of notice thereof from Landlord; PROVIDED,
HOWEVER, Tenant is only entitled to three (3) such notices per
twelve (12) month period and that such notice shall be in lieu of
and not in addition to any notice required under applicable law;
(b) if Tenant shall fail to observe or perform any material
term, covenant or condition of this Lease and such failure is not
cured by Tenant within a period of thirty (30) days after receipt by
Tenant of notice thereof from landlord, unless such failure cannot
with due diligence be cured within a period of thirty (30) days, in
which case such failure shall not be deemed to continue if Tenant
proceeds promptly and with due diligence to cure the failure and
diligently completes the curing thereof within one hundred twenty
(120) days of receipt of notice from Landlord of the default;
PROVIDED, HOWEVER, that such notice shall be in lieu of and not in
addition to any notice required under applicable law; PROVIDED
FURTHER, HOWEVER, that the cure period shall not extend beyond
thirty (30) days as otherwise provided by this Section 17.1(b) if
the facts or circumstances giving rise to the default are creating a
further harm to Landlord or the Property and Landlord makes a good
faith determination that Tenant is not undertaking remedial steps
that Landlord would cause to be taken if this lease were then to
terminate;
(c) if Tenant shall:
(i) admit in writing its inability to pay its debts as
they become due,
(ii) file a petition in bankruptcy or a petition to take
advantage of any insolvency act,
(iii) make an assignment for the benefit of its
creditors,
(iv) be unable to pay its debts as they mature,
47
(v) consent to the appointment of a receiver of itself
or of the whole or any substantial part of its property, or
(vi) file a petition or answer seeking reorganization
or arrangement under the Federal bankruptcy laws or any other
applicable law or statute of the United States of America or
any state thereof;
(d) if Tenant shall, on a petition in bankruptcy filed against
it, be adjudicated as bankrupt or a court of competent jurisdiction
shall enter an order or decree appointing, without the consent of
Tenant, a receiver of Tenant or of the whole or substantially all of
its property, or approving a petition filed against it seeking
reorganization or arrangement of Tenant under the federal bankruptcy
laws or any other applicable law or statute of the United States of
America or any state thereof, and such judgment, order or decree
shall not be vacated or set aside or stayed within sixty (60) days
from the date of the entry thereof;
(e) if Tenant shall be liquidated or dissolved, or shall
begin proceedings toward such liquidation or dissolution;
(f) if the estate or interest of Tenant in the property or
any part thereof shall be levied upon or attached in any proceeding
and the same shall not be vacated or discharged within the later of
ninety (90) days after commencement thereof or thirty (30) days
after receipt by Tenant of notice thereof from Landlord (unless
Tenant shall be contesting such lien or attachment in accordance
with Article 14); PROVIDED, HOWEVER, that such notice shall be in
lieu of and not in addition to any notice required under applicable
law;
(g) if, except as a result of damage, destruction or a
partial or complete Condemnation or other Unavoidable delays, Tenant
voluntarily ceases operations on the property;
(h) any representation or warranty made by Tenant herein or
in any certificate, demand or request made pursuant hereto proves to
be incorrect, now or hereafter, in any material respect; or
(i) an "Event of Default" (as defined in such lease)by
Tenant or any Affiliate of Tenant in any other lease by and between
such party and Landlord or any
48
Affiliate of Landlord, or an "Event of Default" under the Pledge
Agreement;
THEN, Tenant shall be declared to have breached this lease. Landlord may
terminate this Lease by giving Tenant not less than ten (10) days' notice (or no
notice for clauses (c), (d), (e), (f) and (g)) of such termination and upon the
expiration of the time fixed in such notice, the Term shall terminate and all
rights of Tenant under this Lease shall cease. Landlord shall have all rights
at law and in equity available to Landlord as a result of Tenant's breach of
this Lease.
17.2 PAYMENT OF COSTS. Tenant shall, to the extent permitted by law, pay
as Additional Charges all costs and expenses incurred by or on behalf of
Landlord, including reasonable attorneys' fees and expenses, as a result of any
Event of Default hereunder.
17.3 CERTAIN REMEDIES. If an Event of Default shall have occurred and be
continuing, whether or not this Lease has been terminated pursuant to Section
17.1, Tenant shall, to the extent permitted by law, if required by Landlord to
do so, immediately surrender to Landlord the Property pursuant to the provisions
of Section 17.1 and quit the same and Landlord may enter upon and repossess the
Property by reasonable force, summary proceedings, ejectment or otherwise, and
may remove Tenant and all other Persons and any and all Tenant's Personal
Property from the Property subject to any requirement of law.
17.4 DAMAGES. None of the following events shall relieve Tenant of its
liability and obligations hereunder, all of which shall survive any such
termination, repossession or reletting: (a) the termination of this Lease
pursuant to Section 17.1, (b) the repossession of the Property, (c) the failure
of landlord, notwithstanding reasonable good faith efforts, to relet the
Property, (d) the reletting of all or any portion thereof, nor (e) the failure
of Landlord to collect or receive any rentals due upon any such reletting. In
the event of any such termination, Tenant shall forthwith pay to Landlord all
Rent due and payable with respect to the Property to, and including, the date of
such termination. Thereafter, Tenant shall forthwith pay to Landlord, at
Landlord's option, as and for liquidated and agreed current damages for Tenant's
default, and not as a penalty, either:
(a) the sum of:
(i) the worth at the time of award of the unpaid Rent which
had been earned at the time of termination,
(ii) the worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the
time of award exceeds the
49
amount of such unpaid Rent that Tenant proves could have been
reasonably avoided,
(iii) the worth at the time of award of the amount by which
the unpaid Rent for the balance of the Term after the time of award
exceeds the amount of such unpaid Rent that Tenant proves could be
reasonably avoided, and
(iv) any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform
its obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom.
In making the above determinations, the "worth at the time of the award"
in subsections (i) and (iii) shall be determined by the court having
jurisdiction thereof including interest at the Overdue Rate and the "worth at
the time of the award" in subsection (iii) shall be determined by the court
having jurisdiction thereof using a discount rate equal to the discount rate of
the Federal Reserve Bank of San Francisco at the time of the award plus one
percent (1%) and the Percentage Rent shall be deemed to be the same as for the
then-current Fiscal Year or, if not determinable, the immediately preceding
Fiscal Year, for the remainder of the Term, or such other amount as either party
shall prove reasonably could have been earned during the remainder of the Term
or any portion thereof; or
(b) without termination of Tenant's right to possession of
the Property, each installment of said Rent another sums payable by
Tenant to Landlord under the Lease as the same becomes due and
payable, which Rent and other sums shall bear interest at the
Overdue Rate from the date when due until paid, and Landlord may
enforce, by action or otherwise, any other term or covenant of this
Lease.
17.5 ADDITIONAL REMEDIES. Landlord has all other remedies that may be
available under applicable law.
17.6 APPOINTMENT OF RECEIVER. Upon the occurrence of an Event of Default,
and upon filing of a suit or other commencement of judicial proceedings to
enforce the rights of Landlord hereunder, Landlord shall be entitled, as a
matter or right, to the appointment of a receiver or receivers acceptable to
Landlord of the Property and of the revenues, earnings, income, products and
profits thereof, pending such proceedings, with such powers as the court making
such appointment shall confer.
17.7 WAIVER. If this Lease is terminated pursuant to Section 17.1, Tenant
waives, to the extent permitted by applicable law (a)
50
any right of redemption, re-entry or repossession and (b) any right to a trial
by jury.
17.8 APPLICATION OF FUNDS. Any payments received by Landlord under any of
the provisions of this Lease during the existence or continuance of any Event of
Default (and such payment is made to Landlord rather than Tenant due to the
existence of an Event of Default) shall be applied to Tenant's obligations in
the order which Landlord may determine or as maybe prescribed by the laws of the
State.
17.9 IMPOUNDS. Landlord shall have the right during the continuance of
an Event of Default to require Tenant to pay to Landlord an additional
monthly sum (each an "Impound Payment") sufficient to pay the Impound Charges
(as hereinafter defined) as they become due. As used herein, "Impound
Charges" shall mean real estate taxes on the Property or payments in lieu
thereof and premiums on any insurance required by this Lease. Landlord shall
determine the amount of the Impound Charges and of each Impound Payment. The
Impound Payments shall be held in a separate account and shall not be
commingled with other funds of Landlord and interest thereon shall be held
for the account of Tenant. Landlord shall apply the Impound Payments to the
payment of the Impound Charges in such order or priority as Landlord shall
determine or as required by law. If at any time the Impound payments
theretofore paid to Landlord shall be insufficient for the payment of the
Impound Charges, Tenant, within ten (10) days after Landlord's demand
therefor, shall pay the amount of the deficiency to Landlord.
ARTICLE 18
LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT
If Tenant shall fail to make any payment or to perform any act required to
be made or performed under this Lease, and to cure the same within the relevant
time periods provided in Article 17, Landlord, after notice to and demand upon
Tenant, and without waiving or releasing any obligation or default, may (but
shall be under no obligation to) at any time thereafter make such payment or
perform such act for the account and at the expense of Tenant. Landlord may, to
the extent permitted by law, enter upon the Property for such purpose and take
all such action thereon as, in Landlord's opinion, may be necessary or
appropriate therefor. No such entry shall be deemed an eviction of Tenant. All
sums so paid by Landlord and all costs and expenses(including reasonable
attorneys' fees and expenses, to the extent permitted by law) so incurred,
together with a late charge thereon at the Overdue Rate from the date on which
such sums or expenses are paid or incurred by Landlord, shall be paid by Tenant
to Landlord on demand. The obligations of Tenant and rights of Landlord
contained in this
51
Article 18 shall survive the expiration or earlier termination of this Lease.
ARTICLE 19
LEGAL REQUIREMENTS
Subject to Article 14 regarding permitted contests, Tenant, at its
expense, shall promptly (a) comply with all Legal requirements and Insurance
Requirements in respect of the use, operation, maintenance, repair and
restoration of the Property, whether or not compliance therewith shall require
structural changes in any of the Improvements or interfere with the use and
enjoyment of the Property; and (b) procure, maintain and comply with all
licenses and other authorizations required for any use of the Property then
being made, and for the proper erection, installation, operation and maintenance
of the Property or any part thereof.
ARTICLE 20
HOLDING OVER
If Tenant shall for any reason remain in possession of the Property after
the expiration of the Term or earlier termination of the Term hereof, such
possession shall be deemed to be a Tenant at sufferance during which time Tenant
shall pay as rental each month, 125% of the aggregate of (i) the aggregate base
Rent and monthly portion of the Percentage Rent payable with respect to that
month in the last Fiscal Year; (ii) all additional Charges accruing during the
month; and (iii) all other sums, if any, payable by Tenant pursuant to the
provisions of this Lease with respect to the Property. During such period of
month-to-month tenancy, Tenant shall be obligated to perform and observe all of
the terms, covenants and conditions of this Lease, but shall have no rights
hereunder other than the right, to the extent given by law to month-to-month
tenancies, to continue its occupancy and use of the Property. Nothing contained
herein shall constitute the consent, express or implied, of Landlord to the
holding over of Tenant after the expiration or earlier termination of this
Lease.
ARTICLE 21
RISK OF LOSS
During the Lease Term, the risk of loss or of decrease in the enjoyment
and beneficial use of the Property as a consequence of the damage or destruction
thereof by fire, flood, the elements, casualties, thefts, riots, wars or
otherwise, or inconsequence of foreclosures, attachments, levies or
executions(other than by Landlord and those claiming from, through or under
Landlord) is assumed by Tenant. In the absence of gross negligence, willful
misconduct or breach of this Lease by Landlord pursuant to Section 28.2,
Landlord shall in no event be answerable or accountable
52
therefor nor shall any of the events mentioned in this Article 21 entitle Tenant
to any abatement of Rent.
ARTICLE 22
INDEMNIFICATION
22.1 TENANT'S INDEMNIFICATION OF LANDLORD. Except as otherwise
provided in Section 10.7 and notwithstanding the existence of any insurance
provided for in Article 15, and without regard to the policy limits of any
such insurance, Tenant will protect, indemnify, save harmless and defend
Landlord, the Company and Affiliates of the Company from and against all
liabilities, obligations, claims, actual or consequential damages, penalties,
causes of action, costs and expenses (including reasonable attorneys' fees
and expenses), to the extent permitted by law, imposed upon or incurred by or
asserted against Landlord, the Company or Affiliates of the Company by reason
of:
(a) any accident, injury to or death of persons or loss of or
damage to property occurring on or about the Property or adjoining
property, including, but not limited to, any accident, injury to or death
of Person or loss of or damage to property resulting from golf balls, golf
clubs, golf shoes, lawn mowers or other equipment, pesticides, fertilizers
or other substances, golf carts, tractors or other motorized vehicles
present on or adjacent to the Property;
(b) any use, misuse, non-use, condition, maintenance or repair of
the Property;
(c) any Impositions (which are the obligations of Tenant to pay
pursuant to the applicable provisions of this Lease);
(d) any failure on the part of Tenant to perform or comply with
any of the terms of this Lease;
(e) any so-called "dram shop" liability associated with the sale
and/or consumption of alcohol at the Property;
(f) the non-performance of any of the terms and provisions of any
and all existing and future subleases of the Property to be performed by
the landlord (Tenant) thereunder;
(g) the negligence or alleged negligence of Landlord with respect
to the Property; or
(h) any liability Landlord may incur or suffer as a result of any
permitted contest by Tenant pursuant to Article 14.
53
22.2 LANDLORD'S INDEMNIFICATION OF TENANT. Landlord shall protect,
indemnify, save harmless and defend Tenant from and against all liabilities,
obligations, claims, actual or consequential damages, penalties, causes of
action, costs and expenses (including reasonable attorneys' fees) imposed upon
or incurred by or asserted against Tenant as a result of Landlord's active,
gross negligence or willful misconduct.
22.3 MECHANICS OF INDEMNIFICATION. As soon as reasonably practicable
after receipt by the indemnified party of notice of any liability or claim
incurred by or asserted against the indemnified party that is subject to
indemnification under this Article 22, the indemnified party shall give notice
thereof to the indemnifying party. The indemnified party may at its option
demand indemnity under this Article 22 as soon as a claim has been threatened by
a third party, regardless of whether an actual loss has been suffered, so long
as the indemnified party shall in good faith determine that such claim is not
frivolous and that the indemnified party may be liable for, or otherwise incur,
a loss as a result thereof and shall give notice of such determination to the
indemnifying party. The indemnified party shall permit the indemnifying party,
at its option and expense, to assume the defense of any such claim by counsel
selected by the indemnifying party and reasonably satisfactory to the
indemnified party, and to settle or otherwise dispose of the same; PROVIDED,
HOWEVER, that the indemnified party may at all times participate in such defense
at its expense, and PROVIDED FURTHER, HOWEVER, that the indemnifying party shall
not, in defense of any such claim, except with the prior written consent of the
indemnified party, consent to the entry of any judgment or to enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff in question to the indemnified party and its
affiliates a release of all liabilities in respect of such claims, or that does
not result only in the payment of money damages by the indemnifying party. If
the indemnifying party shall fail to undertake such defense within thirty (30)
days after such notice, or within such shorter time as may be reasonable under
the circumstances, then the indemnified party shall have the right to undertake
the defense, compromise or settlement of such liability or claim on behalf of
and for the account of the indemnifying party.
22.4 SURVIVAL OF INDEMNIFICATION OBLIGATIONS; AVAILABLE INSURANCE
PROCEEDS. Tenant's or Landlord's liability for a breach of the provisions of
this Article 22 arising during the term hereof shall survive any termination of
this Lease. Notwithstanding anything herein to the contrary, each party agrees
to look first to the available proceeds from any insurance it carries in
connection with the Property prior to seeking indemnification or otherwise
seeking to recover any amounts to compensate a party for its
54
damages and then to seek indemnification only to the extent of any loss not
covered by their available insurance proceeds.
ARTICLE 23
SUBLETTING AND ASSIGNMENT
23.1 PROHIBITION AGAINST ASSIGNMENT. Tenant shall not, without the prior
written consent of Landlord, which consent Landlord may withhold in its sole
discretion, assign, mortgage, pledge, hypothecate, encumber or otherwise
transfer (except to an Affiliate of Tenant or a Permitted Assignee) the Lease or
any interest therein, all or any part of the Property, whether voluntarily,
involuntarily or by operation of law. For purposes of this Article 23, a Change
in Control of the Tenant shall constitute an assignment of this Lease.
23.2 SUBLEASES.
(a) PERMITTED SUBLEASES. Tenant shall not, without the prior written
consent of Landlord, which consent Landlord may withhold in its sole discretion,
further sublease or license portions of the Property to third parties, including
concessionaires or licensees. Without limiting the foregoing, Tenant's proposed
sublease of any of the following transfers shall require Landlord's prior
written consent, which consent Landlord may withhold in its sole discretion:
(i) sublease or license to operate golf courses;
(ii) sublease or license to operate golf professionals' shops;
(iii) sublease or license to operate golf driving ranges;
(iv) sublease or license to provide golf lessons by other than a resident
professional;
(v) management agreement to operate food and beverage and bar services
at the Property by and between Pre Club, Inc., the predecessor in interest to
Transferor, and Tenant;
(vi) sublease or license to operate spa or health clubs; and
(vii) sublease or license to operate any other portions (but not the
entirety) of the Property customarily associated with or incidental to the
operation of the golf course.
(b) TERMS OF SUBLEASE. Each sublease with respect to the Property shall
be subject and subordinate to the provisions of this Lease. No sublease made as
permitted by this Section 23.2 shall affect or reduce any of the obligations of
Tenant hereunder, and
55
all such obligations shall continue in full force and effect as if no sublease
had been made. No sublease shall impose any additional obligations on Landlord
under this Lease.
(c) COPIES. Tenant shall, not less than sixty (60) days prior to any
proposed assignment or sublease, deliver to Landlord written notice of its
intent to assign or sublease, which notice shall identify the intended assignee
or sublessee by name and address, shall specify the effective date of the
intended assignment or sublease, and shall be accompanied by an exact copy of
the proposed assignment or sublease. Tenant shall provide Landlord with such
additional information or documents reasonably requested by Landlord with
respect to the proposed transaction and the proposed assignee or subtenant, and
an opportunity to meet and interview the proposed assignee or subtenant, if
requested.
(d) ASSIGNMENT OF RIGHTS IN SUBLEASES. As security for performance of
its obligations under this Lease, Tenant hereby grants, conveys and assigns to
Landlord all right, title and interest of Tenant in and to all subleases now in
existence or hereinafter entered into for any or all of the Property, and all
extensions, modifications and renewals thereof and all rents, issues and profits
therefrom. Landlord hereby grants to Tenant a license to collect and enjoy all
rents and other sums of money payable under any sublease of any of the Property;
provided, however, that Landlord shall have the absolute right at any time after
the occurrence and continuance of an Event of Default upon notice to Tenant and
any subtenants to revoke said license and to collect such rents and sums of
money and to retain the same. Tenant shall not (i) consent to, cause or allow
any material modification or alteration of any of the terms, conditions or
covenants of any of the subleases or the termination thereof, without the prior
written approval of Landlord nor (ii) accept any rents (other than customary
security deposits) more than ninety (90) days in advance of the accrual thereof
nor permit anything to be done, the doing of which, nor omit or refrain from
doing anything, the omission of which, will or could be a breach of or default
in the terms of any of the subleases.
(e) LICENSES ETC. For purposes of this Section 23.2, subleases shall be
deemed to include any licenses, concession arrangements, management contracts
(except to an Affiliate of the Lessee) or other arrangements relating to the
possession or use of all or any part of the Property.
23.3 TRANSFERS. No assignment or sublease shall in any way impair the
continuing primary liability of Tenant hereunder, as a principal and not as a
surety or guarantor, and no consent to any assignment or sublease in a
particular instance shall be deemed to be a waiver of the prohibition set forth
in section 23.1. Any assignment shall be solely of Tenant's entire interest in
this
56
Lease. Any assignment or other transfer of all or any portion of Tenant's
interest in the Lease in contravention of the terms of this Lease shall be
voidable at Landlord's option. Anything in this Lease to the contrary
notwithstanding, Tenant shall not sublet all or any portion of the Property or
enter into any other agreement which has the effect of reducing the Percentage
Rent or FB&M Rent payable to Landlord hereunder.
23.4 REIT LIMITATIONS. Anything contained in this Lease to the contrary
notwithstanding, Tenant shall not (i) sublet or assign or enter into other
arrangements such that the amounts to be paid by the sublessee or assignee
thereunder would be based, in whole or in part, on the income or profits derived
by the business activities of the sublessee or assignee; (ii) sublet or assign
the Property or this Lease to any person that Landlord owns, directly or
indirectly (by applying constructive ownership rules set forth in Section
856(d)(5) of the Code), a 10% or greater interest; or (iii) sublet or assign the
Property or this Lease in any other manner or otherwise derive any income which
could cause any portion of the amounts received by Landlord pursuant to this
Lease or any sublease to fail to qualify as "rents from real property" within
the meaning of Section 856(d) of the Code, or which could cause any other income
received by Landlord to fail to qualify as income described in Section 856(c)(2)
of the Code. The requirements of this Section 23.4 shall likewise apply to any
further subleasing by any subtenant.
23.5 RIGHT OF FIRST OFFER OF LANDLORD TO ACQUIRE LEASEHOLD. In addition
to Landlord's rights in Section 23.1, Landlord or its designee shall have, for a
period of sixty (60) days following receipt of the written notice of Tenant's
intent to assign its interest in the Lease to a third party unaffiliated with
Tenant (and in which management of the Tenant shall have no continuing
management or ownership interest), the right to elect to purchase the leasehold
interest on the terms and conditions at which Tenant proposes to sell or assign
its interest. If landlord or its designee elects not to purchase such interest
of Tenant, then Tenant shall be free to sell its interest to a third party,
subject to Landlord's prior written consent as provided in Section 23.1.
However, if (i) the price at which Tenant intends to sell its interest is
reduced by five percent (5%) or more, or (ii) the assignment to the third party
is not completed within one hundred eighty (180) days of Landlord's receipt of
written notice of Tenant's intention to assign its interest in the Lease, then
Tenant shall again offer Landlord the right to acquire its interest; provided,
however, that in the case of a change in price, Landlord shall have only fifteen
(15) days to accept such revised offer.
23.6 BANKRUPTCY LIMITATIONS.
57
(a) Tenant acknowledges that this Lease is a lease of nonresidential
real property and therefore agrees that Tenant, as the debtor in possession, or
the trustee for Tenant(collectively, the "Trustee") in any proceeding under
Title 11 of the United States Bankruptcy Code relating to Bankruptcy, as amended
(the "Bankruptcy Code"), shall not seek or request any extension of time to
assume or reject this Lease or to perform any obligations of this Lease which
arise from or after the order of relief.
(b) If the Trustee proposes to assume or to assign this Lease or sublet
the Property (or any portion thereof) to any Person which shall have made a bona
fide offer to accept an assignment of this Lease or a subletting on terms
acceptable to the Trustee, the Trustee shall give Landlord, and lessors and
mortgagees of Landlord of which Tenant has notice, written notice setting forth
the name and address of such person and the terms and conditions of such offer,
no later than twenty (20) days after receipt of such offer, but in any event no
later than ten(10) days prior to the date on which the Trustee makes application
to the bankruptcy court for authority and approval to enter into such assumption
and assignment or subletting. Landlord shall have the prior right and option,
to be exercised by written notice to the Trustee given at any time prior to the
effective date of such proposed assignment or subletting, to receive-and
assignment of this Lease or subletting of the property to Landlord or Landlord's
designee upon the same terms and conditions and for the same consideration, if
any, as the bona fide offer made by such person, less any brokerage commissions
which may be payable out of the consideration to be paid by such person for the
assignment or subletting of this Lease.
(c) The Trustee shall have the right to assume Tenant's rights and
obligations under this Lease only if the Trustee: (a) promptly cures any Event
of Default then existing or provides adequate assurance that the Trustee will
promptly compensate Landlord for any actual pecuniary loss incurred by Landlord
as a result of Tenant's default under this Lease; and(c) provides adequate
assurance of future performance under this Lease. Adequate assurance of future
performance by the proposed assignee shall include, as a minimum, that: (i) any
proposed assignee of this Lease shall provide to Landlord an audited financial
statement, dated no later than six (6) months prior to the effective date of
such proposed assignment or sublease, with no material change therein as of the
effective date, which financial statement shall show the proposed assignee to
have a net worth reasonably satisfactory to Landlord or, in the alternative, the
proposed assignee shall provide a guarantor of such proposed assignee's
obligations under this Lease, which guarantor shall provide an audited financial
statement meeting the requirements of (i) above and shall execute and deliver to
Landlord a guaranty agreement in form and substance acceptable to Landlord; and
(ii) any proposed assignee shall grant to Landlord a security interest in favor
of
58
Landlord in all furniture, fixtures, and other personal property to be used by
such proposed assignee in the Property. All payments required of Tenant under
this Lease, whether or not expressly denominated as such in this Lease, shall
constitute rent for the purposes of Title 11 of the Bankruptcy Code.
(d) The parties agree that for the purposes of the Bankruptcy code
relating to (a) the obligation of the Trustee to provide adequate assurance that
the Trustee will "promptly" cure defaults and compensate Landlord for actual
pecuniary loss, the word "promptly" shall mean that cure of defaults and
compensation will occur no later than sixty (60) days following the filing of
any motion or application to assume this Lease; and (b) the obligation of the
Trustee to compensate or to provide adequate assurance that the Trustee will
promptly compensate Landlord for"actual pecuniary loss." The term "actual
pecuniary loss" shall mean, in addition to any other provisions contained herein
relating to Landlord's damages upon default, obligations of Tenant to pay money
under this Lease and all attorneys' fees and related costs of Landlord incurred
in connection with any default of Tenant in connection with Tenant's bankruptcy
proceedings).
(e) Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed, without further act or deed,
to have assumed all of the obligations arising under this Lease and each of the
conditions and provisions hereof on and after the date of such assignment. Any
such assignee shall, upon the request of Landlord, forthwith execute and deliver
to Landlord an instrument, in form and substance acceptable to Landlord,
confirming such assumption.
23.7 MANAGEMENT AGREEMENT. Tenant shall not enter into any management
agreement that provides for the management and operation of the entire Property
by an unaffiliated third party without the prior written consent of Landlord.
ARTICLE 24
OFFICER'S CERTIFICATES AND OTHER STATEMENTS
24.1 OFFICER'S CERTIFICATES. At any time, and from time to time upon
Tenant's receipt of not less than ten (10) days' prior written request by
Landlord, Tenant will furnish to Landlord an Officer's Certificate certifying
that:
(a) this Lease is unmodified and in full force and effect (or that this
Lease is in full force and effect as modified and setting forth the
modifications);
(b) the dates to which the Rent has been paid;
59
(c) whether or not to the best knowledge of Tenant, Landlord is in
default in the performance of any covenant, agreement or condition contained in
this Lease and, if so, specifying each such default of which Tenant may have
knowledge;
(d) that, except as otherwise specified, there are no proceedings
pending or, to the knowledge of the signatory, threatened, against Tenant before
or by any court or administrative agency which, if adversely decided, would
materially and adversely affect the financial condition and operations of
Tenant; and
(e) responding to such other questions or statements of fact as Landlord
shall reasonably request.
Tenant's failure to deliver such Officer's Certificate within such time
shall constitute an acknowledgment by Tenant that this Lease is unmodified and
in full force and effect except as may be represented to the contrary by
Landlord, Landlord is not in default in the performance of any covenant,
agreement or condition contained in this Lease and the other matters set forth
in such request, if any, are true and correct. Any such Officer's Certificate
furnished pursuant to this Section 24.1 may be relied upon by Landlord and any
prospective lender or purchaser.
24.2 ENVIRONMENTAL STATEMENTS. Immediately upon Tenant's learning, or
having reasonable cause to believe, that any Hazardous Material in a quantity
sufficient to require remediation or reporting under applicable law is located
in, on or under the Property or any adjacent property, Tenant shall notify
Landlord in writing of (a) the existence of any such Hazardous Material; (b) any
enforcement, cleanup, removal, or other governmental or regulatory action
instituted, completed or threatened; (c) any claim made or threatened by any
Person against Tenant or the Property relating to damage, contribution, cost
recovery, compensation, loss, or injury resulting from or claimed to result from
any Hazardous Material; and (d) any reports made to any federal, state or local
environmental agency arising out of or in connection with any Hazardous Material
in or removed from the Property, including any complaints, notices, warnings or
asserted violations in connection therewith.
ARTICLE 25
LANDLORD MORTGAGES
25.1 LANDLORD MAY GRANT LIENS. Subject to Section 25.2, without the
consent of Tenant, Landlord may, from time to time, directly or indirectly,
create or otherwise cause to exist any Landlord's Encumbrance upon the Property,
or any portion thereof or interest therein, whether to secure any borrowing or
other means of financing or refinancing. This Lease is and at all times shall be
subject and subordinate to any ground or underlying leases,
60
mortgages, trust deeds or like encumbrances, which may now or hereafter affect
the Property and to all renewals, modifications, consolidations, replacements
and extensions of any such lease, mortgage, trust deed or like encumbrance. This
clause shall be self-operative and no further instrument of subordination shall
be required by any ground or underlying lessor or by any mortgagee or
beneficiary, affecting any lease or the Property. In confirmation of such
subordination, Tenant shall execute promptly any certificate that landlord may
request for such purposes.
25.2 TENANT'S NON-DISTURBANCE RIGHTS. So long as Tenant shall pay all
Rent as the same becomes due and shall fully comply with all of the terms of
this Lease and fully perform its obligations hereunder, none of Tenant's rights
under this Lease shall be disturbed by the holder of any Landlord's Encumbrance
which is created or otherwise comes into existence after the Commencement Date.
Landlord and Tenant agree to execute subordination, non-disturbance and
attornment agreements, estoppel agreements, and other similar documents
requested by mortgagees of Landlord or Tenant, which are in form and content
reasonably acceptable to Landlord and Tenant.
25.3 FACILITY MORTGAGE PROTECTION. Tenant agrees that the holder of any
Landlord Encumbrance shall have no duty, liability or obligation to perform any
of the obligations of Landlord under this Lease, but that in the event of
Landlord's default with respect to any such obligation, Tenant will give any
such holder whose name and address have been furnished Tenant in writing for
such purpose notice of Landlord's default and allow such holder thirty (30) days
following receipt of such notice for the cure of said default before invoking
any remedies Tenant may have by reason thereof.
ARTICLE 26
SALE OF FEE INTEREST
26.1 RIGHT OF FIRST OFFER TO PURCHASE. If Landlord intends to sell the
Property during the Lease Term, and provided no Event of Default then exists,
Tenant shall have a right of first offer to purchase the Property ("Tenant's
Right of First Offer to Purchase") on the terms and conditions at which Landlord
proposes to sell the Property to a third party. Landlord shall give Tenant
written notice of its intent to sell and shall indicate the terms and conditions
(including the sale price) upon which Landlord intends to sell the Property to a
third party. Tenant shall thereafter have sixty (60) days to elect in writing
to purchase the Property and execute a Purchase and Sale Agreement with respect
thereto and shall have an additional fifty(50) days to close on the acquisition
of the Property on the terms and conditions set forth in the notice provided by
Landlord to Tenant; provided that prior to the execution of a binding purchase
and sale agreement, Landlord shall retain the right to elect not to sell the
Property. If Tenant does not elect to purchase the Property, then Landlord shall
be free to
61
sell the property to a third party. However, if the price at which Landlord
intends to sell the Property to a third party is less than 95% of the price set
forth in the notice provided by Landlord to Tenant, then Landlord shall again
offer Tenant the right to acquire the Property upon the same terms and
conditions, provided that Tenant shall have only thirty (30) days thereafter to
complete the acquisition at such price, terms and conditions.
26.2 CONVEYANCE BY LANDLORD. If Landlord shall convey the Property in
accordance with the terms hereof other than as security for a debt, Landlord
shall, upon the written assumption by the transferee of the Property of all
liabilities and obligations of the Lease be released from all future liabilities
and obligations under this Lease arising or accruing from and after the date of
such conveyance or other transfer as to the Property. All such future
liabilities and obligations shall thereupon be binding upon the new owner.
ARTICLE 27
ARBITRATION
27.1 ARBITRATION. In each case specified in this Lease in which it shall
become necessary to resort to arbitration, such arbitration shall be determined
as provided in this Section 27.1. The party desiring such arbitration shall give
notice to that effect to the other party, and an arbitrator shall be selected by
mutual agreement of the parties, or if they cannot agree within thirty (30) days
of such notice, by appointment made by the American Arbitration Association
("AAA") from among the members of its panels who are qualified and who have
experience in resolving matters of a nature similar to the matter to be resolved
by arbitration.
27.2 ARBITRATION PROCEDURES. In any arbitration commenced pursuant to
Section 27.1 a single arbitrator shall be designated and shall resolve the
dispute. The arbitrator's decision shall be binding on all parties and shall not
be subject to further review or appeal except as otherwise allowed by applicable
law. Upon the failure of either party (the "non-complying party") to comply with
his decision, the arbitrator shall be empowered, at the request of the other
party, to order such compliance by the non-complying party and to supervise or
arrange for the supervision of the non-complying party. To the maximum extent
practicable, the arbitrator and the parties, and the AAA if applicable, shall
take any action necessary to insure that the arbitration shall be concluded
within ninety (90) days of the filing of such dispute. The fees and expenses of
the arbitrator shall be shared equally by Landlord and Tenant. Unless otherwise
agreed in writing by the parties or required by the arbitrator or AAA, if
applicable, arbitration proceedings hereunder shall be conducted in the State.
Notwithstanding formal rules of evidence, each party may submit
62
such evidence as each party deems appropriate to support its position and the
arbitrator shall have access to and right to examine all books and records of
Landlord and Tenant regarding the Property during the arbitration.
ARTICLE 28
MISCELLANEOUS
28.1 LANDLORD'S RIGHT TO INSPECT. Tenant shall permit Landlord and its
authorized representatives to inspect the Property during usual business hours
subject to any security, health, safety or confidentiality requirements of
Tenant or any governmental agency or insurance requirement relating to the
Property, or imposed by law or applicable regulations. Landlord shall indemnify
Tenant for all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed-on, incurred by, or asserted against Tenant by
reason of Landlord's inspection pursuant to this Section 28.1.
28.2 BREACH BY LANDLORD. It shall be a breach of this Lease if Landlord
shall fail to observe or perform any material term, covenant or condition of
this Lease on its part to be performed and such failure shall continue for a
period of thirty (30) days after notice thereof from Tenant, unless such failure
cannot with due diligence be cured within a period of thirty (30) days, in which
case such failure shall not be deemed to continue if Landlord, within said
thirty (30)-day period, proceeds promptly and with due diligence to cure the
failure and diligently completes the curing thereof. The time within which
Landlord shall be obligated to cure any such failure shall also be subject to
extension of time due to the occurrence of any Unavoidable Delay. In no event
shall any breach by Landlord permit Tenant to terminate this Lease or permit
Tenant to offset any Rent due and owing hereunder or otherwise excuse Tenant
from any of its obligations hereunder.
28.3 COMPETITION BETWEEN LANDLORD AND TENANT. Landlord and Tenant agree
that neither party shall be restricted as to other relationships and
competition. Affiliates of Tenant shall be allowed to own, lease and/or manage
other golf courses that are not affiliated with Landlord, provided that such
other ownership, leasing or management arrangements are disclosed to Landlord in
writing. Landlord may acquire or own golf courses that may be geographically
proximate to one or more golf courses that Tenant or Affiliates of Tenant may
own, manage or lease.
28.4 NO WAIVER. No failure by Landlord or Tenant to insist upon the
strict performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no acceptance of full or partial payment
of Rent during the continuance of any such breach, shall constitute a waiver of
any
63
such breach or of any such term. To the extent permitted by law, no waiver of
any breach shall affect or alter this Lease, which shall continue in full force
and effect with respect to any other then existing or subsequent breach.
28.5 REMEDIES CUMULATIVE. To the extent permitted by law, each legal,
equitable or contractual rights, power and remedy of Landlord or Tenant now or
hereafter provided either in this Lease or by statute or otherwise shall be
cumulative and concurrent and shall be in addition to every other right, power
and remedy. The exercise or beginning of the exercise by Landlord or Tenant of
any one or more of such rights, powers and remedies shall not preclude the
simultaneous or subsequent exercise by Landlord or Tenant of any or all of such
other rights, powers and remedies.
28.6 ACCEPTANCE OF SURRENDER. No surrender to Landlord of this Lease or
of the Property or any part thereof, or of any interest therein, shall be valid
or effective unless agreed to and accepted in writing by Landlord and no act by
Landlord or any representative or agent of Landlord, other than such a written
acceptance by Landlord, shall constitute an acceptance of any such surrender.
28.7 NO MERGER OF TITLE. There shall be no merger of this Lease or of the
leasehold estate created hereby by reason of the fact that the same Person may
acquire, own or hold, directly or indirectly, (a) this Lease or the leasehold
estate created hereby or any interest in this Lease or such leasehold estate and
(b) the fee estate in the Property.
28.8 QUIET ENJOYMENT. So long as Tenant shall pay all Rent as the same
becomes due and shall fully comply with all of the terms of this Lease and fully
perform its obligations hereunder, Tenant shall peaceably and quietly have, hold
and enjoy the Property for the Term hereof, free of any claim or other action by
Landlord or anyone claiming by, through or under Landlord, but subject to all
liens and encumbrances of record as of the date hereof or any Landlord's
Encumbrances.
28.9 NOTICES. All notices, demands, requests, consents, approvals and
other communications hereunder shall be in writing and delivered or mailed (by
registered or certified mail, return receipt requested and postage prepaid),
addressed to the respective parties, as set forth below:
If to Landlord: Golf Trust of America, L.P.
00 Xxxxx Xxxxx'x Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: W. Xxxxxxx Xxxxx, XX
With a Copy to: Xxxxxx Xxxxx Xxxxxx Xxxxxxx &
Xxxxxxxx, LLP
64
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Xx. Esq.
Xxxxxxx X. Xxxxxx, Esq.
If to Tenant: Prestwick Golf Club, Inc.
c/o Xx. Xxxx X. Xxxxxxxx, Xx.
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
Xxxx, Sicuro & Simon
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxx 00000
28.10 SURVIVAL OF CLAIMS. Anything contained in this Lease to the contrary
notwithstanding, all claims against and liabilities of, Tenant or Landlord
arising prior to any date of termination of this Lease shall survive such
termination.
28.11 INVALIDITY OF TERMS OR PROVISIONS. If any term or provision of this
Lease or any application thereof shall be invalid or unenforceable, the
remainder of this Lease and any other application of such term or provision
shall not be affected thereby.
28.12 PROHIBITION AGAINST USURY. If any late charges provided for in any
provision of this Lease are based upon a rate in excess of the maximum rate
permitted by applicable law, the parties agree that such charges shall be fixed
at the maximum permissible rate.
28.13 AMENDMENTS TO LEASE. Neither this Lease nor any provision hereof may
be changed, waived, discharged or terminated except by an instrument in writing
and in recordable form signed by Landlord and Tenant.
28.14 SUCCESSORS AND ASSIGNS. All the terms and provisions of this Lease
shall be binding upon and inure to the benefit of the parties hereto. All
permitted assignees or sublessees shall be subject to the terms and provisions
of this Lease.
28.15 TITLES. The headings in this Lease are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
28.16 GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the State (but not including its conflict of laws
rules).
65
28.17 MEMORANDUM OF LEASE. Landlord and Tenant shall, promptly upon the
request of either, enter into a short form memorandum of this Lease, in form and
substance satisfactory to Landlord and suitable for recording under the State,
in which reference to this Lease, and all options contained herein, shall be
made. Tenant shall pay all costs and expenses of recording such Memorandum of
Lease.
28.18 ATTORNEYS' FEES. In the event of any dispute between the parties
hereto involving the covenants or conditions contained in this Lease or arising
out of the subject matter of this Lease, the prevailing party shall be entitled
to recover against the other party reasonable attorneys' fees and court costs.
28.19 NO THIRD PARTY BENEFICIARIES. Nothing in this Lease, express or
implied, is intended to confer any rights or remedies under or by reason of this
Lease on any Person other than the parties to this Lease and their respective
permitted successors and assigns, nor is anything in this Lease intended to
relieve or discharge any obligation of any third Person to any party hereto or
give any third Person any right of subrogation or action against any party to
this Lease.
28.20 NON-RECOURSE AS TO LANDLORD. Anything contained herein to the
contrary notwithstanding, any claim based on or in respect of any liability of
Landlord under this Lease shall be enforced only against the Property and not
against any other assets, properties or funds of (a) Landlord, (b) any director,
officer, general partner, limited partner, employee or agent of Landlord, or any
general partner of Landlord, any of their respective general partners or
stockholders (or any legal representative, heir, estate, successor or assign of
any thereof), (c) any predecessor or successor partnership or corporation (or
other entity) of Landlord, or any of their respective general partners, either
directly or through either Landlord or their respective general partners or any
predecessor or successor partnership or corporation or their stockholders,
officers, directors, employees or agents (or other entity), or (d) any other
Person affiliated with any of the foregoing, or any director, officer, employee
or agent of any thereof.
28.21 NO RELATIONSHIP. Landlord shall in no event be construed for any
purpose to be a partner, joint venturer or associate of Tenant or of any
subtenant, operator, concessionaire or licensee of Tenant with respect to the
Property or any of the Other Leased Properties or otherwise in the conduct of
their respective businesses.
28.22 RELETTING. If Tenant does not exercise its option to extend or
further extend the Term under Section 3.2 or if an Event of Default occurs, then
Landlord shall have the right during the
66
remainder of the Term then in effect to advertise the availability of the
Property for sale or reletting and to show the Property to prospective
purchasers or tenants or their agents at such reasonable times as Landlord may
elect.
28.23 YEAR 2000 PROBLEM. Tenant either has or shall take action necessary
to assure that Tenant's computer based systems are able to operate and
effectively recognize and perform date-sensitive functions involving certain
dates prior to and after December 31, 1999 (the "Year 2000 Problem"). Tenant
reasonably believes that all computer applications (including those of its
suppliers and vendors) that are material to the operation of the Property will
on a timely basis be able to perform properly date-sensitive functions related
to the Year 2000 Problem (that is, be "Year 2000 compliant"). Tenant shall
indemnify and hold Landlord harmless from any and all claims, losses, damages
and liabilities incurred as a result of Tenant's failure to be Year 2000
complaint.
28.24 LANDLORD'S RIGHT TO GOLF ROUNDS. Tenant agrees that Landlord or
Landlord's designee shall have the right to play without charge up to eight (8)
rounds of golf per month on the golf course Property. Landlord may assign the
rounds for use to any designee, and may make reservations with Tenant for any
open tee times.
SIGNATURES ON FOLLOWING PAGE
67
LANDLORD: GOLF TRUST OF AMERICA, L.P.
a Delaware limited Partnership
By: GTA GP, Inc., a Maryland
corporation
Its: General Partner
By: /S/
-----------------
Name: W. Xxxxxxx Xxxxx, XX
Title: President and Chief
Executive Officer
68
TENANT: PRESTWICK GOLF CLUB, INC.,
an Ohio corporation
By: /s/
-------------------------------
Name:
-----------------------------
Title:
----------------------------
69
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
A-1
EXHIBIT B
SCHEDULE OF IMPROVEMENTS
1 18 hole golf course;
2 2-story wood and stone frame clubhouse building;
3 two (2) 10'x10' wood bathrooms;
4 two (2) 1-story metal buildings (equipment storage buildings);
5 pool;
6 two (2) concrete blocks;
7 elevated walkway;
8 various tree planting and fencing;
B-1
EXHIBIT C
OTHER LEASED PROPERTIES
1. Raintree Country Club, Uniontown, Ohio.
C-1
EXHIBIT D
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") is entered into as of this 17th
day of July, 1998, by and between (i) GOLF TRUST OF AMERICA, L.P., a Delaware
limited partnership, ("Secured Party"), and (ii) XXXX X. XXXXXXXX, XX. AND XXXXX
XXXXXXXX, husband and wife, and RAINTREE COUNTRY CLUB, INC., an Ohio corporation
(collectively, "Pledgor").
RECITALS:
This Agreement is entered into based on the following understandings:
A. Pursuant to that certain Purchase and Sale Agreement (the "Purchase
Agreement") dated as of July 17, 1998, by and between Secured Party and Xxxx X.
Xxxxxxxx, Xx. and Xxxxx Xxxxxxxx, husband and wife (collectively, "Transferor"),
Transferor transferred to Secured Party all of its right, title and interest in
and to certain real and personal property as described in the Purchase Agreement
(collectively, the "Property").
B. Pursuant to that certain lease dated as of July 17, 1998,(the
"Lease") Secured Party leased its interest in the Property to Prestwick Golf
Club, Inc., an Ohio corporation, an affiliate of Pledgor ("Tenant").
C. As a condition to (i) Secured Party entering into the Lease with
Tenant; and (ii) Secured Party entering into the Purchase Agreement with
Transferor, Secured Party has required that Pledgor pledge the Pledged Owner's
Shares (as hereinafter defined) as security for the Obligations (as hereinafter
defined).
D. Raintree Country Club, Inc. Is an affiliated entity of Tenant and is
owned in whole or in part by Transferor and Raintree Country Club, Inc. Does
hereby acknowledge the direct and indirect benefits it is receiving by providing
this Pledge Agreement to Secured Party.
D-1
1. DEFINITIONS
(a) Capitalized terms not otherwise defined herein shall have the
meaning given to them in the Lease.
(b) The following terms shall have the indicated meanings:
"AGREEMENT" has the meaning set forth in the introductory Paragraph of
this Agreement.
"EVENT OF DEFAULT" has the meaning set forth in Section 14(a) of this
Agreement.
"INDEMNITY EVENT" has the meaning set forth in Section 2(a) of this
Agreement.
"LEASE" has the meaning set forth in Recital B of this Agreement.
"OBLIGATIONS" has the meaning set forth in Section 2(a) of this Agreement.
"PLEDGED OWNER'S SHARES" has the meaning set forth in Section 2(a) of this
Agreement.
"PLEDGOR" has the meaning set forth in the introductory Paragraph of this
Agreement.
"PLEDGOR'S GUARANTY" has the meaning set forth in Section 3(a) of this
Agreement.
"PROPERTY" has the meaning set forth in Recital A of this Agreement.
"PURCHASE AGREEMENT" has the meaning set forth in Recital A of this
Agreement.
"SECURED PARTY" has the meaning set forth in the introductory Paragraph of
this Agreement.
"SECURITY FUND" has the meaning set forth in Section 2(a) of this
Agreement.
"TENANT" has the meaning set forth in Recital B of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and for other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Secured Party and Pledgor hereby agree as
follows:
D-2
2. GRANT OF SECURITY INTEREST.
(a) As security for the payment and performance of all obligations and
liabilities (including, without limitation, indemnities, fees and interest
thereon) of Pledgor, Tenant or any of Pledgor's direct or indirect subsidiaries
arising under: (i) Pledgor's obligation to indemnify Secured Party for breaches
of the representations and warranties made by Pledgor pursuant to Article 3 of
the Purchase Agreement (which obligations shall expire one (1) year from the
date of the Purchase Agreement); (ii) the Lease; (iii) the Pledgor's Guaranty
pursuant to Section 3 of this Agreement and all other provisions of this
Agreement; or (iv) in connection with any agreement, instrument or extension
contemplated by the foregoing documents (collectively, the "Obligations"),
Pledgor hereby pledges, hypothecates and grants to Secured Party a first and
prior security interest in 45,845 Owner's Shares (the "Pledged Owner's Shares")
which reflects a value of $1,600,000.00 which was priced at the closing trading
average for the previous five (5) business days prior to July 17, 1998 (which
shall include any increase or decrease in the Pledged Owner's Shares, in
accordance with the formula set forth on Exhibit D-1 attached hereto), together
with, after an occurrence and during the continuance of an Event of Default
hereunder or if any representation or warranty in Article 3 of the Purchase
Agreement is breached by Pledgor or proves to be false, as applicable (an
"Indemnity Event"), any and all proceeds thereof, including without limitation,
any and all dividends, income, interest and distributions earned from or
attributable to the investment or deposit of the Pledged Owner's Shares (the
Pledged Owner's Shares, together with all of the foregoing being collectively
referred to herein as the "Security Fund"). Pledgor shall have the right to
pledge, as substitute collateral, cash or other security that is acceptable to
Secured Party in its sole and absolute discretion. Prior to (x) any Event of
Default under the Lease (and after the cure or satisfaction thereof by Tenant or
Pledgor, at its sole election), (y) an Indemnity Event, or (z) an Event of
Default (defined below) all dividends, income, interest and/or distributions
earned from or attributable to the investment or deposit of the Security Fund
shall be payable to Pledgor; following an Event of Default under the Lease such
amounts shall be added to and become a part of the Security Fund and shall only
be disbursed in accordance with the terms of this Agreement. By its execution of
this Agreement, Pledgor acknowledges that it has delivered the Pledged Owner's
Shares to Secured Party as required by this Agreement. The word "Obligations" is
used herein in its most comprehensive sense and includes without limitation any
and all debts, obligations and liabilities of Pledgor, Tenant or any of
Pledgor's direct or indirect subsidiaries, arising as a result of a breach of
any of the representations and warranties made by Pledgor pursuant to Article 3
of the Purchase Agreement, the Lease or this Agreement, now or hereafter made,
incurred or created,
D-3
whether voluntary or involuntary and however arising, whether due or not due,
absolute or contingent, liquidated or unliquidated, determined or undetermined,
and whether Pledgor, Tenant or any of Pledgor's direct or indirect subsidiaries
may be liable individually or jointly, or whether recovery upon such Obligations
may be or hereafter become unenforceable. The Pledged Owner's Shares shall be
released in accordance with the provisions of Exhibit D-1 attached hereto (so
long as no Event of Default exists) or upon expiration of the Lease and
fulfillment of the Obligations.
(b) If the Pledgor shall become entitled to receive or shall receive, in
connection with any of the Security Fund, any:
(i) Stock certificate, including, without limitation, any certificate
representing a stock dividend or in connection with any increase or reduction of
capital, reclassification, merger, consolidation, sale of assets, combination of
shares, stock split, spin-off or split-off;
(ii) Option, warrant, or right, whether as an addition to or in
substitution or in exchange for any of the Security Fund, or otherwise;
(iii) Dividend or distribution payable in property, including securities
issued by a person other than the issuer of any of the Pledged Owner's Shares;
or
(iv) Dividends or distributions of any sort, then, except for dividends
received by Pledgor at such time as there does not exist an uncured Event of
Default with respect to Pledgor, Pledgor shall accept the same as the agent of
Secured Party, in trust for Secured Party, and shall deliver them forthwith to
Secured Party, in the exact form received, with, as applicable, the Pledgor's
endorsement when necessary, or appropriate stock powers duly executed in blank
by Pledgor, to be held by Secured Party, subject to the terms hereof, as part of
the Security Fund.
(c) Pledgor shall execute and deliver to Secured Party such financing
and continuation statements covering the Security Fund and take such other
actions as Secured Party may from time to time require to perfect and continue
the perfection of Secured Party's security interest in the Security Fund.
3. GUARANTY OF OBLIGATIONS
(a) Pledgor irrevocably and unconditionally guarantees the full and
prompt payment when due of the Obligations and the due performance and
compliance with any of the terms of the Lease ("Pledgor's Guaranty").
D-4
(b) Pledgor hereby waives notice of acceptance of this Agreement and
notice of any liability to which it may apply, and waives presentment, demand of
payment, protest, notice of dishonor or nonpayment of any such liability, suit
or taking of other action by Secured Party against Pledgor or Tenant.
(c) Pledgor's Guaranty shall not be released, modified, impaired or
otherwise affected by the following (whether or not Pledgor shall have had
notice or knowledge of the same): (i) any extension or indulgence by Secured
Party in respect to the performance of or compliance with the Obligations; (ii)
any failure, omission or inability of Secured Party to enforce any right, power
or remedy in respect to the Lease, the Purchase Agreement or this Agreement;
(iii) any amendment of the Lease or the Purchase Agreement; (iv) any receipt of
security including, without limitation, the Security Fund, or any sale,
exchange, release or subordination of security held by Secured Party with
respect to the Obligations; (v) any release from any liability of any person
liable under the terms of the Lease, the Purchase Agreement or this Agreement or
any other guarantor; (vi) any limitation or impairment of Secured Party's
remedies against Tenant or any other party liable under the terms of the Lease,
the Purchase Agreement or this Agreement; (vii) any action or inaction of
Secured Party with respect to the Lease, the Purchase Agreement or this
Agreement; (viii) any change in the name or identity of Tenant or any other
person or entity referred to in this Agreement; (ix) the invalidity or
unenforceability of the Lease or the Purchase Agreement; or (x) the death or
incapacity of Tenant or any other person or entity referred to in this
Agreement.
(d) If all or any portion of the Obligations of Pledgor as described in
Section 3(a) of this Agreement are paid or performed, the responsibilities of
Pledgor pursuant to Pledgor's Guaranty shall continue and remain in full force
and effect in the event that all or any part of such payment(s) or
performance(s) is avoided or recovered directly or indirectly from Secured Party
as a preference, fraudulent transfer or otherwise, irrespective of payment in
full of all sums due pursuant to such obligations.
(e) The liability of Pledgor pursuant to Pledgor's Guaranty is not
conditioned or contingent upon the genuineness, validity, regularity or
enforceability of the Lease or the Purchase Agreement or the pursuit by Secured
Party of any remedies which it now has or may hereafter have with respect
thereto, at law, in equity or otherwise, and Pledgor hereby waives any and all
benefits and defenses that it may have to the contrary and agrees that by doing
so Pledgor shall be liable even if Tenant had no liability at the time of the
execution of the Lease or thereafter ceases to be liable. Pledgor further agrees
that by doing so Pledgor's liability may be larger in amount and more burdensome
than that of Tenant, notwithstanding any benefits or defenses that Pledgor may
have to
D-5
the contrary. Pledgor agrees that its liability hereunder shall continue and
shall not be limited or affected in any way by an impairment or any diminution
in loss of value in any security or collateral for the ease (including, but not
limited to the Security Fund, the leased premises or any personal property or
fixtures thereon), whether caused by hazardous substance or otherwise, or
Secured Party's failure to perfect a security interest in the Security Fund.
(f) Pledgor hereby waives: (i) all notices to Pledgor, to Tenant, or to
any other person, including, but not limited to, the creation, renewal,
extension, assignment, modification or accrual of any of the Obligations and
enforcement of any right or remedy with respect thereto, and notice of any other
matters relating thereto; (ii) demand of payment, presentation and protest;
(iii) any right to require Secured Party to apply to any default the Security
Fund or other security it may hold under the Lease; (v) notice of any sale of
personal property security of Tenant held by Secured Party; (vi) any and all
statutes of limitations affecting Pledgor's and/or Tenant's liability under this
Agreement or the Lease, as applicable, and/or the enforcement of this Agreement
or the Lease, as applicable; and (vii) all principles or provisions of law which
conflict with the terms of this Agreement. Pledgor further agrees that Landlord
may enforce Pledgor's Guaranty upon the occurrence of a default under the Lease,
notwithstanding any dispute between Secured Party and Tenant or Pledgor with
respect to the existence of said default or the payment or performance of the
Obligations or any counterclaim, set-off or other claim which Tenant or Pledgor
may allege against Secured Party with respect thereto. Pledgor also agrees that
upon the abandonment of the Property by Tenant, even if accepted by Secured
Party, or the eviction of Tenant, Pledgor shall remain liable for future
payments of rent, subject to Secured Party's reasonable efforts to mitigate
damages.
(g) Pledgor hereby waives any and all benefits and defenses it may have
with respect to the right to require Landlord to: (i) proceed against Tenant or
any other guarantor of the Obligations; (ii) proceed against or exhaust any
security or collateral Secured Party may hold, including without limitation, the
Security Fund; or (iii) pursue any other right or remedy for Pledgor's benefit;
and Pledgor agrees that Secured Party may proceed against Pledgor for the
Obligations without taking any action against Tenant or any other guarantor and
without proceeding against or exhausting any security or collateral Secured
Party holds, including, without limitation, the Security Fund. Pledgor agrees
that Secured Party may unqualifiedly exercise in its sole discretion any or all
rights and remedies available to it against Tenant or any other guarantor
without impairing Secured Party's rights and remedies in enforcing Pledgor's
Guaranty, under which Pledgor's liabilities shall remain independent and
unconditional. Pledgor agrees that Secured Party's
D-6
exercise of certain of such rights or remedies may affect or eliminate Pledgor's
right of subrogation or recovery against Tenant and that, as a result thereof,
Pledgor may incur a partially or totally nonreimbursable liability under
Pledgor's Guaranty.
(h) Pledgor hereby agrees that Pledgor shall have no right of
subrogation or reimbursement against Tenant or any right of contribution against
any other guarantor unless and until all rentals and all other sums due under
the Lease have been paid in full and all of the Obligations have been satisfied
and waives any benefits or defenses that Pledgor may have to the contrary.
Pledgor further agrees that, to the extent of the waiver of Pledgor's rights of
subrogation, reimbursement and contribution as set forth herein is found by a
court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation or reimbursement Pledgor may have against Tenant shall be
junior and subordinate to any rights Secured Party may have against Tenant, and
any rights of contribution Pledgor may have against any other guarantor shall be
junior and subordinate to any rights Secured Party may have against such other
guarantor. Pledgor also agrees that Pledgor's Guaranty is in addition to the
guaranty of any other guarantor and any and all of Pledgor's other guarantees of
Tenant's obligations or liabilities to Secured Party and that this Guaranty
shall in no way limit or lessen any other liability, however arising, that
Pledgor may have for the payment of any other indebtedness of Tenant to Secured
Party.
(i) To the extent any dispute exists at any time (whether or not this
Agreement or the Lease shall have previously terminated) between or among Tenant
and/or any other guarantor as to any rights to subrogation, reimbursement,
contribution or otherwise, Pledgor agrees to indemnify, defend and hold Secured
Party harmless from and against any loss, damage, claim, demand, cost or any
other liability (including, without limitation, reasonable attorneys' fees and
costs) Secured Party may suffer as a result of such dispute.
(j) The obligations of Pledgor under Pledgor's Guaranty shall not be
altered, limited or affected by any case, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of Tenant or by any defense which Tenant may have by reason of the
order, decree or decision of any court or administrative body resulting from any
such case. Secured Party shall have the sole right to accept or reject any plan
on behalf of Pledgor proposed in such case and to take any other action which
Pledgor would be entitled to take, including, without limitation, the decision
to file or not file a claim. Pledgor acknowledges and agrees that any payment
which accrues with respect to Tenant's obligations under the Lease (including,
without limitation, the payment of rent) after the commencement of any such
proceeding (or, if any such payment ceases
D-7
to accrue by operation of law by reason of the commencement of said proceeding,
such payment as would have accrued if said proceedings had not been commenced)
shall be included in the Obligations because it is the intention of the parties
that said Obligations be determined without regard to any rule or law or order
which may relieve Tenant of any of its obligations under the Lease. Pledgor
hereby permits any trustee in bankruptcy, receiver, debtor-in-possession,
assignee for the benefit of creditors or similar person to pay Secured Party, or
allow the claim of Secured Party in respect of, any such payment accruing after
the date on which such proceeding is commenced. Pledgor assigns to Secured Party
Pledgor's right to receive any payments from any trustee in bankruptcy,
receiver, debtor-in- possession, assignee for the benefit of creditors or
similar person by way of dividend, adequate protection payment or otherwise.
4. CONTINUING AGREEMENT; REVOCATION; OBLIGATION UNDER OTHER AGREEMENTS.
This is a continuing agreement and all rights, powers and remedies hereunder
shall apply to all past, present and future obligations of Tenant or Pledgor to
Secured Party under the Lease or the Purchase Agreement. This Agreement shall
not terminate except in accordance with its terms or Secured Party's written
release of Pledgor from its Obligations under this Agreement.
5. OBLIGATIONS INDEPENDENT: SEPARATE ACTIONS; WAIVER OF STATUTE OF
LIMITATIONS: REINSTATEMENT OF LIABILITY. The Obligations hereunder are
independent of the obligations of Tenant and Pledgor (including, without
limitation, those obligations made pursuant to the Purchase Agreement), and a
separate action or actions may be brought and prosecuted against Pledgor
hereunder whether action is brought against Tenant, Pledgor (under the Purchase
Agreement), or any other person, or whether Tenant or any other person is joined
in any such action or actions. Pledgor acknowledges that there are no conditions
precedent to the effectiveness of this Agreement, and that this Agreement is in
full force and effect and is binding on Pledgor as of the date written below,
regardless of whether Secured Party obtains additional collateral or any
guaranties from others or takes any other action contemplated by Pledgor.
Pledgor waives the benefit of any statute of limitations affecting Pledgor's
liability hereunder or the enforcement thereof, and Pledgor agrees that any
payment of any Obligations or other act which shall toll any statute of
limitations applicable thereto shall similarly operate to toll such statute of
limitations applicable to Pledgor's liability under this Agreement. The
liability of Pledgor under this Agreement shall be reinstated and revived and
the rights of Secured Party shall continue if and to the extent for any reason
any amount at any time paid on account of the Obligations is rescinded or must
be otherwise restored by Secured Party, whether as a result of any proceedings
in bankruptcy, insolvency, reorganization or otherwise, all as though such
amount had not been paid. The determination as to whether any amount so paid
must be rescinded or restored shall
D-8
be made by Secured Party in its sole discretion; provided, however, that if
Secured Party chooses to contest any such matter at the request of Pledgor,
Pledgor agrees to indemnify and hold Secured Party harmless from and against all
costs and expenses, including reasonable attorneys' fees, expended or incurred
by Secured Party in connection therewith, including without limitation, in any
litigation with respect thereto.
6. REPRESENTATIONS AND WARRANTIES.
(a) Pledgor represents and warrants to Secured Party that: (i) Pledgor
is the owner, directly or indirectly, and has possession or control of the
Pledged Owner's Shares; (ii) Pledgor has the right to pledge the Pledged Owner's
Shares; (iii) the Pledged Owner's Shares are genuine, free from liens, adverse
claims, setoffs, default, prepayment, defenses and conditions precedent of any
kind or character, except as previously disclosed to Secured Party in writing by
Pledgor; (iv) specifically with respect to Pledged Owner's Shares consisting of
investment securities, instruments, chattel paper, documents, contracts,
insurance policies or any like property, all persons appearing to be obligated
thereon have authority and capacity to contract and are bound as they appear to
be, and the same comply with applicable laws concerning form, content and manner
of preparation and execution) (v) all statements contained herein and, where
applicable, in the Pledged Owner's Shares are true and complete; and (vi) no
financing statement covering any of the Pledged Owner's Shares and naming any
secured party other than Secured Party, is on file in any public office.
(b) Pledgor further represents and warrants to Secured Party that with
respect to the Pledged Owner's Shares securing Tenant's obligations under the
Lease pursuant to this Agreement: (i) such Pledged Owner's Shares are so pledged
at Tenant's request; (ii) Secured Party has made no representation to Pledgor as
to the creditworthiness of Tenant; and (iii) Pledgor has established adequate
means of obtaining from Tenant on a continuing basis financial and other
information pertaining to Tenant's financial condition. Pledgor agrees to keep
adequately informed by such means of any facts, events or circumstances which
might in any way affect Pledgor's risks hereunder, and Pledgor further agrees
that Secured Party shall have no obligation to disclose to Pledgor any
information or material about Tenant which is acquired by Secured Party in any
manner. Pledgor further warrants and represents that it has reviewed and
approved copies of the Lease and is fully informed of the remedies that Secured
Party may pursue under the Lease or at law or in equity, with or without notice
to Pledgor, in the event of a default under the Lease.
(c) Pledgor understands that but for Pledgor's pledge of the Pledged
Owner's Shares and the other agreements contained herein, Secured Party would
not enter into the Lease with Tenant or the
D-9
Purchase Agreement and that the Security Fund pledged pursuant to this Agreement
will serve as collateral for the Lease and the Purchase Agreement on the terms
and conditions of this Agreement.
7. COVENANTS OF PLEDGOR.
(a) Pledgor agrees in general: (i) to indemnify Secured Party against
all losses, claims, demands, liabilities and expenses of every kind caused by
property subject hereto; (ii) to pay all costs and expenses, including
reasonable attorneys' fees, incurred by Secured Party any time after the
occurrence of an Event of Default under the Lease or as such costs and expenses
relate to a breach by Pledgor of any representation or warranty contained in
Article 3 of the Purchase Agreement, in the realization, enforcement and
exercise of its rights, powers and remedies hereunder; (iii) to permit Secured
Party to exercise its powers; (iv) to execute and deliver such documents as
Secured Party deems necessary to create, perfect and continue the security
interests contemplated hereby; and (v) not to change its chief place of business
or the place where Pledgor keeps any records concerning the Pledged Owner's
Shares without first giving Secured Party written notice of the address to which
Pledgor is moving same.
(b) Pledgor agrees with regard to the Security Fund: (i) not to permit
any lien on the Security Fund except in favor of Secured Party; (ii) not to
withdraw any funds from any deposit account pledged to Secured Party hereunder
without Secured Party's prior written consent; (iii) not to sell, hypothecate or
otherwise dispose of any of the Pledged Owner's Shares or any interest therein,
without the prior written consent of Secured Party; (iv) to keep, in accordance
with generally accepted accounting principles, complete and accurate records
regarding all Pledged Owner's Shares and to permit Secured Party to inspect the
same at any reasonable time; (v) if requested by Secured Party following an
Event of Default under the Lease or an Indemnity Event, to receive and use
reasonable diligence to collect proceeds from the Pledged Owner's Shares, in
trust and as part of the Security Fund to be held in accordance with Section
2(a) above; (vi) not to commingle Pledged Owner's Shares with other property;
(vii) to provide any service and do any other acts or things necessary to keep
the Pledged Owner's Shares free and clear of all defenses, rights of offset and
counterclaims; and (viii) if the Pledged Owner's Shares consists of securities
and so long as no Event of Default or Indemnity Event exists, to vote said
securities and to give consents, waivers and ratifications with respect thereto,
provided that no vote shall be cast or consent, waiver or ratification given or
action taken which would impair Secured Party's interest in the Security Fund or
be inconsistent with or violate any provisions of this Agreement.
8. POWERS OF SECURED PARTY. Pledgor appoints Secured Party its true
attorney in fact to perform any of the following powers, which
D-10
are coupled with an interest and are irrevocable until this Agreement has been
terminated pursuant to its terms and may be exercised from time to time by
Secured Party's officers and employees: (a) to perform any obligation of Pledgor
hereunder in Pledgor's name or otherwise; (b) to notify any person obligated on
any security, instrument or other document subject to this Agreement of Secured
Party's rights hereunder; (c) to collect by legal proceedings or otherwise all
dividends, interest, principal or other sums now or hereafter payable upon or on
account of the Security Fund; (d) to enter into any extension, reorganization,
deposit, merger or consolidation agreement, or any other agreement relating to
or affecting the Security Fund and in connection therewith to deposit or
surrender control of the Security Fund to accept other property in exchange for
the Security Fund, and to do and perform such acts and things as Secured Party
may deem proper, with any money or property received in exchange for the
Security Fund at Secured Party's option, to be applied to the Obligations or
held by Secured Party under this Agreement; (e) to make any compromise or
settlement Secured Party deems desirable or proper in respect of the Security
Fund; (f) to insure, process and preserve the Security Fund; (g) to exercise all
rights, powers and remedies which Pledgor would have, but for this Agreement,
under all the Pledged Owner's Shares subject to this Agreement; (h) to do all
acts and things and execute all documents in the name of Pledgor or otherwise
that are deemed by Secured Party as necessary, proper or convenient in
connection with the preservation, perfection or enforcement of its rights
hereunder; and (i) to execute and file in Pledgor's name any financing
statements and amendments thereto required to perfect Secured Party's security
interest hereunder; provided, however, that until the occurrence and only during
the continuation of an Event of Default or an Indemnity Event shall Secured
Party have the right to exercise the power of attorney for the purposes
described in paragraphs (a), (c), (d), (e), (f), (g), or (h). If an Event of
Default or Indemnity Event has occurred and is continuing, any or all of the
Security Fund consisting of securities may be registered, without notice, in the
name of Secured Party or its nominee, and thereafter Secured Party or its
nominee may exercise, without notice, all voting and partnership rights at any
meeting of the partners of the issuer thereof, any and all rights of conversion,
exchange or subscription, or any other rights, privileges or options pertaining
to any Pledged Owner's Shares all as if it were the absolute owner thereof. The
foregoing shall include, without limitation, the right of Secured Party or its
nominee to exchange, at its discretion, any and all Pledged Owner's Shares upon
the merger, consolidation, reorganization, recapitalization or other
readjustment of the issuer thereof, or upon the exercise by the issuer thereof
or Secured Party of any right, privilege or option pertaining to any Pledged
Owner's Shares and in connection therewith, the right to deposit and deliver any
and all of the Pledged Owner's Shares with any committee, depository, transfer
agent, registrar or other
D-11
designated agent upon such terms and conditions as Secured Party may determine.
All of the foregoing rights, privileges or options may be exercised without
liability except to account for property actually received by Secured Party.
Secured Party shall have no duty to exercise any of the foregoing, or any other
rights, privileges or options with respect to the Pledged Owner's Shares and
shall not be responsible for any failure to do so or delay in so doing.
9. CASH COLLATERAL ACCOUNT. Any money received by Secured Party in
respect of the Security Fund will be retained in an interest bearing cash
collateral account and the same shall, for all purposes, be deemed part of the
Security Fund hereunder.
10. SECURED PARTY'S CARE AND DELIVERY OF PLEDGED OWNER'S SHARES. Secured
Party's obligation with respect to the Security Fund in its possession shall be
strictly limited to the duty to exercise reasonable care in the custody and
preservation of the Security Fund, and such duty shall not include any
obligation to ascertain or to initiate any action with respect to or to inform
Pledgor of maturity dates, conversion, call or exchange rights, or offers to
purchase the Pledged Owner's Shares or any similar matters, notwithstanding
Secured Party's knowledge of the same. Secured Party shall have no duty to take
any steps necessary to preserve the rights of Pledgor against prior parties, or
to initiate any action to protect against the possibility of a decline in the
market value of the Pledged Owner's Shares. Secured Party shall not be obligated
to take any actions with respect to the Pledged Owner's Shares requested by
Pledgor unless such request is made in writing and Secured Party determines, in
its sole discretion, that the requested action would not unreasonably jeopardize
the value of the Pledged Owner's Shares as security for the Obligations. Secured
Party may at any time deliver the Security Fund, or any part thereof, to
Pledgor, and the receipt thereof by Pledgor shall be a complete and full
acquittance for the Security Fund so delivered, and Secured Party shall
thereafter be discharged from any liability or responsibility therefor.
11. PLEDGOR'S WAIVERS.
(a) Pledgor waives any right to require Secured Party to: (i) proceed
against any person, including Tenant or Pledgor under the Purchase Agreement;
(ii) proceed against or exhaust any security held from Tenant; (iii) give notice
of the terms, time and place of any public or private sale of personal property
security held from Tenant or any other person or otherwise comply with any other
provisions of Section 9-504 Uniform Commercial Code; (iv) pursue any other
remedy in Secured Party's power; or (v) make any presentments or demands for
performance, or give any notices of nonperformance, protests, notices of protest
or notices of dishonor in connection with any obligations or evidences of
indebtedness
D-12
held by Secured Party as security or which constitute in whole or in part the
Obligations secured hereunder, or in connection with the creation of new or
additional Obligations.
(b) Pledgor waives any defense arising by reason of: (i) any disability
or other defense of Tenant, Pledgor or any other person; (ii) the cessation or
limitation from any cause whatsoever, other than payment in full, of the
Obligations of Tenant, Pledgor or any other person; (iii) any lack of authority
of any officer, director, partner, agent or any other person acting or
purporting to act on behalf of Tenant or Pledgor which is a corporation,
partnership or other type of entity, or any defect in the formation of Tenant or
Pledgor; (iv) any act or omission by Secured Party which directly or indirectly
results in or aids the discharge of Tenant or Pledgor or any Obligations by
operation of law or otherwise; or (v) any modification of the Obligations, in
any form whatsoever, including any modification made after revocation hereof to
any Obligations incurred prior to such revocation, and including, without
limitation, the renewal, extension, acceleration or other change in time for
payment of the Obligations, or other change in the terms of the Obligations, or
any part thereof. Until all Obligations shall have been paid in full, Pledgor
shall have no right of subrogation, and Pledgor waives any defense Pledgor may
have based upon an election of remedies by Secured Party which destroys
Pledgor's subrogation rights or Pledgor's rights to proceed against Tenant for
reimbursement, including without limitation, any loss of rights Pledgor may
suffer by reason of any rights, powers or remedies of Tenant in connection with
any anti-deficiency laws or any other laws limiting, qualifying or discharging
Tenant's Obligations. Until all Obligations of Tenant to Secured Party shall
have been paid in full, Pledgor further waives any right to enforce any remedy
which Secured Party now has or may hereafter have against Tenant or any other
person, and waives any benefit of, or any right to participate in, any security
whatsoever now or hereafter held by Secured Party.
12. AUTHORIZATIONS TO SECURED PARTY. Pledgor authorizes Secured Party
either before or after revocation hereof, without notice or demand and without
affecting Pledgor's liability hereunder, from time to time to: (a) alter,
compromise, renew, extend, accelerate or otherwise change the time for payment
of, or otherwise change the terms of the Obligations or any part thereof; (b)
take and hold security, other than the Pledged Owner's Shares, for the payment
of the Obligations or any part thereof and exchange, enforce, waive and release
the Pledged Owner's Shares, or any part thereof, or any such other security; (c)
apply the Pledged Owner's Shares or any other security and direct the order or
manner of sale thereof, including without limitation, a non-judicial sale
permitted by the terms of this Agreement, as Secured Party in its discretion may
determine; (d) release or substitute any one or more of the endorsers or
guarantors of the Obligations, or any part
D-13
thereof, or any other parties thereto; and (e) apply payments received by
Secured Party from Tenant or Pledgor to any Obligations of Tenant or Pledgor to
Secured Party, in such order as Secured Party shall determine in its sole
discretion, whether or not any such Obligations is covered by this Agreement,
and Pledgor hereby waives any provision of law regarding application of payments
which specifies otherwise.
13. PAYMENT OF TAXES, CHARGES, LIENS AND ASSESSMENTS. Pledgor agrees to
pay, prior to delinquency, all taxes, charges, liens and assessments against the
Security Fund, and upon the failure of Pledgor to do so, Secured Party at its
option may pay any of them and shall be the sole judge of the legality or
validity thereof and the amount necessary to discharge the same. Any such
payments made by Secured Party shall be obligations of Pledgor to Secured Party,
due and payable immediately upon demand, together with interest at a rate
determined in accordance with the provisions of Section 17 of this Agreement,
and shall be secured by the Security Fund, subject to all terms and conditions
of this Agreement.
14. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "Event of Default" under this Agreement: (a) any default in the
payment or performance of any obligation, or any defined event of default, after
any applicable cure or grace period under the Lease which has not been cured by
pledgor within ten (10) days of the date such cure period of Tenant expired; or
(b) any representation or warranty made by Pledgor herein shall prove to be
incorrect in any material respect when made; or (c) an Indemnity Event; or (d)
Pledgor shall fail to observe or perform any obligation or agreement contained
herein after Secured Party has provided written notice describing such failure
and Pledgor has failed within thirty (30) days of receipt of such notice to cure
such failure, provided if such cure cannot be completed within such thirty (30)
day period, then such cure period shall be extended for so long as Pledgor is
diligently prosecuting such cure to completion up to a maximum of ninety (90)
days.
15. REMEDIES. Upon the occurrence of any Event of Default, Secured Party
shall have and may exercise without demand any and all rights, powers,
privileges and remedies granted to a secured party upon default under the
Uniform Commercial Code or otherwise provided to Secured Party by law. All
rights, powers, privileges and remedies of Secured Party shall be cumulative.
Secured Party may exercise its right of set off with respect to the Obligations
in the same manner as if the Obligations were unsecured. No delay, failure or
discontinuance of Secured Party in exercising any right, power, privilege or
remedy hereunder shall affect or operate as a waiver of such right, power,
privilege or remedy; nor shall any single or partial exercise of any such right,
power, privilege or remedy preclude, waive or otherwise affect any other or
further exercise thereof or the exercise of any other right, power,
D-14
privilege or remedy. Any waiver, permit, consent or approval of any kind by
Secured Party of any default hereunder, or any such waiver of any provisions or
conditions hereof, must be in writing and shall be effective only to the extent
set forth in writing. While an Event of Default exists: (a) Secured Party may,
at any time and at Secured Party's sole option, liquidate any time deposits
pledged to Secured Party hereunder, whether or not said time deposits have
matured and notwithstanding the fact that such liquidation may give rise to
penalties for early withdrawal of funds; (b) Secured Party may appropriate the
Security Fund and apply all proceeds toward repayment of the Obligations in such
order as Secured Party may from time to time elect or, at Secured Party's sole
option, place any proceeds in a cash collateral account; and (c) at Secured
Party's request, Pledgor will assemble and deliver all Pledged Owner's Shares
not already in the possession of Secured Party, and books and records pertaining
thereto, to Secured Party at a reasonably convenient place designated by Secured
Party. It is agreed that public or private sales, for cash or on credit, to a
wholesaler or retailer or investor, or user of property of the types subject to
this Agreement, or public auction, are all commercially reasonable since
differences in the sales prices generally realized in the different kinds of
sales are ordinarily offset by the differences in the costs and credit risks of
such sales. For any part of the Security Fund consisting of securities, Secured
Party shall be under no obligation to delay a sale of any portion thereof for
the period of time necessary to permit the issuer thereof to register such
securities for public sale under any applicable state or federal law, even if
the issuer thereof would agree to do so.
16. DISPOSITION OF PLEDGED OWNER'S SHARES. Secured Party shall not
transfer all or any part of the Pledged Owner's Shares or Security Fund except
in connection with the exercise of remedies as provided in Section 15 above. Any
proceeds of any disposition of any of the Pledged Owner's Shares or any part
thereof, shall be applied by Secured Party to the payment of expenses incurred
by Secured Party in connection with the foregoing, including reasonable
attorneys' fees, and the balance of such proceeds shall be applied by Secured
Party toward the payment of the Obligations in such order of application as
Secured Party may from time to time elect.
17. COSTS. EXPENSES AND ATTORNEYS' FEES. Pledgor shall pay to Secured
Party immediately upon demand the full amount of all payments, advances,
charges, costs and expenses, including reasonable attorneys' fees incurred by
Secured Party after the occurrence and during the continuance of any Event of
Default in exercising any right, power, privilege or remedy conferred by this
Agreement or in the enforcement thereof, including any of the foregoing incurred
in connection with any bankruptcy proceeding relating to Pledgor or the
valuation of the Pledged Owner's Shares
D-15
including without limitation, the seeking of relief from or modification of the
automatic stay or the negotiation and drafting of a cash collateral order. All
of the foregoing shall be paid to Secured Party by Pledgor with interest at a
rate per annum equal to the lesser of ten percent (10%) or the maximum rate
permitted by law.
18. GOVERNING LAW; SUCCESSORS. ASSIGNS. This Agreement shall be governed
by and construed in accordance with the laws of the state in which the Property
is located, and shall be binding upon and inure to the benefit of the heirs,
executors, administrators, legal representatives, successors and assigns of the
parties.
19. SEVERABILITY OF PROVISIONS. If any provision of this Agreement shall
be held to be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or any remaining provisions
of this Agreement.
20. NON-RECOURSE. The obligations of Pledgor hereunder with respect to
the Lease and the obligations of Tenant thereunder are specifically non-recourse
to Pledgor except to the extent of the Pledged Owner's Shares. In no event shall
Pledgor or any assets of Pledgor or any officer or director or affiliate of
Pledgor, (except for Tenant) be liable for a default by Tenant under the Lease
except to the extent of the Pledged Owner's Shares then pledged to Secured
Party.
D-16
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first written above.
PLEDGOR
_________________________ _______________________________
Xxxx X. Xxxxxxxx, Xx.
_________________________
_________________________ _______________________________
Xxxxx Xxxxxxxx
_________________________
RAINTREE COUNTRY CLUB, INC.,
an Ohio corporation
_________________________ By: ___________________________
Name: _________________________
_________________________ Title: ________________________
SECURED PARTY
GOLF TRUST OF AMERICA, L.P.
a Delaware limited partnership
GTA GP, Inc.
a Maryland corporation
Its: General Partner
_________________________ By:_____________________________
Name: W. Xxxxxxx Xxxxx, XX
_________________________ Title: President and Chief
Executive Officer
D-17
EXHIBIT D-1
Schedule of Adjustments in the Number of Pledged Owner's Shares
The Pledged Owner's Shares shall be adjusted as follows:
1. Increase of Pledged Owner's Shares. If Pledgor elects to receive
additional Owner's Shares as described in the Purchase Agreement, then the
Pledged Owner's Shares shall be increased such that the value of the Pledged
Owner's Shares held by Secured Party in the Security Fund shall equal the sum of
(i) the value of the initial Pledged Owner's Shares (valued as the date of the
Pledge Agreement), and (ii) fifteen percent (15%) of the Contingent Purchase
Price (such shares valued as of the date of the pledge). This adjustment to the
number of Pledged Owner's Shares shall occur simultaneously with the
circumstances triggering such an adjustment as described above, without the
necessity for any further action on the part of Pledgor or Secured Party.
Pledgor shall deliver to Secured Party certificates evidencing such additional
Pledged Owner's Shares immediately upon the occurrence of such triggering
circumstances.
2. Release of Pledged Owner's Shares. The Pledged Owner's Shares shall be
released and subtracted from the Security Fund in accordance with the following
schedule:
(a). Pledged Owner's Shares valued at $650,000 at such time as the Net
Operating Income with respect to the Property, shall have been, for a Fiscal
Year, at least one hundred twenty percent (120%) of all rent payable by Tenant
under the Lease for each such Fiscal Year (based on the rent adjusted in
accordance with the terms of the Lease, if applicable.
(b). One-third (1/3) of the remaining Pledged Owner's Shares (or an
equivalent dollar amount if held in cash or other securities) at such time as
the Net Operating Income with respect to the Property shall have been, for each
of the two (2) prior calendar years (tested annually commencing January 1,
1998), at least one hundred twenty percent (120%) of all rent payable by Tenant
under the Lease for each such calendar year (based on the rent adjusted in
accordance with the terms of the Lease, if applicable).
(c). An aggregate of two-thirds (2/3) of the remaining Pledged Owner's
Shares (or an equivalent dollar amount if held in cash or other securities) at
such time as the Net Operating Income with respect to the Property shall have
been, for each of the two (2) prior calendar years (tested annually commencing
January 1, 1998), at least one hundred and thirty percent (130%) of all rent
payable
D-1-1
by Tenant under the Lease for each such calendar year (based on the rent
adjusted in accordance with the terms of the Lease, if applicable).
(d). All of the Pledged Owner's Shares (or an equivalent dollar amount if
held in cash or other securities) provided that the Net Operating Income with
respect to the Property shall have been, for each of the two (2) prior calendar
years (tested annually commencing January 1, 1998), one hundred and forty
percent (140%) of all rent payable by Tenant under the Lease for each such
calendar year (based on the rent adjusted in accordance with the terms of the
Lease, if applicable).
(e). Subject to Section 5.5 of the Lease, promptly after the Expiration
Date (as defined in the Lease) and payment by Pledgor to Secured Party of all
amounts due under the Lease, Secured Party shall release all remaining Pledged
Owner's Shares, if any, to Pledgor.
This adjustment to the number of Pledged Owner's Shares shall occur
simultaneously with the circumstances triggering such an adjustment as described
above, without the necessity for any further action on the part of Pledgor or
Secured Party.
D-1-2
EXHIBIT E
ADJUSTMENTS TO CALCULATION OF GROSS GOLF REVENUE
FOR PRIVATE CLUBS
Not Applicable.
E-1
EXHIBIT F
CALCULATION
Calculation of Gross Golf Revenue and FB&M Revenuefor the Base Year on a
Quarter-by-Quarter Basis
GROSS GOLF REVENUE
1st Quarter 1997 $ 287,278
2nd Quarter 1997 $ 430,917
3rd Quarter 1997 $ 430,917
4th Quarter 1997 $ 287,277
----------
Total $1,436,389
FB&M REVENUE
1st Quarter 1997 $ 139,356
2nd Quarter 1997 $ 174,196
3rd Quarter 1997 $ 243,873
4th Quarter 1997 $ 130,356
----------
Total $ 696,781
F-1
EXHIBIT G
EXAMPLE OF MONTHLY OPERATING STATEMENT
F-2
EXHIBIT K
CONTINGENT PURCHASE PRICE FORMULA
A. DEFINITIONS. For purposes of this EXHIBIT K, the following terms shall
have the following meanings:
(1) "ADJUSTED NET OPERATING INCOME" means the Conversion Date Net
Operating Income, divided by 1.135.
(2) "CAPITALIZATION RATE" shall mean 10.50%.
(3) "COMPANY" means Golf Trust of America, Inc.
(4) "COMPANY'S FIRST CALL FFO" means the consensus FFO per share
estimate for the Company for the calendar year which includes the Conversion
Date, subtracting the Company's capital expenditure reserve per share as
estimated for that year as such estimate is reported by First Call (or, if First
Call is no longer in general use within the securities industry, by such other
reporting service as is then in general use within the securities industry)
divided by the average of the Company's closing share price for the thirty (30)
trading days immediately preceding the Conversion Date.
(5) "CONVERSION DATE" means a date after the second (2nd) full Fiscal
Year of the Initial Term and prior to the termination of the Initial Term that
is the fifteenth (15th) day following the date on which Company receives written
notice that Tenant has irrevocably elected to receive the Contingent Purchase
Price.
(6) "CONVERSION DATE CAPITALIZATION RATE" shall mean the Company's first
Call FFO, plus 200 basis points (but in no event less than the Capitalization
Rate).
(7) "CONVERSION DATE NET OPERATING INCOME" means the Gross Operating
Revenue for the Property LESS the Gross Operating Expenses for the Conversion
Year.
(8) "CONVERSION YEAR" means the Fiscal Year (as defined in the Lease)
immediately preceding the Conversion Date.
(9) "CONVERSION NOTICES" shall mean a written notice delivered by Tenant
to Company whereby Company elects to receive the Contingent Purchase Price. The
Conversion Notice may only be given once and must be given on or before April
15 of a calendar year. If the Conversion Notice is not given on or before the
end of the Initial Term, Tenant's right to receive the Contingent Purchase
Price shall automatically and irrevocably terminate. The Conversion Notice may
not be given prior to the expiration of the second (2nd) full Fiscal Year of the
Initial Term.
K1
(10) "GROSS OPERATING EXPENSES" means the gross operating expenses of the
Property for the Conversion Year, calculated in accordance with generally
accepted accounting principles consistently applied as adjusted in Schedule K-1.
For purposes of calculating Gross Operating Expenses, Company may make
discretionary adjustments on a line item basis to reflect stabilized Gross
Operating Expenses, including the following adjustments:
(a) annual capital replacement reserves shall be included, as
reasonably determined by Company;
(b) annual cash expenditures (including depreciation) for golf
carts shall be included, as reasonably determined by Company;
(c) extraordinary expenditures (such as to repair storm damage)
which are not anticipated to recur in the ordinary course shall be
excluded, as reasonably determined by Company;
(d) other adjustments to reflect stabilized Gross Operating
Expenses, as reasonably determined by Company shall be made; and
(e) depreciation, amortization and debt service shall be excluded.
For purposes of determining the Contingent Purchase Price, Gross Operating
Expenses will be adjusted upward by Company to the extent such expenses (or any
major component thereof) have decreased at a compound annual rate greater than
2% per annum from the Base Year to the Conversion Year or more than 3% (on a
year-to-year basis) from the year immediately preceding the Conversion year,
unless, Company shall determine that such expense reductions were of a nature so
as to be reasonably expected to be sustained.
(11) "GROSS OPERATING REVENUE" means the gross operating revenue of the
Property; including revenue related to the golf course operating, food and
beverage operations and sale of merchandise, for the Conversion Year, calculated
in accordance with general accepted account principles consistently applied as
adjusted in Schedule K-1. For purposes of determining the Contingent Purchase
Price, Gross Operating Revenue will be adjusted downward to the extent such
revenue has increased by more than 5.0% from the year immediately preceding the
Conversion Year to the Conversion Year, unless Company shall have reasonably
determined that such revenue increase can reasonably be expected to be
sustained. Factors to determine sustainability shall include factors such as
the creation of new demand generators (i.e., hotel development or condominium
development) and the non-recurring nature of any revenue (i.e., a one-time
tournament fee). Company
K2
shall further retain the right to make downward adjustments to Gross Operating
Revenue so as to establish reasonable expectations of future cash flow results.
(12) "NET INCREMENTAL INCOME AVAILABLE FOR CONTINGENT PURCHASE PRICE"
means the Adjusted Net Operating Income for the Conversion Year, taking into
account the increased rental payments due under the Lease as a result of
Company's election to receive the Contingent Purchase Price, including the
annual capital replacement reserve paid as additional rent.
(13) "NET OPERATING INCOME" means the Gross Operating Revenue of the
Property for the Conversion Year LESS the Gross Operating Expenses for the same
period.
B. CONTINGENT PURCHASE PRICE.
(1) Tenant shall have the right to receive the Contingent Purchase Price
by delivering the Conversion Notice to Company; provided that (i) the Tenant
under the Lease at the Property shall have paid Percentage Rent on an annual
basis for the prior calendar year, and (ii) at least one-half (1/2) of the
increase in the Adjusted Net Operating Income from the Base Year to the
Conversion year is attributable to an increase in Gross Operating Revenue (not
including food and beverage operations and sale of merchandise), as reasonably
determined by Company. The Contingent Purchase Price shall equal the Net
Incremental Income Available for Contingent Purchase Price divided by the
Conversion Date Capitalization Rate.
(2) Within forty-five (45) days of the Conversion Date, Company shall
deliver to Tenant the number of Owner's Units in Company that equals the
Contingent Purchase Price divided by the per share common stock price of the
Company on the Conversion Date.
C. EXAMPLE.
The calculation of the Contingent Purchase Price is attached as SCHEDULE
K-1 for purposes of illustration only.
Schedule K-1: Example of Contingent Purchase Price.
LANDLORD: GOLF TRUST OF AMERICA, L.P.
A Delaware limited Partnership
By: GTA GP, Inc., a Maryland
corporation
Its: General Partner
By:___________________________
K3
Name: W. Xxxxxxx Xxxxx, XX
Title: President and Chief
Executive Officer
TENANT: PRESTWICK GOLF CLUB, INC.
By:_____________________________
Name:___________________________
Title:__________________________
K4
SCHEDULE K-1
EXAMPLE OF CONTINGENT PURCHASE PRICE
K-1-1
