BASIC LEASE INFORMATION Second Amended and Restated Lease Agreement dated as of January 1, 2008, amending and restating the Amended and Restated Lease Agreement dated as of April 14, 2006
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BASIC LEASE INFORMATION
Second Amended and Restated Lease Agreement dated as of January 1, 2008, amending
and restating the Amended and Restated Lease Agreement dated as of April 14, 2006
and restating the Amended and Restated Lease Agreement dated as of April 14, 2006
Landlord:
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MHC TT Leasing Company, Inc., a Delaware corporation, together with any successor or assign. | |
Tenant:
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Thousand Trails Operations Holding Company, L.P., a Delaware limited partnership, together with any successor or assign permitted by this Lease. |
Commencement Date: November 10, 2004.
Effective Date of Restatement: January 1, 2008
Lease Expiration Date: January 15, 2020, which is the date which is fifteen (15) days
after the last day of the 181st full calendar month following the Commencement Date,
unless extended pursuant to paragraph 4(b) of the Lease.
Primary Term and any Extension Term Fixed Rent: The initial annual “Fixed Rent”
during the Primary Term and any applicable Extension Term of the Lease shall be defined as and
equal to and shall be payable monthly in advance (unless specifically set forth to be paid at a
different time below) as follows:
| (a) | Rent accruing prior to the Effective Date of Restatement shall be paid in accordance with the Original Lease. | |
| (b) | From the Effective Date of Restatement through December 31, 2008 (which period is herein referred to as the “First Restated Lease Period”): at the annual rate of $22,190,000.00, 1/12 of which shall be payable in advance on the first day of each calendar month, commencing on the Effective Date of Restatement. | |
| (c) | Subject to further adjustments as set forth in paragraph 5(e), beginning with January 1, 2009 and every January 1 thereafter (each, an “Adjustment Month”) during the Primary Term and any Extension Term, the annual Fixed Rent payable during the next twelve (12) full calendar month period commencing with the Adjustment Month shall be the greater of (i) the Rent determined in accordance with paragraph 5(e) of this Lease and (ii) the Fixed Rent payable during the twelve (12) full calendar months immediately preceding the Adjustment Month, increased (but not decreased) by the percentage increase in the Consumer Price Index from the fourteenth (14th) calendar month preceding such Adjustment Month through the second calendar month preceding such Adjustment Month, 1/12th of which shall be payable in advance on the first day of each calendar month in such Lease Year, commencing with the Adjustment Month in such Lease Year. Any period of the Lease less than a full year after the last full Lease Year shall accrue Rent equal to the pro rata amount of Rent accrued for each equal period of time in the last Lease Year. |
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Landlord address for payment by wire transfer to:
| Bank of America NT & SA Chicago, IL ABA# ▇▇▇▇▇▇▇▇▇ MHC Operating Limited Partnership Account # 7366901095 Notify: ▇▇▇▇▇ ▇▇▇▇▇▇▇ @ ▇▇▇-▇▇▇-▇▇▇▇ upon receipt. |
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Tenant Address:
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Thousand Trails Operations Holding Company, L.P. c/o Thousand Trails, L.P. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
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SECOND AMENDED AND RESTATED
Between
MHC TT Leasing Company, Inc.,
as Landlord
and
Thousand Trails Operations Holding Company, L.P.,
as Tenant
Effective Date of Restatement: January 1, 2008
THIS SECOND AMENDED AND RESTATED LEASE AGREEMENT is made and entered into as of the Effective
Date of Restatement set forth in the attached Basic Lease Information (this lease agreement, as
amended and restated, together with all amendments and supplements hereto, this “Lease”), by and
between MHC TT Leasing Company, Inc., a Delaware corporation, having an address at c/o Equity
LifeStyle Properties, Inc., Two North Riverside ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (together with
any successor or assign, hereinafter called “Landlord”) and Thousand Trails Operations Holding
Company, L.P., a Delaware limited partnership, having an address at c/o Thousand Trails, L.P., ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (together with any successor or assign permitted by
this Lease, hereinafter collectively called “Tenant”).
WHEREAS, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ entered into a Lease, dated as of November 10, 2004, and an
Amended and Restated Lease dated as of April 14, 2006, pursuant to which ▇▇▇▇▇▇ leased the Premises
set forth on Exhibit A-1(a) attached hereto from Landlord (collectively, the “Original
Lease”) all upon the terms and subject to the conditions set forth therein; and
WHEREAS, ▇▇▇▇▇▇ and Landlord desire to amend the Original Lease to, among other things: (i)
to increase the Fixed Rent payable hereunder and eliminate the payment of percentage rent payable
hereunder, (ii) to change the distributions permitted hereunder to a fixed amount and eliminate the
distributions based on an increase in the incremental value of Tenant and (iii) to make certain
other amendments to the Original Lease all as set forth herein;
NOW, THEREFORE, for good and valuable consideration and Landlord’s consent to the aforesaid
change in control, the receipt thereof is hereby acknowledged, the Lease is hereby amended and
restated in its entirety as set forth above and as follows:
1. DEFINITIONS
Capitalized terms used herein shall have the following meanings for all purposes of this Lease
and shall be equally applicable to both the singular and plural forms of the terms herein defined.
“Account Collateral” is defined in paragraph 31(k) of this Lease.
“Accounts”
means the Collection Account, the Concentration Account, the Chase Accounts
and the Reserve Accounts.
“Additional Rent” means all amounts, liabilities and obligations other than Fixed Rent
which Tenant assumes or agrees to pay under this Lease to Landlord or others.
“Adjustment Month” is defined and shall have the meaning specified in the Basic Lease
Information.
“Affiliates” means Persons (other than individuals) Controlled by, Controlling or
under Common Control with Tenant.
“After-Tax Basis” means, with respect to any payment required to be made to any
Person, the amount of such payment after giving effect to any additional amount or amounts which,
after deduction of all Federal, state and local taxes required to be paid by such Person
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(determined utilizing an effective marginal tax rate of forty percent (40%)), shall be equal
to such payment.
“AICPA” means the American Institute of Certified Public Accountants
“Alternative Credit Rating Agency” means if either or both of S&P and ▇▇▇▇▇’▇ no
longer exist or no longer assign Credit Ratings, such other nationally recognized statistical
credit rating agency designated by Landlord, acting in its sole discretion.
“Ancillary Income” means any point of sale income generated by Tenant or any direct or
indirect Subsidiary of Tenant in connection with the rendering of services, the rental of trailers,
equipment, boats or other items, the sale of food, supplies or products or the providing of other
amenities incidental or complementary to the operation of the campgrounds, together with any other
Gross Revenue. All income received or revenue generated by any of Tenant’s Subsidiaries in
connection with the conduct of business shall be deemed, for purposes of this Agreement, to be
Ancillary Income. Ancillary Income shall not include Membership Dues or Membership Contract
Receivables payments.
“Available Cash” means all cash that would have been available to Tenant on the third
(3rd) anniversary of the Effective Date of Restatement if the Fixed Rent payable under this Lease
during the period from the Effective Date of Restatement through the third (3rd) anniversary of the
Effective Date of Restatement had been $19,500,000.
“Bank” means Union Bank of California, N.A., a national banking association, in its
capacity as the bank or the securities intermediary (as defined in the UCC) with respect to any
Account and any successor to Union Bank of California, N.A.
“Basic Lease Information” means the page(s) preceding this Lease which are hereby
incorporated by reference.
“Budget” is defined in paragraph 30 of this Lease.
“Buffer Zone” means a 100 foot perimeter of land around all Campsite Land.
“Business Days” or “Business Day” means any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the State of Illinois or is a day on which
banking institutions located in such state are closed.
“Campsite Land” means only that portion of the Premises which is necessary for the
Tenant to operate in accordance with the Permitted Use, including any easement necessary to connect
such portion to a public road. Campsite Land shall include all improved amenities generally used
in the operation of a campground, such as swimming pools, club houses and camp stores.
“Canadian Accounts” means all deposit accounts of Tenant located and maintained at the
Bank of Montreal as more specifically identified on Exhibit I attached hereto, together
with any replacements, substitutions or new accounts located thereat and which are disclosed to
Landlord in writing.
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“Cash Management Bank” means Union Bank of California, N.A. or another financial
institution selected by Tenant and approved by Landlord (such approval not to be unreasonably
withheld or delayed).
“Casualty” means any damage or destruction caused to any Site by any reason, including
fire.
“Casualty Repair” is defined in paragraph 10 of this Lease.
“Casualty Threshold” is defined in paragraph 10 of this Lease.
“Chase Accounts” means all deposit accounts of Tenant located and maintained at Chase
Bank USA, N.A., as more specifically identified on Exhibit I attached hereto, together with
any replacements, substitutions or new accounts located thereat and which are disclosed to Landlord
in writing.
“Claims” or “claims” shall mean Liens (including lien removal and bonding
costs), liabilities, obligations, damages, losses, demands, penalties, assessments, payments, fees
of any Mortgagee, fines, claims, actions, suits, judgments, settlements, costs, expenses and
disbursements (including legal fees incurred and expenses and costs of investigation and
environmental remedial action) of any kind and nature whatsoever.
“Collection Account” is defined in paragraph 31(b)(i) of this Lease.
“Commencement Date” is defined and shall have the meaning specified in the Basic Lease
Information.
“Concentration Account” is defined in paragraph 31(b)(ii) of this Lease.
“Consumer Price Index” means the Consumer Price Index-U.S. City Average for All Urban
Consumers (all items) (1982–84=100) prepared by the Bureau of Labor Statistics of the United States
Department of Labor. In the event that such Consumer Price Index shall no longer be published with
a base year of 1982–84=100, Landlord shall compute, by reference to data available from such Bureau
of Labor Statistics, the actual percentage increase in consumer prices during the period or periods
in question. If said Consumer Price Index shall cease to be published, Landlord shall use the most
comparable index published by the United States Government. Where the Consumer Price Index is
required for a given month, and if the Consumer Price Index is not published for such month, then
the Consumer Price Index published for the month closest and prior to the designated month shall be
used.
“Contingent Obligation” means, as applied to any Person, any direct or indirect
liability of that Person: (i) with respect to any indebtedness, lease, dividend or other
obligation of another Person if the purpose or intent of the Person incurring such liability, or
the effect thereof, is to provide assurance to the obligee of such liability that such liability
will be paid or discharged, or that any agreements relating thereto will be complied with, or that
the holders of such liability will be protected (in whole or in part) against loss with respect
thereto; (ii) with respect to any letter of credit issued for the account of that Person or as to
which that Person is otherwise liable for reimbursement of drawings; (iii) under any foreign
exchange contract, currency swap agreement, interest rate swap agreement or other similar agreement
or
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arrangement designed to alter the risks of that Person arising from fluctuations in currency
values or interest rates; (iv) to make take-or-pay or similar payments if required regardless of
nonperformance by any other party or parties to an agreement; or (v) pursuant to any agreement to
purchase, repurchase or otherwise acquire any obligation or any property constituting security
therefor, to provide funds for the payment or discharge of such obligation or to maintain the
solvency, financial condition or any balance sheet item or level of income of another. The amount
of any Contingent Obligation shall be equal to the amount of the obligation so guaranteed or
otherwise supported or, if not a fixed and determined amount, the maximum amount so guaranteed.
“Control” (including with correlative meanings the terms “Controlling,” “Controlled
by” and “under Common Control with”) means the possession directly or indirectly of the power to
direct or cause the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
“Corporate Control Event” means any of the following: (i) a merger or consolidation
of Tenant, PATT or PA with another entity which results in a change in Control of Tenant, (ii) the
sale of all or substantially all the assets of Tenant, PATT or PA to another Person, or (iii) any
Person acquiring, directly or indirectly, any shares of any class of equity securities of Tenant,
PATT or PA or other interest of Tenant, PATT or PA.
“Credit Rating” means the senior unsecured debt rating issued by S&P and ▇▇▇▇▇’▇ or if
either or both no longer exist or no longer issue ratings then, for either or both as so
applicable, an Alternative Credit Rating Agency. All references to specific levels of a Credit
Rating mean such rating with a “stable” or “positive” outlook, but not a “negative” outlook or “on
watch” associated with such rating.
“Disability” means the failure of the relevant person to perform his material duties
with respect to Tenant by reason of injury, illness, disease or other permanent condition, from
which he is unlikely to recover, for a period of ninety (90) consecutive days.
“Eligible Account” means a segregated account maintained at a financial institution
reasonably acceptable to Landlord. An Eligible Account shall not be evidenced by a certificate of
deposit, passbook or other instrument.
“Environmental Laws” is defined in paragraph 26(b) of this Lease.
“Environmental Reports” is defined in paragraph 26(c) of this Lease.
“Equipment” means the equipment generally described on Exhibit B attached
hereto.
“Event of Default” is defined in paragraph 15 of this Lease.
“Excess Land” means all land now or hereafter owned by Landlord or its Affiliates in
or near the Premises which is not Campsite Land or a Buffer Zone. When ▇▇▇▇▇▇▇▇ has physically
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developed (i.e., Landlord has begun actual construction), in its sole discretion, any parcel
of Excess Land on which Property Taxes are billed on Excess Land and Campsite Land and the Buffer
Zones in a single tax bill, Landlord shall apply for separate tax bills and upon approval thereof
from appropriate tax authorities, Property Taxes on the Excess Land shall no longer be paid by
Tenant, and any parcel of Excess Land will cease to be considered part of the Underlying Premises
once Landlord has applied for, and received, a separate tax bill on such land.
“Excess Land Owner” is defined in paragraph 33(a) of this Lease.
“Excluded Taxes” means (i) any income or franchise taxes based upon, measured by, or
calculated with respect to net income or profits (but not including any franchise tax or sales tax
based upon gross receipts with respect to the Rent or amounts required to ensure that a payment is
made on an After-Tax Basis), inheritance, estate, succession, transfer or any similar taxes and
(ii) any property taxes attributable to the Excess Land, after Landlord has applied for, and
received separate tax bills from the appropriate tax authority.
“Existing ▇▇▇▇▇▇▇ Accounts” is defined in paragraph 31(b)(ii) of this Lease.
“Extension Terms” is defined in paragraph 4(b) of this Lease.
“Extension Term Commencement Date” is defined in paragraph 4(b) of this Lease.
“Fee Sites” means those Sites listed on Exhibit L attached hereto, each of
which is owned by affiliates of Landlord in fee simple and leased to Landlord pursuant to the
Master Lease.
“First Restated Lease Period” is defined and shall have the meaning specified in the
Basic Lease Information.
“Fixed Rent” is defined and shall have the meaning specified in the Basic Lease
Information.
“Frisco Accounts” means those certain deposit accounts maintained at ▇▇▇▇▇ Fargo Bank,
N.A. located in Frisco, Texas, as more particularly described on Exhibit I attached hereto.
“Frisco Lease” means that certain Office Lease Agreement dated entered into in 2002
between Sealy Parkwood, L.P., a Georgia limited partnership and Tenant or Tenant’s Affiliate.
“GAAP” means generally accepted accounting principles recognized as such in the
opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the Financial Accounting Standards Board.
“Governmental Authorization” means any approval, consent, license, permit, waiver or
other authorization issued, granted, given or otherwise made available by or under the authority of
any governmental body or pursuant to any Legal Requirement.
“Gross Revenues” means, for the applicable period, without duplication, all income
(including all Ancillary Income), revenues, issues, profits, deposits, proceeds of insurance
(including business interruption insurance), Membership Dues, Membership Contract Receivables
payments, Membership Contract termination or similar payments and all other
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payments received by or for the benefit of Tenant and any direct or indirect Subsidiary of
Tenant (including by Resort Parks International, LLC., a Georgia limited liability company (“RPI”),
and by Thousand Trails Management Services, Inc., a Nevada corporation (“TTMS”)), in cash or
current funds, together with any other consideration from any source whatsoever in connection with
such Person’s ownership, operation and management of its assets and business, including all
concession and rental income or income otherwise realized in connection with the provision of any
other service or conduct of any other business by such Person. For avoidance of doubt, Gross
Revenues shall include all income received in connection with the businesses of providing third
party management services for campgrounds or like facilities and/or the cross-selling, time share
management, brokerage or marketing services for campground facilities or like businesses by RPI or
TTMS, as applicable.
“Guarantors” means, collectively, all Persons holding partnership interests in Tenant,
together with any successor or assign permitted by this Lease, and each such person individually is
herein called a “Guarantor.”
“Guarantor Pledges” means that certain Pledge Agreement by all Guarantors in favor of
Landlord, dated as of November 10, 2004, pursuant to which Guarantors pledged one hundred percent
(100%) of the ownership interests in Tenant to Landlord.
“Guaranty” means that certain Secured Limited Guaranty dated as of November 10, 2004
herewith from all Guarantors to Landlord, pursuant to which, among other things, Guarantors
unconditionally guarantee the payment and performance of Tenant’s obligations under this Lease,
jointly and severally, all upon the terms and subject to the conditions set forth therein, as such
Guaranty is amended, modified or restated from time to time. The Guaranty is secured by the
Guarantor Pledges and ▇▇▇▇▇▇▇▇’s sole recourse under such Guaranty shall be to foreclose upon the
Guarantor Pledges as further set forth therein.
“Hazardous Materials” is defined in paragraph 26(b) of this Lease.
“Imposition” means the various taxes and other charges referred to in paragraph
6 of this Lease and the present and future governmental laws and regulations more specifically
described in paragraph 6(b) of this Lease.
“Improvements” means all of the buildings, structures, improvements, Equipment,
Personal Property, heating, ventilation, air conditioning, plumbing, electrical, mechanical,
utility and life safety systems, and all building fixtures therein (including parking areas and
driveways) now or hereafter located on the Campsite Land or the Buffer Zone and generally described
on Exhibits A-2(a) and A-2(b) attached hereto, other than and specifically excluding
Tenant’s Trade Fixtures.
The words “include,” “includes,” “including” and any other derivation of “include” means
“including but not limited to” unless specifically set forth to the contrary.
“Indemnified Party” is defined in paragraph 26(c) of this Lease.
“Indebtedness” means, as applied to any Person, without duplication, (a) any
indebtedness of such Person for borrowed money (whether by loan, the issuance and sale of debt
securities or the sale of any property or asset of such Person to another Person subject to an
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understanding or agreement, contingent or otherwise, to repurchase such property from such
Person), (b) any obligation under any lease (a “synthetic lease”) treated as an operating lease
under GAAP and as a loan or financing for United States income tax purposes or creditors rights
purposes, (c) notes payable and drafts accepted representing extensions of credit whether or not
representing obligations for borrowed money and any obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) any obligations of such Person for the deferred
purchase price of property or services, (e) any obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), (f) any obligations of such
Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as
capital leases or that portion of obligations with respect to capital leases that is properly
classified as a liability on a balance sheet in conformity with GAAP, (g) any obligations of such
Person as a result of any final judgment rendered against such Person or any settlement agreement
entered into by such Person with respect to any litigation unless such obligations are stayed upon
appeal (for so long as such appeal shall be maintained) or are fully discharged or bonded within
thirty (30) days after the entry of such judgment or execution of such settlement agreement, (h)
any obligations, contingent or otherwise, of such Person in respect of acceptances, letters of
credit or similar extensions of credit, (i) any Contingent Obligations, (j) any Indebtedness of
others referred to in clauses (a) through (i) above or clause (k) below guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such
Person through an agreement (1) to pay or purchase such Indebtedness or to advance or supply funds
for the payment or purchase of such Indebtedness, (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss, (3)
to supply funds to or in any other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or such services are
rendered) or (4) otherwise to assure a creditor against loss, and (k) any Indebtedness referred to
in clauses (a) through (j) above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts
and contract rights) owned by such Person, even though such Person has not assumed or become liable
for the payment of such Indebtedness.
“IT Assets” is defined on Exhibit A-1(c).
“Land” means the title and interest of Landlord in and to the fifty-nine (59)
locations of real estate described on Exhibit A-1(a) attached hereto, and any land lying in
the bed of any existing dedicated street, road or alley adjoining thereto, all strips and gores
adjoining thereto, and all rights, ways, easements, privileges and appurtenances thereunto
belonging, including all of Landlord’s right, title and interest in and to all other property
rights, tangible or otherwise, arising out of or connected with Landlord’s ownership thereof, but
excluding the Improvements thereon.
“Landlord” is defined in the first paragraph of this Lease.
“Landlord Capital Improvements” means those improvements made to the Improvements by
Landlord, or paid for by Landlord, pursuant to paragraph 34 of this Lease.
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“Landlord Parties” is defined in paragraph 6(a) of this Lease.
“Lease” is defined in the first paragraph of this Lease.
“Lease Expiration Date” is defined and shall have the meaning specified in the Basic
Lease Information.
“Leasehold Mortgage” means a leasehold mortgage, leasehold deed to secure debt,
leasehold deed of trust or other security instrument of like nature on Tenant’s interest under this
Lease given by Tenant to a Leasehold Mortgagee.
“Leasehold Mortgagee” means any holder of a Leasehold Mortgage with respect to
Tenant’s interest under this Lease, which Leasehold Mortgagee must also hold a lien on and security
interest in all directly and indirectly owned assets of Tenant, including all Membership Contracts
(subject to Landlord’s interest in such assets).
“Lease Year” means each Calendar Year commencing with 2008, which shall be the “first
lease year” and each twelve full calendar month period thereafter commencing with an Adjustment
Month.
“Legal Requirements” is defined in paragraph 12(a) of this Lease.
“Licenses” is defined in paragraph 12(a) of this Lease.
“Lien” means any lien, mortgage, pledge, charge, security interest or encumbrance of
any kind, or any other type of preferential arrangement that has the practical effect of creating a
security interest, including any arising under any conditional sale agreement, capital lease or
other title retention agreement.
“Loan Account” is defined in paragraph 31(c)(ii) of this Lease.
“Local Accounts” means (i) those deposit accounts maintained at banks in close
proximity to a campground and into which Ancillary Income derived from such campground is
deposited, as identified and more particularly described in Exhibit I attached hereto,
together with any additions thereto, replacements or substitutions thereof, which are disclosed to
Landlord in writing, (ii) the Frisco Accounts and (iii) the RPI Accounts.
Such term shall not include the Canadian Accounts.
“Lockboxes” is defined in paragraph 31(c)(ii) of this Lease.
“Master Lease” means those certain lease agreements listed on Exhibit Q
attached hereto pursuant to which Landlord leases or subleases all the Sites from affiliates of
Landlord.
“Master Lease Additional Obligations” is defined in paragraph 6(h) of this
Lease.
“Member” or “Members” means an owner or holder of a Membership as defined in
and pursuant to a Membership Contract.
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“Membership” means any “Membership” as such term is defined in any Membership
Contract.
“Membership Contract(s)” means any contract (including a retail installment contract),
agreement or other arrangement of Tenant’s Subsidiaries (whether entered into before, on or after
the date of this Lease), as such may be amended, supplemented or modified from time to time in
accordance with the provisions of this Lease, pursuant to which Tenant’s Subsidiaries sell
Memberships to individuals or other consumers, thereby entitling such individual or other consumer
to access and use, or providing for an ownership interest in, one or more of the campgrounds and
associated facilities and amenities included in the Premises.
“Membership Contract Receivables” means all of Tenant’s accounts and the proceeds
thereof (as defined under the UCC) eligible for recording as an asset in the financial statements
in which a Member is the account debtor or obligor and which represent the unpaid portion of the
purchase price of Memberships, as provided in the applicable Membership Contracts, excluding,
however, any Membership Dues or proceeds thereof.
“Membership Dues” means any annual or periodic dues or use fees due and payable by a
Member in accordance with the terms of a Membership Contract, other than retail installment or lump
sum payments made in connection with Membership Contract Receivables.
“Member Uses” means any existing use of Members, including (1) the use of trails for
hiking, horseback riding, cross-country skiing, ATVs and snowmobiles and (2) the use of waters for
fishing, swimming, boating, boat launching and related activities and (3) the use of open areas for
picnicking and games.
“Merger Transaction” means the transaction evidenced by that certain Agreement and
Plan of Merger, as amended, pursuant to which Thousand Trails Acquisition, Inc., merged into KTTI
Holding Company, Inc.
“MHC Trust” means MHC Trust, a Maryland real estate investment trust.
“MHC TT Master Lease” is defined in paragraph 6(h) of this Lease.
“Mid-Atlantic Lease” means that certain Amended and Restated Lease Agreement dated
January 1, 2008 between Mid-Atlantic Resorts, LLC and MHC Operating Limited Partnership
“Moody’s” means ▇▇▇▇▇’▇ Investors Services, Inc. and its successors.
“Mortgage” means a mortgage, deed to secure debt, deed of trust or other security
instrument of like nature or any ground or underlying lease or other document of like nature on all
or any portion of the Premises or the Underlying Premises given by Landlord or an affiliate of
Landlord to a Mortgagee.
“Mortgagee” means any holder of a Mortgage with respect to the Premises, Underlying
Premises, or any part thereof and which has been identified as a Mortgagee pursuant to a written
notice from Landlord to Tenant, which notice shall contain an executed copy of the Mortgage.
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“Net Casualty Proceeds” means the compensation and/or insurance payments net of the
reasonable expenses of collecting such amounts incurred by Landlord, any Mortgagee (but only in its
capacity as Proceeds Trustee) or Tenant, and received by any Mortgagee, Landlord or Tenant in
respect of any portion of the Premises by reason of and on account of a fire or other Casualty.
“Non-Fee Occupancy Agreements” means those leases or other occupancy agreements for
Non-Fee Sites described opposite each such Non-Fee Site listed on Exhibit M attached
hereto.
“Non-Fee Rent” means all sums which are due and payable by Landlord, as subtenant
pursuant to the Non-Fee Occupancy Agreements.
“Non-Fee Sites” means those Sites shown on Exhibit M attached hereto, which
Sites are leased by affiliates of Landlord pursuant to the Non-Fee Occupancy Agreements and leased
to Landlord pursuant to the Master Lease.
“Oakzanita Site” is defined in paragraph 9(a) of this Lease.
“Option Agreement” means that certain Amended and Restated Option Agreement dated as
of January 1, 2008, by and among Privileged Access, LP, (as Grantor), PATT Holding Company, LLC,
Outdoor World Resorts, LLC, PA-Trails Plus, LLC, Mid-Atlantic Resorts, LLC, and Trust (as
Optionee).
“Original Lease” is defined in the first WHEREAS clause of this Lease.
“Other Taxes” is defined in paragraph 6(b) of this Lease.
“Outdoor World Lease” means that certain Amended and Restated Lease Agreement dated
January 1, 2008 by and between Outdoor World Resorts, LLC and MHC Operating Limited Partnership.
“Overdue Rate” means the greater of: (i) twelve percent (12%) per annum or (ii) the
sum of five percent (5%) plus the prime interest rate as reported from time to time in The Wall
Street Journal, but in any event, if lower, the maximum annual interest rate allowed by law for
business loans (not primarily for personal, family or household purposes); provided, however, if
The Wall Street Journal is no longer in existence or ceases to publish such information, Landlord
shall use the prime interest rate as reported in a comparable publicly available publication
selected by Landlord in its sole discretion.
“PA” means Privileged Access, L.P.
“PA Option” means that certain option agreement, dated as of January 1, 2008, by and among
Privileged Access, LP, (as Grantor), PATT Holding Company, LLC, Outdoor World Resorts, LLC,
PA-Trails Plus, LLC, Mid-Atlantic Resorts, LLC, and PA-DC, LLC, a Delaware limited liability
company (as Optionee).
“PATT” means PATT Holding Company, LLC.
“PCAOB” means the Public Company Accounting Oversight Board.
“Per Diem Late Charge” means an amount equal to 0.1042% of the aggregate annual Fixed
Rent for the then current Lease Year. By way of example, the Per Diem Late Charge
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which would be payable on Fixed Rent during the First Restated Lease Period would be $23,122
per day.
“Permitted Distribution” is defined in paragraph 38(f) of this Lease.
“Permitted Encumbrances” means for each Site:
(a) Any of the following, which are not yet due and payable at the time in question: (i)
liens for water, sewer and other utility services and (ii) taxes, assessments and other
governmental charges (whether federal, state, local or foreign) and Property Taxes;
(b) The easements, rights-of-way, encroachments, encumbrances, restrictive covenants and other
matters affecting the title to the Premises or any part thereof (i) set forth on Exhibit C
attached hereto and (ii) which Landlord may, from time to time, place against the Premises pursuant
to paragraphs 2(c) and 33 of this Lease;
(c) Any Subordination, Non-Disturbance and Attornment Agreement(s), recorded or otherwise,
which are provided to Tenant pursuant to paragraph 17 of this Lease or as otherwise entered
into by and among Landlord, Tenant and any Mortgagee;
(d) Liens for taxes (whether federal, state, local or foreign) attributable to any taxable
period whether before, on or after the Commencement Date which are being contested in good faith in
accordance with the terms of this Lease by ▇▇▇▇▇▇ and for which ▇▇▇▇▇▇ has established adequate
reserves;
(e) This Lease and the rights, privileges and entitlements of Tenant hereunder;
(f) The Master Lease; and
(g) Any Leasehold Mortgage granted in accordance with paragraph 19 of this Lease.
“Permitted Investments” means any one or more of the following obligations or
securities: (a) having a predetermined fixed dollar amount of principal due at maturity that cannot
vary or change; (b) bearing interest that may either be fixed or variable but which is tied to a
single interest rate index plus a single fixed rate spread (if any) and moves proportionately with
that index; and (c) having the required ratings, if any, provided for in this definition:
(i) direct obligations of, and obligations fully guaranteed as to timely payment of principal
and interest by, the United States of America or any agency or instrumentality of the United States
of America, the obligations of which are backed by the full faith and credit of the United States
of America, that mature in thirty (30) calendar days or less after the date of issuance and that do
not have a “r” highlighter affixed to its rating;
(ii) time deposits, unsecured certificates of deposit, or bankers’ acceptances that mature in
thirty (30) calendar days or less after the date of issuance and are issued or held by any
depository institution or trust company incorporated or organized under the laws of the United
States of America or any State thereof and subject to supervision and examination by federal or
state banking authorities, so long as the commercial paper or other short-term debt obligations of
such depository institution or trust company are rated at least “A1” and “P1” by
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S&P and Moody’s, respectively, or such other rating as would not result in the downgrading,
withdrawal or qualification of the then-current Credit Rating to pass-through certificates, as
evidenced in writing, and that do not have a “r” highlighter affixed to its rating;
(iii) repurchase agreements or obligations with respect to any security described in clause
(i) above where such security has a remaining maturity of thirty (30) calendar days or less and
where such agreement or repurchase obligation has been entered into with a depository institution
or trust company (acting as principal) described in clause (ii) above;
(iv) money market funds that (i) are rated AAA by S&P and Aaa by Moody’s and (ii) have
portfolio assets of at least $3,000,000,000;
(v) debt obligations bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state thereof which mature in
thirty (30) calendar days or less from the date of issuance, which debt obligations have ratings
from Moody’s and S&P in the highest category possible, or such other rating as would not result in
the downgrading, withdrawal or qualification of the then-current Credit Rating to any pass-through
certificate and that do not have a “r” highlighter affixed to its rating; provided,
however, that securities issued by any particular corporation will not be Permitted
Investments to the extent that investment therein will cause the then-outstanding principal amount
of securities issued by such corporation and held in the accounts established hereunder to exceed
ten percent (10%) of the sum of the aggregate principal balance and the aggregate principal amount
of all Permitted Investments in such accounts; and
(vi) commercial paper (including both non-interest-bearing discount obligations and
interest-bearing obligations) payable on demand or on a specified date maturing in thirty (30) days
or less after the date of issuance thereof and which is rated in the highest category possible by
Moody’s and S&P and that does not have a “r” highlighter affixed to such rating.
“Permitted Use” is defined in paragraph 3 of this Lease.
“Person” means any individual, corporation, partnership, limited liability company,
joint venture, association, joint stock company, trust, trustee(s) of a trust, unincorporated
organization, or government or governmental authority, agency or political subdivision thereof.
“Personal Property” means the personal property described on Exhibit A-1(c)
attached hereto.
“PPSA” is defined in paragraph 41(n)(xv) of this Lease.
“Premises” is defined in paragraphs 2(a) and 2(b) of this Lease.
“Premises Condition Standard” is defined in paragraph 9(a) of this Lease.
“Primary Term” is defined in paragraph 4(a) of this Lease.
“Proceeds Trustee” means a federally insured bank or trust company designated by
Landlord, subject to the prior approval of Tenant, such approval not to be unreasonably withheld,
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delayed or conditioned; provided, however, if a Mortgage encumbers the
Premises or Underlying Premises, the Mortgagee thereunder may, at its option, be appointed Proceeds
Trustee for so long as such Mortgage remains outstanding and such Mortgagee does not control
Landlord and is not controlled by or under common control with Landlord.
“Promotions and Discounts Reserve” is defined in paragraph 39 of this Lease.
“Promotions and Discounts Reserve Account” is defined in paragraph
31(b)(ii)(B) of this Lease.
“Property Taxes” is defined in paragraph 6(a) of this Lease.
“Protest Notice” is defined in paragraph 5(e)(i) of this Lease.
“Renegotiated Rent” is defined in paragraph 5(e) of this Lease.
“Rent” is defined in paragraph 5(a)(iii) of this Lease.
“Reserve Account” is defined in paragraph 31(b)(ii)(A) of this Lease.
“Reserve Accounts” is defined in paragraph 31(b)(ii) of this Lease.
“Restoration Fund” is defined in paragraph 10 of this Lease.
“Restricted Holders” is defined in paragraph 38(h) of this Lease.
“Restricted Junior Payment” means: (i) any dividend or other distribution, direct or
indirect, on account of any shares of any class of stock or other equity security of, or ownership
interest in, Tenant or any of its Subsidiaries now or hereafter outstanding, except a dividend
payable solely in shares of that class of stock to the holders of that class; (ii) any redemption,
conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition
for value, direct or indirect, of any shares of any class of stock or other equity security of, or
ownership interest in, Tenant or any of its Subsidiaries now or hereafter outstanding; and (iii)
any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of stock or other equity security of, or ownership
interest in, Tenant or any of its Subsidiaries now or hereafter outstanding.
“RPI” is defined in the definition of Gross Revenues in this Lease.
“RPI Accounts” means those certain deposit accounts nos. 0042024190, 0042850552 and
7190001584, captioned the “RPI Accounts Payable Account,” the “RPI Receipts Account” and the “PRV
Receipts Account,” respectively, each maintained at the Bank and all as more particularly described
on Exhibit I attached hereto.
“S&P” means Standard & Poor’s Rating Service and its successors or assigns.
“Securities” means, collectively, all outstanding equity interests in Tenant and all
options, warrants or other rights of any kind to acquire such equity interests.
“Site” is defined in paragraph 2(b) of this Lease.
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“Site Assessments” is defined in paragraph 26(d) of this Lease.
“Site Reviewers” is defined in paragraph 26(d) of this Lease.
“Subleased Sites” means those Sites leased to Landlord pursuant to the Master Lease.
“Subleasing Subsidiaries” means those Subsidiaries listed on Exhibit H
attached hereto, which Subsidiaries sublease the Sites or portions thereof from Tenant pursuant to
the Tenant Subleases.
“Subordination, Non-Disturbance and Attornment Agreement” is defined in paragraph
17(a) of this Lease.
“Subsidiaries” means those corporations, partnerships, limited liability companies,
associations or other business entities which are wholly owned and controlled by Tenant. A true,
accurate and complete list of the Subsidiaries on the date hereof is set forth on Exhibit E
attached hereto. Exhibit E may be amended from time to time in accordance with the terms
hereof. Each of the Subsidiaries is herein individually called a “Subsidiary.”
“Subsidiary Guaranty” means that certain Secured Guaranty dated as of November 10,
2004 from each Subsidiary marked with an asterisk on Exhibit E attached hereto, including
the Subleasing Subsidiaries, together with any additional Subsidiaries permitted in
paragraph 38(a) of this Lease, to Landlord, pursuant to which, among other things, each
such Subsidiary unconditionally guarantees the payment and performance of Tenant’s obligations
under this Lease, all upon the terms and subject to the conditions set forth therein, as such
Subsidiary Guaranty is amended, modified or restated from time to time. The Subsidiary Guaranty is
secured by a lien on the assets of each Subsidiary, including each Subsidiary’s right, title and
interest in and under the Membership Contracts.
“Subsidiary Pledge” means all of those certain Pledge Agreements by all Subsidiaries
marked with an asterisk on Exhibit E attached hereto, including the Subleasing
Subsidiaries, together with any additional Subsidiaries permitted in paragraph 38(a) of
this Lease, in favor of Landlord, dated as of November 10, 2004, pursuant to which each such
Subsidiary has pledged one hundred percent (100%) of its assets to Landlord, including each such
Subsidiary’s right, title and interest in and under the Membership Contracts.
“Tenant” is defined in the first paragraph of this Lease.
“Tenant’s Business” is defined in paragraph 38(a) of this Lease.
“Tenant’s Equity Interest” means all of the equity interests in Tenant.
“Tenant’s Maintenance, Repair and Replacement Items” is defined in
paragraph 9(a) of this Lease.
“Tenant’s Manner of Operation” is defined in paragraph 39 of this Lease.
“Tenant Pledge” means that certain Pledge Agreement by Tenant in favor of Landlord,
dated of even date herewith, pursuant to which Tenant pledged to Landlord one hundred percent
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(100%) of the ownership interests in each Subsidiary marked with an asterisk on
Exhibit E attached hereto, including the Subleasing Subsidiaries, together with any
additional Subsidiaries permitted in paragraph 38(a) of this Lease.
“Tenant Subleases” means those sublease between the Subleasing Subsidiaries and
Tenant; the form of such sublease agreements is attached hereto as Exhibit H.
“Tenant’s Trade Fixtures” means all personal property of Tenant in or on the Premises,
affixed or not, which is not necessary for the operation of the Improvements, including tire racks
and handling equipment, pallets, fork lift trucks, lift racks, tools, office computers, and other
equipment or machines owned or leased from/by Tenant, and specifically excludes the Equipment.
“Term” is defined in paragraph 4(b) of this Lease.
“Transfer Event” means the direct or indirect acquisition of all or substantially all
of the equity interests in PA and PATT in an acquisition pursuant to which, upon consummation
thereof, none of ▇▇▇ ▇▇▇▇▇▇▇, any member of his immediate family or any Affiliate of ▇▇▇ ▇▇▇▇▇▇▇ or
any such family member holds any equity interest, directly or indirectly, in the acquiror.
“Treasury Rate” means the yield to maturity of a debt obligation of the United States
Treasury having a maturity date closest to but not earlier than the then-existing remaining Term of
this Lease (excluding any then-unexercised options for any Extension Terms) and, if more than one
have been issued with such maturity date, then using the debt obligation first issued on or closest
to the date of any termination by Landlord under this Lease.
“Trust” means MHC T1000 Trust, a Maryland real estate investment trust.
“TTMS” is defined in the definition of Gross Revenues in this Lease.
“UCC” means the Uniform Commercial Code as in effect in the State of Illinois.
“Underlying Premises” means, collectively, the interest in the Land, the Equipment,
the Personal Property and the Improvements, together with any easements, rights and appurtenances
in connection therewith or belonging to said Land and Improvements which is leased by an affiliate
of Landlord to Landlord under the Master Lease. When Landlord has physically developed (i.e.,
Landlord has begun actual construction), in its sole discretion, any parcel of Excess Land on which
Property Taxes are billed on Excess Land and Campsite Land and the Buffer Zones in a single tax
bill, Landlord shall apply for separate tax bills and upon approval thereof from appropriate tax
authorities, Property Taxes on the Excess Land shall no longer be paid by Tenant, and Excess Land
shall cease to be part of the Underlying Premises under this Lease at the time that Landlord shall
have received authorization for separate property tax bills from the appropriate tax authority.
“Variance Program” is defined in paragraph 39 of this Lease.
“Variance Program Deposit” is defined in paragraph 39 of this Lease.
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“Working Capital Indebtedness” means the Working Capital Loan incurred by Tenant owing
to Working Capital Lender pursuant to and in accordance with the Working Capital Loan Documents or
pursuant to any extensions, amendments, replacements or refinancings of the Indebtedness evidenced
by the Working Capital Loan Documents and any replacement or substitution for the Working Capital
Loan, provided, however, that such replacement or substitution shall not exceed the original
principal amount of the Working Capital Loan.
“Working Capital Lender” means LaSalle Bank, N.A., as maker of the Working Capital
Loan, or any successor lender under the Working Capital Loan Documents.
“Working Capital Loan” means that certain $10,000,000 loan from LaSalle Bank, N.A. to
Tenant.
“Working Capital Loan Documents” means that certain loan agreement between Tenant and
the Working Capital Lender, and any notes issued in connection therewith by Tenant or any of its
Subsidiaries payable to the Working Capital Lender relating to a working capital loan facility of
Tenant, and all other instruments, documents and agreements executed and delivered by any Affiliate
to, for or in favor of the Working Capital Lender in connection with the transactions contemplated
under any of the foregoing documents and includes all documents that evidence or secure extensions,
amendments, replacements and refinancings of the Working Capital Indebtedness.
2. DEMISE OF PREMISES AND OTHER RIGHTS
(a) Landlord hereby demises and leases to Tenant and Tenant hereby leases and rents from
Landlord the Premises, IN ITS “AS IS” CONDITION, SUBJECT TO THE EXISTING STATE OF TITLE (WITHOUT
EXPRESS OR IMPLIED WARRANTY OF LANDLORD WITH RESPECT TO THE CONDITION, QUALITY, REPAIR OR FITNESS
OF THE PREMISES FOR A PARTICULAR USE OR TITLE THERETO, ALL SUCH WARRANTIES BEING HEREBY DISCLAIMED
BY LANDLORD AND WAIVED AND RENOUNCED BY TENANT). The “Premises” consists of, collectively,
Landlord’s interest in the Campsite Land and Buffer Zones, the Equipment, the Personal Property and
the Improvements, together with any easements, rights and appurtenances in connection therewith or
belonging to said Campsite Land and Buffer Zones and Improvements. The foregoing disclaimer in
this paragraph 2(a) has been negotiated by Landlord and Tenant, each being represented by
independent counsel, and is intended as a complete negation of any representation or warranty by
Landlord, express or implied, with respect to the condition, quality, repair, or fitness of the
Premises for a particular use, or title thereto.
(b) The Premises includes the Land, Equipment, Improvements and the Personal Property located
at each separate location; each individually is herein called a “Site,” and together are herein
called the “Sites.”
(c) Landlord may, in its sole discretion, (1) encumber any of the Premises or any Excess Land
with such cross easements, reciprocal easements, agreements, covenants, restrictions and other
encumbrances, and (2) at Landlord’s expense, connect to any sewer, water, waste water, electric,
gas, telephone, or any other system or service then existing on or servicing the Premises, in each
case as Landlord may deem necessary, desirable or advisable to facilitate
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future development of the Excess Land adjacent to such Premises, and nothing contained herein
shall limit or restrict such right, provided that (i) if any such easement, agreement, covenant,
restriction or other encumbrance impairs the value of the Premises, Landlord shall (a) first
attempt to mitigate such impairment and, if such cannot be mitigated, then (b) pay to Tenant an
amount equal to such impairment for the remaining Term of the Lease, as Landlord and Tenant may
agree, and (ii) with respect to any such connection to any sewer, water or waste water system then
existing on or servicing the Premises that if sufficient capacity does not exist for such
connection, Landlord shall increase such capacity and provided that Landlord shall, on demand, pay
Tenant for Landlord’s pro rata share of ongoing expenses related to such utility hook-up. Tenant
acknowledges and agrees that this Lease shall be subject and subordinate to all such instruments
and no further instrument of subordination shall be required for its operation.
(d) Tenant may, from time to time, request that Landlord grant or obtain easements over the
Excess Land for water, electricity, gas and telephone lines to serve and benefit the Premises
adjacent to the Excess Land, at such locations and containing such provisions as Landlord may
approve in its sole discretion. All costs and expenses for any such utility easements shall be
paid by Tenant.
(e) Tenant may, from time to time, request that Landlord grant or obtain for Tenant and its
employees, invitees and guests of the Premises a temporary license, which shall be revocable by
Landlord at any time upon ten (10) days’ notice, to establish, maintain and use any Member Uses on
the Excess Land adjacent thereto, at such locations and subject to such rules and agreements
(including insurance requirements) as Landlord may approve in its sole discretion. All costs and
expenses for such temporary licenses shall be paid for by Tenant as Additional Rent. Effective as
of the Commencement Date, Landlord hereby grants to Tenant and its employees, invitees and guests a
temporary license, which shall be revocable by Landlord at any time upon ten (10) days’ notice, to
use and maintain in the locations on the Excess Land used and maintained as of the Commencement
Date, all existing Member Uses in effect as of the Commencement Date. Tenant agrees to extend the
insurance coverage otherwise required by this Lease to include all uses by Tenant and its
employees, invitees and guests of the Excess Land.
3. USE
Tenant shall, subject to applicable zoning restrictions and any recorded covenants or
restrictions in the public records on the Commencement Date, use and occupy the Premises, including
each Site, only (i) predominantly as a membership campground, together with minimal daily stay
campground uses, (ii) for cabin rentals, (iii) pursuant to Tenant’s extended vacation, stay and
storage programs, (iv) in connection with lease arrangements entered into with farmers prior to the
date hereof and (v) for other lawful purposes which are both associated with and related thereto
(including the following ancillary uses: ATM machines, cafeteria/food service and laundry
facilities) (collectively, the “Permitted Use”). Tenant shall not use, suffer or permit the
Premises, or any portion thereof, to be used by Tenant, any third party or the public, as such,
without restriction or in such manner as would be reasonably likely to materially adversely affect
Landlord’s title to or interest in the Premises, or in such manner as would be reasonably likely to
make possible a material claim or claims of adverse possession by the public, as such, or third
parties, or of implied dedication of the Premises, or any portion thereof.
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4. TERM
(a) The primary term of this Lease (the “Primary Term”) shall be for a period of approximately
fifteen (15) years, beginning on the Commencement Date and ending on the Lease Expiration Date.
(b) Tenant shall have the right, at its option, to extend the Primary Term of this Lease for
two (2) consecutive extension terms (the “Extension Terms”), each being five (5) years in length.
Each Extension Term shall commence on the day after the expiration of the preceding term (each, the
“Extension Term Commencement Date”) and shall expire on the fifth (5th) anniversary of
the Lease Expiration Date in the case of the first (1st) Extension Term, and on the
tenth (10th) anniversary of the Lease Expiration Date in the case of the second
(2nd) Extension Term. The options to extend the Term of this Lease as described above
shall not be deemed exercised by Tenant unless at least twenty-four (24) months prior to the Lease
Expiration Date for the Primary Term or at least twenty-four (24) months prior to the expiration of
the Extension Term for the first (1st) Extension Term, Tenant shall have delivered
written notice to Landlord of Tenant’s irrevocable election to so extend this Lease at the end of
the Primary Term or the first (1st) Extension Term, as applicable. Tenant’s failure to
deliver one (1) such timely notice to Landlord shall terminate all future Extension Terms, if any,
following the Extension Term to which such notice specifically relates. Subject to the provisions
of paragraph 5 of this Lease, the terms and conditions of this Lease shall apply to each
Extension Term with the same force and effect as if such Extension Term had originally been
included in the Primary Term of the Lease. The right of Tenant to exercise its rights with respect
to the Extension Terms shall be conditioned upon (i) this Lease being in full force and effect and
no Event of Default then existing as of the Lease Expiration Date (for the first (1st)
Extension Term), or expiration of the first (1st) Extension Term (for the second
(2nd) Extension Term), and (ii) the effective extension of the term under the
Mid-Atlantic Lease and Outdoor World Lease in accordance with the respective terms of the
Mid-Atlantic Lease and Outdoor World Lease through the first (1st) Extension Term (for the first
(1st) Extension Term) and through the second (2nd) Extension Term (for the second (2nd) Extension
Term). The Primary Term, together with any Extension Term with respect to which Tenant properly
exercises its option, and for which the conditions related thereto are satisfied, shall constitute
the “Term” of this Lease.
(c) Notwithstanding the foregoing, the Term of this Lease with respect to the Non-Fee Sites
shall terminate upon the expiration of the applicable Non-Fee Occupancy Agreements and Tenant shall
not be entitled to any abatement or reduction of Rent, nor shall the obligations of Tenant under
this Lease be affected, by reason of such expiration of the applicable Non-Fee Occupancy
Agreements. Landlord shall not without ▇▇▇▇▇▇’s consent amend the Non-Fee Occupancy Agreements
such that Tenant would be materially adversely affected.
5. RENTAL; GUARANTY
(a) Tenant shall pay to Landlord the following amounts as Rent for the Premises:
(i) During the Term of this Lease, Tenant shall pay to Landlord as fixed annual rent, the
amount of annual fixed rent specified in the Basic Lease Information (as defined therein, “Fixed
Rent”).
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(ii) During the Term of this Lease, Tenant shall pay, as a portion of Additional Rent, all
sums, including Non-Fee Rent, due and payable by the tenant under the Non-Fee Occupancy Agreements.
Simultaneously with its payment of Non-Fee Rent, Tenant shall give to Landlord evidence,
satisfactory to Landlord, of having done so.
(iii) Throughout the Term of this Lease, Tenant shall pay, as Additional Rent, all other
amounts of money and charges required to be paid by Tenant under this Lease, whether or not such
amounts of money or charges are designated Additional Rent. As used in this Lease, “Rent” shall
mean and include all Fixed Rent and Additional Rent payable by Tenant in accordance with this
Lease.
(b) It is the intention of Landlord and Tenant that the Fixed Rent payable by Tenant to
Landlord during the entire Term of this Lease shall be absolutely net of all costs and expenses
incurred in connection with the management, operation, maintenance, repair and replacement of the
Premises and Underlying Premises in accordance with this Lease. Landlord shall have no obligations
or liabilities whatsoever with respect to the management, operation, maintenance, repair or
replacement of the Premises and Underlying Premises during the Term of this Lease, and Tenant shall
manage, operate, maintain, repair and replace the Premises and Underlying Premises in accordance
with this Lease and shall pay all costs and expenses incurred in connection therewith before such
costs or expenses become delinquent other than Landlord’s obligations for Landlord Capital
Improvements. Without limiting the generality of the foregoing, throughout the entire Term of this
Lease, Tenant shall pay, as Additional Rent, all premiums for all property and liability insurance
covering the Premises and Underlying Premises required under this Lease, all Property Taxes and all
Other Taxes that accrue during or are allocable to the Term of this Lease, and all Property Taxes
and Other Taxes allocable to any period of time prior to the Term of this Lease. As part of the
annual Budget submitted to Landlord pursuant to paragraph 30 hereof, Tenant shall provide
Landlord a schedule of all such premiums, Property Taxes and Other Taxes payable in the relevant
fiscal year and simultaneously with the payment of such premiums, Property Taxes and Other Taxes,
Tenant shall give to Landlord evidence, satisfactory to Landlord, of having done so.
(c) Tenant shall pay all Fixed Rent to Landlord, in advance, on or before the first Business
Day of each and every calendar month during the Term of this Lease (other than the payment due on
the Commencement Date which is due as set forth in the Basic Lease Information) without notice,
demand, deduction or offset, in lawful money of the United States of America, to the wire transfer
address of Landlord specified in the Basic Lease Information, or to such other accounts and/or
Person or Persons or at such other place or places as Landlord may from time to time designate in
writing (or otherwise so there are collected funds available to Landlord on the due date). If the
Fixed Rent is paid more than five (5) Business Days after its due date, the Per Diem Late Charge
shall be due and payable for each day thereafter until the Fixed Rent is paid in full. Tenant
shall pay all Additional Rent when due. Tenant shall pay all Fixed Rent to Landlord without
notice.
(d) ▇▇▇▇▇▇ acknowledges and agrees that it was a condition precedent to Landlord entering into
this Lease that Landlord receive the Guaranty from Guarantors and the Subsidiary Guaranty from the
Subsidiaries marked with an asterisk on Exhibit E attached hereto, which Guaranty and
Subsidiary Guaranty are being entered into contemporaneously with the execution of this Lease.
Tenant hereby represents and warrants to Landlord as of the date hereof and
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covenants to Landlord that throughout the Term of this Lease, Guarantors shall be bound by the
terms of the Guaranty to Landlord and the Subsidiaries marked with an asterisk on Exhibit E
attached hereto shall be bound by the terms of the Subsidiary Guaranty to Landlord.
(e) On the day after the last day of the First Restated Lease Period, and, thereafter, on
every one (1) year anniversary thereof, the Fixed Rent payable hereunder (the “Renegotiated Rent”)
shall be adjusted and Tenant shall make payments of Rent as so adjusted beginning with each such
anniversary. Landlord and ▇▇▇▇▇▇ shall renegotiate the Fixed Rent payable hereunder, and in
accordance with this paragraph 5(e).
(i) On January 1, 2009 or on any one (1) year anniversary of such date, Landlord shall be
entitled to provide tenant with written notice of Renegotiated Rent. The Renegotiated Rent as set
forth in such notice shall be an amount equal to the fair rental value of the Premises as
reasonably determined by Landlord based on (I) a review of recent sales and/or rentals of
comparable properties (which, for the avoidance of doubt, may include properties purchased, sold or
rented by Landlord or one or more of its affiliates) and/or (II) the methodology employed by
Landlord in valuing RV parks and similar properties generally (it being understood that such
methodology shall not be based, in whole or in part, upon the actual income or profits of Tenant,
any sublessee or any affiliate thereof from the Premises). Such written notice shall be
accompanied by all relevant data upon which the Renegotiated Rent is based. Within thirty (30)
days following such delivery, Tenant shall deliver to Landlord a copy of a written resolution of
its board of directors either accepting or protesting the Renegotiated Rent. In the event such
notice indicates disagreement as to the Renegotiated Rent (a “Protest Notice”), such Protest Notice
shall set forth in reasonable detail the basis of such disagreement. If the Tenant shall fail to
deliver a written resolution of its board of directors either accepting or protesting the
Renegotiated Rent within the prescribed period, then Landlord may give Tenant written notice of
such failure, and if a written resolution is not delivered within five (5) days of such written
notice, Tenant shall be deemed to have accepted the Renegotiated Rent determination delivered by
Landlord and all Fixed Rent hereunder shall be equal to the Renegotiated Rent as determined by
Landlord.
(ii) If Tenant timely delivers a Protest Notice and Tenant and Landlord are unable to resolve
any disagreement as to the Renegotiated Rent within fifteen (15) days following ▇▇▇▇▇▇▇▇’s receipt
of the Protest Notice, Landlord and Tenant agree to submit the matter to the following appraisal
process. Within ten (10) days after the expiration of the fifteen (15) day period following
Landlord’s receipt of the Protest Notice, the parties shall each appoint an appraiser to determine
the Renegotiated Rent based on the fair rental value of the Premises
determined on the basis described in clause (i) above. Each appraiser so selected
shall be either an MAI appraiser or a licensed real estate broker, each having at least ten (10)
years’ prior experience in the appraisal or leasing of comparable property and with a working
knowledge of current rental rates and practices. If the two appraisers cannot agree upon the
Renegotiated Rent for the Premises within twenty (20) days after their appointment, then, within
ten (10) days after the expiration of such twenty (20)-day period, the two appraisers shall select
a third appraiser meeting the above criteria. Once the third appraiser has been selected as
provided for above, then such third appraiser shall within ten (10) days after appointment make its
determination of the Renegotiated Rent. The average of the two closest determinations of the
Renegotiated Rent shall be used as the Fixed Rent and shall be binding on both Landlord and Tenant.
Landlord and Tenant shall each bear the cost of its appraiser and shall share the cost of the
third. If the Renegotiated Rent is not determined until after the beginning of the Lease Year to
which it applies pursuant to this Lease, the Tenant shall, within five (5) days of the final
determination of Renegotiated Rent, make payment to Landlord of any shortfall in the amount of
Fixed Rent due under this Lease.
6. TAXES
(a) Tenant shall pay, as Additional Rent, all Property Taxes prior to the assessment of any
interest or penalty for late payment and shall indemnify and hold harmless Landlord, its
affiliates, officers, directors, stockholders, employees, representatives, members, partners and
agents, and the successors and assigns of each of the foregoing (collectively, the “Landlord
Parties”), on an After-Tax Basis from and against any such Property Taxes (including any
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penalties and interest with respect thereto) (subject to Tenant’s rights under this
paragraph 6(a) to make payment thereof in installments or under paragraph 6(e) of
this Lease to protest Property Taxes); provided, however, if and to the extent
Landlord or Mortgagee is holding Tenant’s estimated payments thereof pursuant to paragraph
6(f) of this Lease and provided no Event of Default then exists, Landlord, pursuant to
paragraph 31(e)(iii), or Mortgagee shall instead make such payments timely on Tenant’s behalf;
provided, further, if any such Property Taxes may legally be paid in installments,
Tenant may, at its option, pay such Property Taxes in such installments together with any interest
due thereon provided that Tenant shall have paid all such installments, or provided to Landlord or
Mortgagee such amounts as are necessary for the payment of all such installments, prior to the
expiration or earlier termination of this Lease. “Property Taxes” shall mean all taxes,
assessments, excises, levies, fees and charges (and any tax, assessment, excise, levy, municipal
service fee, fee or charge levied wholly or partly in lieu thereof or as a substitute therefor or
as an addition thereto) of every kind and description, general or special, ordinary or
extraordinary, foreseen or unforeseen, secured or unsecured, whether or not now customary or within
the contemplation of Landlord and Tenant, that are levied, assessed, charged, confirmed or imposed
by any public or government authority on or against, or otherwise with respect to, the Premises and
Underlying Premises, or any part thereof or any personal property used in connection with the
Premises and Underlying Premises, including ▇▇▇▇▇▇▇▇’s franchise taxes based upon gross receipts
with respect to the receipt of Rent (but not including Excluded Taxes). Property Taxes shall not
include any Other Taxes or Excluded Taxes arising out of or levied in connection with this Lease,
in each case, of Landlord, unless and only to the extent levied or assessed against Landlord in
whole or in part in lieu of, as a substitute for, or as an addition to any Property Taxes. When
Landlord has physically developed (i.e., Landlord has begun actual construction), in its sole
discretion, any parcel of Excess Land on which Property Taxes are billed on Excess Land and
Campsite Land and the Buffer Zones in a single tax bill, Landlord shall apply for separate tax
bills and upon approval thereof from appropriate tax authorities, Property Taxes on the Excess Land
shall no longer be paid by Tenant.
(b) Tenant shall pay, as Additional Rent, all Other Taxes prior to the assessment of any
interest or penalty for late payment and shall indemnify and hold harmless Landlord and the
Landlord Parties on an After-Tax Basis from and against any such Other Taxes (including any
penalties and interest with respect thereto) (subject to Tenant’s rights under this paragraph
6(b) and paragraph 6(e) of this Lease to make payment in installments or to protest
Other Taxes); provided, however, if Landlord or Mortgagee is holding Tenant’s
estimated payments thereof pursuant to paragraph 6(f) of this Lease and provided no Event
of Default then exists, Landlord, pursuant to paragraph 31(e)(iii), or Mortgagee shall
instead make such payments timely on Tenant’s behalf; provided, further, if any
such Other Taxes may legally be paid in installments, Tenant may, at its option, pay such Other
Taxes in such installments together with any interest due thereon provided that Tenant shall have
paid all such installments, or provided to Landlord or Mortgagee such amounts as are necessary for
the payment of all such installments, prior to the expiration or earlier termination of this Lease.
“Other Taxes” shall mean all taxes, assessments, excises, levies, fees and charges, including all
payments related to the cost or occupation of providing facilities or services, whether or not now
customary or within the contemplation of Landlord and Tenant, that are levied, assessed, charged,
confirmed or imposed by any public or government authority upon, or measured by, or reasonably
attributable to (i) the Premises and Underlying Premises, (ii) the cost or value of Tenant’s
equipment, furniture, fixtures and other personal property located in the Premises or the cost or
value of any leasehold improvements
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made in or to the Premises by or for Tenant, regardless of whether title to such improvements
is vested in Tenant or Landlord, (iii) any amount payable under this Lease, including any gross
receipts tax or excise tax levied by any public or government authority with respect to the receipt
of any such amount, (iv) the possession, leasing, operation, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Premises, or (v) this transaction or any document to
which Tenant is a party creating or transferring an interest or an estate in the Premises or
Underlying Premises. “Other Taxes” shall not include any Property Taxes or any Excluded Taxes
arising out of or levied in connection with this Lease, in each case, of Landlord, unless and only
to the extent levied or assessed against Landlord in whole or in part in lieu of, as a substitute
for, or as an addition to any Other Taxes.
(c) Except for any Excluded Taxes imposed on or with respect to the Rent, if at any time
during the Term any method of taxation shall be such that there shall be levied, assessed or
imposed on Landlord, or on the Rent, or on the Premises, Underlying Premises, or any portion
thereof, a capital levy, gross receipts tax on the Rent, occupational license tax or franchise tax,
based upon gross receipts with respect to the Rent, but not including any income or franchise taxes
based upon, measured by or calculated with respect to net income or profits, Tenant, to the extent
permitted by law, covenants to pay and discharge the same, it being the intention of the parties
hereto that the Fixed Rent to be paid hereunder shall be paid to Landlord absolutely net without
deduction or charge of any nature whatsoever, foreseeable or unforeseeable, ordinary or
extraordinary, or of any nature, kind or description, except for Excluded Taxes and as otherwise
expressly provided in this Lease. Notwithstanding the foregoing, to the extent Landlord incurs any
tax liability pursuant to the Trails Reorganization (as defined in the Merger Transaction) or for a
Pre-Closing Taxable Period (as defined in the Merger Transaction), payment of such tax liabilities,
if any, shall not be governed by this Lease but shall be governed by the Merger Transaction.
(d) Tenant covenants to furnish Landlord, within fifteen (15) calendar days after written
request by ▇▇▇▇▇▇▇▇, official receipts of the appropriate taxing authority, if any, or other
appropriate proof reasonably satisfactory to Landlord, evidencing the payment of all Impositions.
(e) Tenant shall have the right to contest the amount or validity, in whole or in part, of any
Property Tax or Other Tax or to seek a reduction in the valuation of the Premises and/or Underlying
Premises, as assessed for real estate property tax purposes, by appropriate proceedings diligently
conducted in good faith (but only after the deposit or payment (whether under protest or otherwise)
of any amounts required by applicable law to stay or prevent collection activities). Landlord
shall not be required to join in any proceeding referred to in this paragraph 6(e) except
to the extent required by law, in which event Landlord shall, upon written request by ▇▇▇▇▇▇, join
in such proceedings or permit the same to be brought in its name, all at Tenant’s expense.
▇▇▇▇▇▇▇▇ agrees to provide, at ▇▇▇▇▇▇’s expense, whatever assistance Tenant may reasonably require
in connection with any such contest. Tenant covenants that Landlord shall not suffer or sustain
any costs or expenses (including counsel fees) or any liability in connection with any such
proceeding. No such consent shall subject Landlord to any civil liability or the risk of any
criminal liability or forfeiture.
(f) Intentionally Omitted..
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(g) Landlord will, within thirty (30) calendar days after receipt, reimburse Tenant for any
refund of Property Taxes or Other Taxes received by Landlord or Mortgagee as a result of any tax
contest relating to the Term.
(h) In addition to the forgoing (and without duplication), if (x) Landlord or any affiliate of
Landlord incurs any tax, assessment, excise, lien, fee, charge or liability, including franchise,
lease and income taxes, arising from the Master Lease from MHC TT, Inc., a Delaware corporation, as
landlord, to Landlord, as tenant (the “MHC TT Master Lease”) (including the items described in
clause (i) of the definition of Excluded Taxes, but excluding property taxes attributable to the
Excess Land, collectively, the “Master Lease Additional Obligations”) and (y) Landlord and its
Affiliates would not have incurred the Master Lease Additional Obligations had Landlord owned the
fee interest in the Fee Sites owned by MHC TT, Inc. and the MHC TT Master Lease not existed, then
Tenant shall pay the Master Lease Additional Obligations on an After-Tax Basis, as Additional Rent,
prior to the assessment of any interest or penalty for late payment and shall indemnify and hold
harmless Landlord and the Landlord Parties on an After-Tax Basis from and against any claims for
payment thereof.
7. NET LEASE; NON-TERMINABILITY
(a) This is an absolutely net lease and the Fixed Rent, Additional Rent and all other sums
payable hereunder by ▇▇▇▇▇▇ shall be paid without notice (except as expressly provided herein),
demand, set-off, counterclaim, abatement, suspension, deduction or defense. It is the intention of
the parties hereto that the Fixed Rent shall be an absolutely net return to Landlord throughout the
Term of this Lease. In order that such Rent shall be absolutely net to Landlord, Tenant shall pay
when due, and save and hold harmless Landlord and the Landlord Parties on an After-Tax Basis from
and against, any and all costs, charges and expenses attributable to the Premises or Underlying
Premises, including all fines, fees, penalties, charges (including governmental charges),
assessments, sewer rents, Impositions, insurance premiums as may be required from time to time by
Landlord or Mortgagee pursuant to this Lease, utility expenses, carrying charges, costs, expenses
and obligations of every kind and nature whatsoever, general and special, ordinary and
extraordinary, foreseen and unforeseen, the payment for which Landlord or Tenant is, or shall
become, liable by reason of any rights or interest of Landlord or Tenant in, to or under the
Premises or Underlying Premises or this Lease or in any manner relating to the ownership, leasing,
operation, management, maintenance, repair, rebuilding, use or occupation of the Premises or
Underlying Premises, or of any portion thereof; provided, however, that nothing
herein contained shall be construed as imposing upon Tenant any obligation to pay any Excluded
Taxes of Landlord arising out of, or levied in connection with, this Lease or Landlord’s right or
interest in the Premises or the Rent or require Tenant to make the Landlord Capital Improvements.
All fees and expenses incurred in connection with the negotiation and execution of this Lease,
including all legal, accounting, financial advisory, title insurance, environmental inspection,
consulting and all other fees and expenses of third parties incurred by a Person in connection with
the negotiation of the terms and conditions of this Lease shall be the obligation of the respective
Person incurring such fees and expenses; provided, however that Tenant, on the one hand, and
Landlord, on the other hand, shall share equally the costs related to preparation of surveys of the
Sites listed on Exhibit F attached hereto.
(b) This Lease shall not terminate, nor shall Tenant have any right to terminate this Lease,
except as expressly provided in paragraph 14 of this Lease, nor shall Tenant be entitled to
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any abatement or reduction of Rent hereunder except as required by paragraph 14 of
this Lease, nor shall the obligations of Tenant under this Lease be affected, by reason of (i) any
damage to or destruction of all or any part of the Premises from whatever cause; (ii) subject to
paragraph 14 of this Lease, the taking of the Premises, Underlying Premises, or any portion
thereof by condemnation, requisition or eminent domain proceedings; (iii) the prohibition,
limitation or restriction of Tenant’s use of all or any part of the Premises, or any interference
with such use; (iv) any eviction by paramount title or otherwise; (v) Tenant’s acquisition or
ownership of all or any part of the Premises or Underlying Premises otherwise than as expressly
provided herein; (vi) any default on the part of Landlord under this Lease, or under any other
agreement to which Landlord and Tenant may be parties; (vii) Landlord becoming dispossessed of any
portion of the Premises subleased by Landlord pursuant to the Non-Fee Occupancy Agreements; or
(viii) any other cause whether similar or dissimilar to the foregoing, any present or future law to
the contrary notwithstanding. It is the intention of the parties hereto that the obligations of
Tenant hereunder shall be separate and independent covenants and agreements, that the Fixed Rent,
the Additional Rent and all other sums payable by Tenant hereunder shall continue to be payable in
all events and that the obligations of Tenant hereunder shall continue unaffected unless the
requirement to pay or perform the same shall have been terminated pursuant to any express provision
of this Lease. ▇▇▇▇▇▇ agrees that Tenant shall not be relieved of the obligations to pay the Fixed
Rent or any Additional Rent in case of damage to or destruction of or condemnation (except as
expressly provided in paragraph 14 of this Lease) of the Premises or the Underlying
Premises.
(c) Tenant agrees that it shall remain obligated under this Lease in accordance with its
terms, and that it shall not take any action to terminate, rescind or void this Lease,
notwithstanding (i) any bankruptcy, insolvency, reorganization, composition, readjustment,
liquidation, dissolution or winding-up or other proceeding affecting Landlord or its successor in
interest, or (ii) any action with respect to this Lease which may be taken by any trustee or
receiver of Landlord or its successor in interest or by any court in any such proceeding.
(d) Tenant waives all rights which may now or hereafter be conferred by law (i) to quit,
terminate or surrender this Lease or the Premises or any part thereof, or (ii) to any abatement,
suspension, deferment or reduction of the Fixed Rent, Additional Rent or any other sums payable
under this Lease, except as otherwise expressly provided herein.
8. SERVICES
Tenant shall, at Tenant’s sole cost and expense, be responsible for supplying the Premises
with electricity, heating, ventilating and air conditioning, water, natural gas, lighting,
replacement for all lights, restroom supplies, telephone service, window washing, security service,
janitor, pest control and disposal services (including, if applicable, hazardous and biological
waste disposal), and such other services as Tenant determines to furnish to the Premises. Landlord
shall not be in default hereunder or be liable for any damage or loss directly or indirectly
resulting from, nor shall the Fixed Rent, or Additional Rent be abated or a constructive or other
eviction be deemed to have occurred by reason of, the installation, use or interruption of use of
any equipment in connection with the furnishing of any of the foregoing services, any failure to
furnish or delay in furnishing any such services, whether such failure or delay is caused by
accident or any condition beyond the control of Landlord or Tenant or by the making of repairs or
improvements to the Premises, or any limitation, curtailment, rationing or
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restriction on use of water, electricity, gas or any form of energy serving the Premises,
whether such results from mandatory governmental restriction or voluntary compliance with
governmental guidelines. Tenant shall pay the full cost of all of the foregoing services and all
other utilities and services supplied to the Premises as Additional Rent.
9. REPAIRS AND MAINTENANCE; REPLACEMENT
(a) Tenant shall, at its own sole cost and expense, keep the Premises, including each Site
therein, in substantially the same order and condition as existed on the Commencement Date
(provided that the order and condition existing on the Commencement Date shall be deemed to include
all repairs to the Site commonly known as Oakzanita Springs in San Diego County, California (the
“Oakzanita Site,” which Tenant shall use its best efforts to complete promptly), have been
completed) (the “Premises Condition Standard”), at all times on and after the Commencement Date to
and including the date of the termination of the Term, by lapse of time or otherwise. Tenant shall
timely and properly maintain, repair and replace all of the Premises and all of its component parts
(the “Tenant’s Maintenance, Repair and Replacement Items”), including parking surfaces and stripes,
driveways, roads, private streets, picnic tables, campground sites and/or pads, pedestals,
campground and recreational vehicle infrastructure, all landscaping, mechanical systems, electrical
and lighting systems, plumbing and sewage systems, wastewater systems, water plants and related
facilities, septic system facilities, fixtures and appurtenances, interior and exterior walls,
roofs, foundations, floor slabs, columns and structural elements so as to maintain each Site in
accordance with the Premises Condition Standard and to preserve and protect the useful life,
utility and value of such components, and in all events so as to preserve the effectiveness of any
warranty relating thereto. Tenant shall deliver to Landlord a written statement showing all
removals and replacements of such systems or components with a cost exceeding $100,000.00 during
the preceding calendar year. Landlord may cause independent private inspectors to make inspections
of any building and building systems on the Premises or segments thereof to determine Tenant’s
compliance under this paragraph 9. Tenant shall pay all reasonable costs of each
inspection at each Site by or on behalf of Landlord in each calendar year; and, if such inspection
by Landlord reveals that the Premises, or any material portion thereof, including any equipment
thereon, is not substantially in the condition required by this Lease, then Tenant shall pay for
such additional inspections performed by Landlord through the inspection approving the condition of
such Premises as being substantially in conformity with this Lease.
(b) Landlord may, but is not required to, enter the Premises at any time during normal
business hours and make such repairs, alterations, improvements, additions, replacements or
maintenance as Landlord deems necessary to cure any Event of Default of Tenant hereunder which
remains uncured after the expiration of any notice and cure period provided under this Lease, as
applicable, in a diligent fashion, and Tenant shall pay Landlord as Additional Rent forthwith (and
in any event within thirty (30) days) after being billed for same by Landlord the cost thereof plus
an administrative fee of five percent (5%) of such cost, which bill shall be accompanied by
reasonable supporting documentation. Such amounts shall bear interest at the Overdue Rate from the
date of expenditure by Landlord to the date of repayment by ▇▇▇▇▇▇.
(c) It is intended by Tenant and Landlord that Landlord shall have no obligation, in any
manner whatsoever, to repair or maintain the Premises (or any fixture or equipment therein),
whether structural or nonstructural, all of which obligations are intended, as between Landlord
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and ▇▇▇▇▇▇, to be those of Tenant, except for Landlord’s obligations with respect to Landlord
Capital Improvements. Tenant expressly waives the benefit of any statute now or in the future in
effect which would otherwise afford Tenant the right to make repairs at Landlord’s expense or to
terminate this Lease because of Landlord’s failure to keep the Premises in good order, condition
and repair.
(d) Tenant shall use commercially reasonable efforts to maintain on each Site, and deliver to
Landlord upon expiration or termination of this Lease, then current operating manuals and original
warranties (to the extent applicable) for the Equipment and Personal Property then located on such
Site, specifically excluding, in all cases, Tenant’s Trade Fixtures at the Premises which may be
and which are subsequently removed by Tenant upon expiration or earlier termination of this Lease.
10. DESTRUCTION OF OR DAMAGE TO PREMISES
If any Site is damaged by fire or other Casualty during the Term of this Lease, Tenant shall
(a) repair such damage and restore such Site to substantially the same or better condition as
existed before the occurrence of such fire or other Casualty, using materials of the same or better
grade than that of the materials being replaced (herein, a “Casualty Repair”), and this Lease shall
remain in full force and effect. Such repair and replacement by Tenant shall be done in accordance
with paragraph 23 of this Lease and the standards of paragraph 9 of this Lease and
Tenant shall, at its expense, obtain all permits required for such work. An architect or engineer
selected by Landlord shall review (except with respect to the existing damage at the Oakzanita
Site), at Tenant’s expense, all plans and specifications for any Casualty Repair with a cost equal
to or greater than $50,000 and all draw requests related thereto. In no event shall Fixed Rent or
Additional Rent ▇▇▇▇▇, nor shall this Lease terminate by reason of such damage or destruction.
Provided that no Event of Default by Tenant shall then exist under this Lease (and no event has
occurred which, with the passage of time, the giving of notice, or both, would constitute an Event
of Default), and provided Tenant has: (i) delivered to Landlord plans and specifications and a
budget for such Casualty Repair (all of which Landlord shall have approved), and (ii) deposited
with Landlord or the Proceeds Trustee cash in the sum equal to the excess, if any, of the total
cost set forth in such approved budget over the amount of insurance proceeds received on account of
such Casualty, then to the extent such proceeds are made available to Landlord from Mortgagee,
Landlord shall make available to Tenant all insurance proceeds actually received by Landlord on
account of such Casualty, for application to the costs of such approved repair and restoration, as
set forth below.
For all Casualty Repairs, the following shall apply:
As used herein the “Casualty Threshold” means $50,000; provided, however that the Casualty
Threshold shall not apply to the existing damage at the Oakzanita Site. If the Net Casualty
Proceeds are less than the Casualty Threshold at the time of the applicable fire or other Casualty,
such Net Casualty Proceeds shall be paid to Tenant to apply to the cost of restoration. If the Net
Casualty Proceeds are equal to or greater than the Casualty Threshold at the time of the applicable
fire or other casualty, such Net Casualty Proceeds shall be paid to the Proceeds Trustee (herein
called the “Restoration Fund”) for release to Tenant as restoration progresses, subject to and in
accordance with paragraph 23(c) of this Lease. If Landlord encumbers the Premises or the
Underlying Premises with a Mortgage, the Mortgagee thereunder may, at its
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option, be appointed Proceeds Trustee for so long as such Mortgage remains outstanding and
such Mortgagee does not Control Landlord and is not Controlled by or under Common Control with
Landlord. Insurance proceeds shall be deposited in an interest bearing account and interest shall
be distributed to Tenant upon completion of said installation, repair, replacement or rebuilding,
provided no default has occurred and is continuing hereunder. All checks drawn on said account
shall be signed by the Proceeds Trustee. Insurance proceeds shall be disbursed to Tenant by the
Proceeds Trustee under the following procedure:
(i) No more frequently than once per calendar month, Tenant may request that Landlord disburse
to Tenant such insurance proceeds as are requested by Tenant to pay for all costs incurred by
Tenant for repair and restoration work on the damaged Site that was performed during the
immediately preceding calendar month. Tenant’s request shall certify that all work for which
reimbursement is requested was performed in substantial compliance with the plans and
specifications approved by Landlord pursuant to paragraph 23 of this Lease and all
applicable laws, and shall include reasonably satisfactory evidence of the costs incurred by Tenant
and unconditional partial (as to the amount received compared to percentage of completion) or final
lien releases, as applicable, in form and substance required by applicable law executed by all
mechanics, materialmen, laborers, suppliers and contractors who performed any portion of the repair
and restoration work or supplied materials; and
(ii) Within ten (10) Business Days after receiving Tenant’s request, Landlord shall approve or
disapprove Tenant’s request, which approval shall not be unreasonably withheld, delayed or
conditioned, by written notice to ▇▇▇▇▇▇. If Landlord approves all or any portion of a request and
Landlord has received (and not previously disbursed) insurance proceeds for such costs, then
Landlord’s approval shall include a check in the amount approved by Landlord. If Landlord
disapproves all or any portion of a request, then ▇▇▇▇▇▇▇▇’s notice shall state the reasons for
that disapproval. ▇▇▇▇▇▇▇▇’s failure to deliver a notice approving or disapproving a request shall
be conclusively deemed ▇▇▇▇▇▇▇▇’s disapproval of the request.
11. INSURANCE, HOLD HARMLESS AND INDEMNIFICATION
(a) To the fullest extent permitted by law, Landlord and the Landlord Parties shall not be
liable to Tenant or any Affiliate for any damage to or loss or theft of any property or for any
bodily or personal injury, illness or death of any Person in, on or about the Premises arising at
any time and from any cause whatsoever, unless and to the extent due to the gross negligence or
willful misconduct of the Landlord Parties. Except as provided in this paragraph 11(a),
Tenant waives all claims against Landlord and the Landlord Parties arising from any liability
described in this paragraph 11(a).
(b) Tenant hereby agrees to indemnify and defend Landlord and the Landlord Parties against and
hold each such Person harmless on an After-Tax Basis from all claims, demands, liabilities,
damages, losses, costs and expenses, including attorneys’ fees and disbursements, arising from or
related to any use or occupancy of the Premises, or any condition of the Premises,
or any default in the performance of Tenant’s obligations hereunder, or any damage to any
property (including property of employees and invitees of Tenant) or any bodily or personal
injury, illness or death of any person (including employees and invitees of Tenant) occurring in,
on or about the Premises or any part thereof or any part of the buildings or the land constituting
a part of the Premises arising on or after the date hereof from any cause whatsoever, or occurring
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outside the Premises when such damage, bodily or personal injury, illness or death is caused
by any act or omission of Tenant or its agents, officers, employees, contractors, invitees or
licensees or any default in the performance of Tenant’s obligations under the Frisco Lease. This
paragraph 11(b) shall survive the termination of this Lease with respect to any damage,
bodily or personal injury, illness or death or any default in the performance of Tenant’s
obligations under the Frisco Lease occurring prior to such termination.
(c) Tenant shall at all times provide, maintain and keep in force or cause to be provided,
maintained and kept in force, at no expense to Landlord, the following policies of insurance with
respect to the Premises, Underlying Premises and Tenant, as applicable (collectively, the
“Policies”):
(i) Property insurance on an “all risk” and “special perils” basis (special form cause of
loss) for one hundred percent (100%) of the replacement value of each Site, as applicable, with
customary deductibles as approved by Landlord. The policy shall contain the following
endorsements: (a) Replacement Cost (without any deduction made for depreciation); (b) Agreed Amount
(waiving co-insurance penalties); (c) a standard landlord clause acceptable to Landlord; and (d) a
standard mortgagee clause acceptable to Mortgagee, if any. Each such policy shall also include the
following coverage if applicable: (i) comprehensive boiler and machinery coverage in amounts as
determined by Landlord; (ii) earthquake and earth movement for the full replacement cost of the
subject Site, or the amount as would (in light of the risks insured and the cost of premiums for
such insurance) in Landlord’s judgment be maintained by a prudent operator of property similar in
use and locale; and (iii) flood insurance if the Improvements located on a Site are located in a
special flood hazard area as designated by the Director of the Federal Emergency Management Agency,
in sufficient amounts as reasonably determined by Landlord, provided that such coverage in such
amounts is generally available at commercially reasonable costs.
(ii) Insurance against rent loss, extra expense or business interruption, in amounts
satisfactory to Landlord. The perils covered by this policy shall be the same as those accepted on
each Site including flood, earthquake and earth movement.
(iii) Commercial general liability insurance covering bodily injury and property damage
occurring on, in or about each Site and, to the extent applicable, any adjoining streets,
sidewalks, and passageways arising out of or connected with the possession, use, leasing,
operation, or condition of any Site. Policy limits shall be not less than $1,000,000 per
occurrence, $2,000,000 per location in the aggregate with respect to a Site and $1,000,000 per
occurrence, $2,000,000 per location in the aggregate with respect to Tenant. Such coverage shall
include but not be limited to premises, operations, products/completed operations, personal injury
and liquor liability (if applicable).
(iv) Umbrella excess liability insurance for not less than $25,000,000 per occurrence with
respect to Tenant, subject to an aggregate cap of not less than $25,000,000.
(v) Worker’s Compensation and other statutory coverage as required by the state where each
Site is located to protect Tenant, Landlord and any Mortgagee against claims for injuries sustained
in the course of employment at such Site.
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(vi) When and to the extent required by Landlord, fidelity insurance and insurance against loss
or damage by any other risk commonly insured against by Persons (or which would be insured against
by a reasonably prudent Person) occupying or using like properties in the locality or localities in
which a Site is situated.
(d) All insurance policies required pursuant to this Lease shall be endorsed to provide that:
(i) Landlord is named as an additional insured with respect to the all risk property coverage; as a
loss payee with respect to all rent/business interruption/extra expense coverage; as additional
insured on all liability coverage, with the understanding that any obligation imposed upon the
insureds (including the liability to pay premiums) shall be the sole obligation of Tenant and not
of any other insured; (ii) Mortgagee, its successors and/or assigns, is named as mortgagee with
respect to the all risk property coverage; as a loss payee with respect to all rent/business
interruption/extra expense coverage; and as additional named insured on all liability coverage,
with the understanding that any obligation imposed upon the insureds (including the liability to
pay premiums) shall be the sole obligation of Tenant and not of any other insured; (iii) the
interests of Landlord or any Mortgagee shall not be invalidated by any action or inaction of Tenant
or any other Person, and such policies shall insure Landlord and any Mortgagee regardless of any
breach or violation by Tenant or any other Person of any warranties, declarations or conditions in
such policies; (iv) the insurer under each such policy shall waive all rights of subrogation
against Landlord or any Mortgagee, any right to set-off and counterclaim and any other right to
deduction, whether by attachment or otherwise; (v) such insurance shall be primary and without
right of contribution of any other insurance carried by or on behalf of Landlord or any Mortgagee
with respect to its interest in the Premises or Underlying Premises; (vi) if such insurance is
canceled for any reason whatsoever, including nonpayment of premium or, if any substantial
modification, change or reduction is made in the coverage which affects the interests of Landlord
or any Mortgagee, such cancellation, modification, change or reduction in coverage shall not be
effective as to Landlord or Mortgagee until thirty (30) days after receipt by Landlord and
Mortgagee of written notice sent by registered mail from such insurer; (vii) any such insurance
shall be endorsed to provide inasmuch as the policy is written to cover more than one insured, all
terms, conditions, insuring agreements and endorsements with the exception of limits of liability,
shall operate in the same manner as if there were a separate policy covering each insured; and
(viii) if required by Landlord or Mortgagee and available on commercially reasonable terms, such
insurance shall contain “cut-through” endorsements providing Landlord and Mortgagee with direct
access to any re-insurers.
(e) Tenant shall deliver to Landlord and Mortgagee a copy of each insurance policy with
further evidence of such insurance acceptable to Landlord and Mortgagee, together with a copy of
the declaration page for each such policy. If requested by Landlord or Mortgagee, binders for
renewal policies shall be provided no later than fifteen (15) days prior to the expiration of each
policy and, when available and requested by Landlord or Mortgagee, copies of such policies. Tenant
shall deliver a renewed policy or policies, or duplicate original or originals thereof, marked
“premium paid,” or accompanied by such other evidence of payment satisfactory to Landlord and
Mortgagee with standard non-contributory mortgagee clause in favor of and acceptable to Landlord
and Mortgagee. Upon request of Landlord or Mortgagee, Tenant shall cause its insurance underwriter
or broker to certify to Landlord or Mortgagee in writing that all the requirements of this Lease
applicable to Tenant governing insurance have been satisfied. Tenant shall comply promptly with
and conform, in all material respects, to (i) all provisions of each such insurance policy and (ii)
all requirements of the insurers applicable to Tenant as
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respects use, occupancy, possession, operation, maintenance, alteration or repair of a Site.
Tenant shall not use or permit the use of any Site in any manner that would permit any insurer to
cancel any insurance policy or void coverage required to be maintained by this Lease. No insurance
policy may provide for assessments to be made against Landlord or Mortgagee. If a policy permits
assessments against others, such policy must waive any right to a Lien upon a Site and no such
assessments may result in a Lien against such Site. The insurance coverage required under this
paragraph 11 may be effected under a blanket policy or policies covering the Underlying
Premises and other properties and assets not constituting a part of the Underlying Premises;
provided that any such blanket policy shall specify the portion of the total coverage of such
policy that is allocated to the Underlying Premises, and any sublimits in such blanket policy
applicable to the Underlying Premises, which amounts shall not be less than the amounts required
pursuant to this paragraph 11 and which shall in any case comply in all other respects with
all of the requirements of this paragraph 11. Tenant shall comply in all material respects
with all insurance requirements and shall not bring or keep or permit to be brought or kept any
article upon any Site or cause or permit any condition to exist thereon (subject to and to the
extent within Tenant’s control, exercising commercially reasonable measures consistent with prudent
business practice to ensure compliance herewith by members of the public, including Members, having
access to the Premises) which would be prohibited by any insurance requirement, or would invalidate
insurance coverage required hereunder to be maintained by Tenant on or with respect to any part of
any Site pursuant to this paragraph 11. Notwithstanding anything to the contrary contained
herein, it is expressly understood and agreed that any insurance which Tenant shall cause any
tenant to provide that shall otherwise be in compliance with all of the terms and conditions of
this paragraph 11 shall satisfy Tenant’s obligations with respect thereto hereunder.
Tenant shall not take out separate insurance contributing in the event of loss with that required
to be maintained pursuant to this paragraph 11 unless such insurance complies with this
paragraph 11. All insurance policies shall be in form, with endorsements, risk coverages,
deductibles and amounts and maintained with companies approved by Landlord and Mortgagee, such
approval not to be unreasonably withheld or delayed. Without limiting Landlord’s and Mortgagee’s
ability to approve the aforementioned, an insurance company shall be reasonably satisfactory if
such insurance company (a) has a rating of at least A with financial size of Class X or better as
specified in Best’s Key Rating Guide, (b) is licensed or authorized to do business, as required
under applicable law, in the State where the applicable Sites are located and (c) a claims-paying
ability rating by S&P of not less than “AA” and an equivalent rating by another Rating Agency.
Tenant shall not settle or accept any payment of any claims under any insurance policy insuring
against casualty, rent loss and business interruption without twenty (20) days’ advance written
notice to Landlord and Mortgagee, if any. Landlord and Mortgagee shall not, by the fact of
approving, disapproving, accepting, preventing, obtaining or failing to obtain any insurance, incur
any liability for or with respect to the amount of insurance carried, the form or legal sufficiency
of insurance contracts, solvency of insurance companies, or payment or defense of lawsuits, and
Tenant hereby expressly assumes full responsibility therefor and all liability, if any, with
respect thereto. If Tenant fails to provide to Landlord or Mortgagee the policies of insurance
required by this paragraph 11, Landlord or Mortgagee may (but shall have no obligation to),
upon written notice to Tenant, procure such insurance or single-interest insurance for such risks
covering Landlord’s and Mortgagee’s interest and Tenant shall pay all premiums thereon promptly
upon demand by Landlord and Mortgagee, and until such payment is made by Tenant, the amount of all
such premiums shall bear interest at the Overdue Rate and shall constitute Additional Rent. Any
such insurance purchased by Landlord or Mortgagee may, but need not, protect ▇▇▇▇▇▇’s interests.
The coverage purchased by Landlord or Mortgagee may
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not pay any claim made by Tenant or any claim that is made against Tenant in connection with
the Premises or Underlying Premises. Tenant may later cancel any insurance purchased by Landlord
or Mortgagee, but only after providing Landlord and Mortgagee with evidence that ▇▇▇▇▇▇ has
obtained insurance as required by this Lease. If Tenant fails to obtain any such insurance and
Landlord or Mortgagee purchase such insurance for the Premises and/or Underlying Premises, Tenant
will be responsible for the costs of that insurance, including interest and other charges imposed
by Landlord or Mortgagee in connection with the placement of the insurance, until the effective
date of the cancellation or expiration of the insurance. The costs of the insurance may be added
as Additional Rent. The costs of the insurance may be more than the cost of insurance Tenant is
able to obtain on its own.
(f) Landlord acknowledges that, notwithstanding anything to the contrary contained herein,
Tenant’s existing insurance and insurance carriers as of the Commencement Date meet the
requirements set forth in this paragraph 11; provided each Subleasing Subsidiary is and
shall remain a named insured on all insurance policies. In no event shall Landlord or any
Mortgagee require any additional insurance pursuant to this paragraph 11 that is not
commercially reasonable with respect to similarly situated properties.
12. COMPLIANCE WITH LAWS, COVENANTS AND NON-FEE OCCUPANCY AGREEMENTS
(a) Tenant shall, and shall cause its Subsidiaries to, throughout the Term promptly comply or
cause compliance with or remove or cure any violation of any and all present and future laws,
including the Americans with Disabilities Act of 1990, as the same may be amended from time to time
(“ADA”), ordinances (zoning or otherwise), orders, rules, regulations and requirements of all
federal, state, municipal and other governmental bodies having jurisdiction over the Premises and
the Membership Contracts and the appropriate departments, commissions, boards and officers thereof,
and the orders, rules and regulations of each Board of Fire Underwriters where the Premises are
situated, or any other body now or hereafter constituted exercising lawful or valid authority over
the Premises and the Membership Contracts (collectively, “Legal Requirements”), any portion
thereof, or the sidewalks, curbs, roadways, alleys or entrances adjacent or appurtenant to the
Premises, or exercising lawful authority with respect to (1) the use or manner of use of the
Premises, or such adjacent or appurtenant facilities, and (2) the sale of and continuing
obligations under the Membership Contracts, and whether the compliance, curing or removal of any
such violation and the costs and expenses necessitated thereby shall have been foreseen or
unforeseen, ordinary or extraordinary, and whether or not the same shall be presently within the
contemplation of Landlord, Tenant or any Tenant Subsidiary or shall involve any change in
governmental policy, or require structural or extraordinary repairs, alterations or additions by
Tenant or any Tenant Subsidiary and irrespective of the amount of the costs thereof. Tenant, at
its sole cost and expense, shall comply and shall cause its Subsidiaries to comply with all
agreements, contracts, easements, restrictions, reservations or covenants, including the Membership
Contracts, if any, running with the land or hereafter created by Tenant or any Tenant Subsidiary or
consented to by Tenant or any Tenant Subsidiary or requested by Tenant or any Tenant Subsidiary.
Tenant shall also comply and shall cause its Subsidiaries to comply with, observe and perform all
provisions and requirements of all policies of insurance at any time in force with respect to the
Premises and required to be obtained and maintained by Tenant or any Tenant Subsidiary under the
terms of paragraph 11 of this Lease. Tenant shall and shall cause its Subsidiaries to
comply with all licenses and permits issued by governmental
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authorities in connection with the Premises (including licenses and permits relating to all
waste water, storm water, water processing and other similar facilities, franchise agreements,
Membership Contracts and any conditional use permits (collectively, “Licenses”)); provided,
however, Landlord agrees, upon request of Tenant, to sign promptly and without a charge
therefor (except as provided in the final sentence of this subparagraph) any applications or
filings (1) for such licenses and permits as may be required by Legal Requirements for the conduct,
operation or restoration of the Premises and the business to be conducted therein in accordance
with the terms hereof, and (2) for the maintenance of the existing zoning for each Site to continue
to permit ▇▇▇▇▇▇’s use thereof, in both cases where the signature of Landlord is required by Legal
Requirements in force at the time. All reasonable costs incurred by Landlord in connection with
obtaining any such licenses and permits and zoning matters shall be borne by Tenant. With respect
to the Site commonly known as ▇▇▇ ▇▇▇▇, Tenant shall use commercially reasonable efforts to cause
the use permit benefiting the north side of the Site to be renewed or reissued.
(b) If Tenant shall at any time fail to pay any Imposition in accordance with the provisions
of paragraphs 6 or 26 of this Lease, or to take out, pay for, maintain and deliver any of
the insurance policies or certificates of insurance provided for in paragraph 11 of this
Lease, or shall fail to make any other payment or perform any other act on its part to be made or
performed hereunder, then Landlord, after five (5) Business Days’ prior written notice to Tenant
(or without notice in situations where Landlord determines that delay is likely to cause harm to
Landlord’s interest in the Premises), and without waiving or releasing Tenant from any obligation
of Tenant contained in this Lease, may (but shall be under no obligation to do so):
(i) pay any Imposition payable by Tenant pursuant to this Lease; or
(ii) make any other payment or perform any other act on Tenant’s part to be paid or performed
hereunder which Tenant shall not have paid or performed within the time required therefor, except
that any time permitted to Tenant to perform any act required by this paragraph shall be extended
for such reasonable period not to exceed three hundred sixty-five (365) days as may be necessary to
effectuate such performance, provided throughout such time Tenant is continuously, diligently and
in good faith prosecuting such performance.
(c) Tenant acknowledges that (1) Landlord’s interest in the Non-Fee Sites is that of the
subtenant under the Non-Fee Occupancy Agreements, true, correct and complete copies of which have
been delivered to Tenant, (2) Landlord’s interest in all of the Sites is that of the tenant under
the Master Lease, a true, correct and complete copy of which has been delivered to Tenant and (3)
pursuant to this Lease, Tenant is effectively subleasing Landlord’s interest as the subtenant under
the Non-Fee Occupancy Agreements and the tenant under the Master Lease. Tenant hereby covenants
and agrees to perform and comply in all material respects with all of the obligations of the tenant
under the Non-Fee Occupancy Agreements during the Term of this Lease.
(d) Landlord hereby grants to Tenant an exclusive license and authority solely to enforce
Landlord’s rights as the tenant or subtenant of the Premises, as applicable, under the terms and
conditions of the Non-Fee Occupancy Agreements and the Licenses. Tenant shall comply with
Landlord’s obligations as tenant, subtenant or licensee of the Premises, as applicable, under the
Non-Fee Occupancy Agreements and the Licenses; provided, however,
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▇▇▇▇▇▇▇▇ agrees, upon request of ▇▇▇▇▇▇, to sign promptly and without a charge therefor
(except as provided in the final sentence of this subparagraph) any documents, applications or
filings for the Non-Fee Occupancy Agreements and/or Licenses as may be required from time to time
for the conduct, operation or restoration of the Premises and the business to be conducted therein
in accordance with the terms hereof. All reasonable costs incurred by Landlord in connection with
obtaining any such documents, licenses and permits shall be borne by Tenant.
(e) Landlord may enter upon the Premises for any such cure purpose set forth in this
paragraph 12 and take all such action in or on the Premises as may be necessary therefor
pursuant to this paragraph 12. All sums, reasonable under the circumstances, actually paid
by Landlord and all costs and expenses, including attorney’s fees, incurred by Landlord in
connection with the performance of any such act, together with interest thereon at the Overdue Rate
and an amount equal to five percent (5%) of all such costs and expenses, shall be paid by Tenant to
Landlord on demand and submission of reasonable evidence of such expenditures. Landlord shall not
be limited in the proof of any damages which Landlord may claim against Tenant arising out of or by
reason of Tenant’s failure to provide and keep in force insurance as aforesaid, to the amount of
the insurance premium or premiums not paid or incurred by Tenant, and which would have been payable
upon such insurance, but Landlord shall also be entitled to recover, as damages for any such
breach, the uninsured amount of any loss, damages, costs and expenses of suit, including attorney’s
fees, suffered or incurred by reason of damage to or destruction of the Premises or Underlying
Premises, or any portion thereof or other damage or loss which Tenant is required to insure against
hereunder, occurring during any period when Tenant shall have failed or neglected to provide
insurance as aforesaid.
(f) Tenant shall have the right under this Lease to abandon any Site or Sites subject to this
Lease, provided such abandonment does not violate any Membership Contracts or applicable Legal
Requirements, and so long as during such period of abandonment, (i) Tenant continues to pay Rent
and maintain the Premises at such Sites in accordance with this Lease, (ii) Tenant maintains a
security system and performs regular inspections of such Sites and (iii) Tenant provides Landlord
with the right to inspect such Sites on an annual basis and Tenant pays for the costs of such
inspections.
(g) Tenant hereby covenants and agrees to perform and comply in all material respects with all
of the obligations of the tenant under any equipment lease or other agreement affecting the
Personal Property during the Term of this Lease. Landlord hereby grants to Tenant an exclusive
license and authority solely to enforce Landlord’s rights as the obligor or obligee, as applicable,
under the terms and conditions of any equipment lease or other agreement affecting the Personal
Property. Tenant shall comply with Landlord’s obligations as obligor or obligee, as applicable,
under any such agreement affecting the Personal Property; provided, however,
Landlord agrees, upon request of ▇▇▇▇▇▇, to sign promptly and without a charge therefor (except as
provided in the final sentence of this paragraph 12(g)) any documents, applications or
filings required for the conduct, operation or restoration of the Personal Property and the
business to be conducted therein in accordance with the terms hereof. All reasonable costs
incurred by Landlord in connection with obtaining any such documents, licenses and permits shall be
borne by Tenant.
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13. PARTIAL TAKING
If less than substantially all of any Site shall be taken for public or quasi-public purposes,
Tenant shall promptly, at its sole cost and expense, restore, repair, replace or rebuild the
improvements so taken in conformity with the requirements of paragraph 9 of this Lease as
nearly as practicable to the condition, size, quality of workmanship and market value thereof
immediately prior to such taking, without regard to the adequacy of any condemnation award for such
purpose. There shall be no abatement of Rent during any such period of restoration. In performing
its obligations, Tenant shall be entitled to all condemnation proceeds made available to Landlord
for restoration or repair of the Premises under the same terms and conditions for disbursement set
forth for casualty proceeds in paragraph 10 of this Lease, including such proceeds being
made available by Mortgagee. Tenant shall, at its sole cost and expense, negotiate and, if
necessary, litigate, the amount of the award, and Landlord shall have the right to participate in
such process, and if Tenant fails to diligently prosecute such efforts, Landlord may (at its
option) take control of the process. Any condemnation proceeds in excess of the amounts as are
made available to Tenant for restoration or repair of the Premises shall be the sole and exclusive
property of Landlord. Tenant shall have the right to participate in condemnation proceedings with
Landlord, and shall be entitled to receive any award made by the condemning authority in respect of
business loss or, if available, business relocation and any other claim permitted by law which does
not, in any such case, diminish Landlord’s recovery.
14. SUBSTANTIAL TAKING
If an entire Site or a substantial part of a Site, or access thereto, shall be taken or
condemned by any competent authority for any public or quasi-public use or purpose, or, as a result
of such taking, the use of such Site shall be materially adversely affected, the Term of this Lease
(with respect to such affected Site only) shall end upon and not before the date when the
possession of the part so taken shall be required for such use and, except as otherwise provided
herein, without any modification or adjustment of Rent in connection therewith. Landlord shall be
entitled to receive the entire award or payment in connection therewith, except that Tenant shall
have the right to file any claim available to Tenant under applicable Law for any taking of
leasehold improvements paid for by Tenant and any Tenant’s personal property and fixtures belonging
to Tenant and removable by Tenant upon expiration of the Term and for moving expenses, provided
that such separate award shall not reduce the award or judgment recoverable by Landlord; provided,
further, that Landlord shall be permitted, at its sole discretion, to apportion a portion of any
award received to Tenant as consideration for losses suffered by ▇▇▇▇▇▇ as a result of a taking.
In the event that an entire Site is taken, Landlord shall have the option, at its sole
discretion, of designating a replacement Site which shall replace the taken Site, in every
instance, in this Lease. In the event that Landlord designates a replacement Site subsequent to a
taking of an entire Site, the value of such replacement Site shall be taken into consideration in
determining the portion of any award apportioned to Tenant by Landlord in consequence of such
taking (as provided for herein).
Notwithstanding the foregoing, if Tenant is required by applicable law to provide a
replacement Site for Members, Landlord shall use proceeds from the taking to purchase a replacement
Site that satisfies the applicable Legal Requirements.
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If the temporary use or occupancy of all or any part of any Site shall be taken by
condemnation during the Term, this Lease shall be and remain unaffected by such condemnation, and
Tenant shall continue to pay in full the Rent payable hereunder. In the event of any such
temporary taking for use or occupancy of all or any part of such Site, Tenant shall be entitled to
appear, claim, prove and receive the portion of the award for such taking that represents
compensation for use or occupancy of such Site during the period of such temporary taking and
Landlord shall be entitled to appear, claim, prove and receive the portion of the award that
represents the costs of restoration of such Site and the use or occupancy of such Site after the
end of the period of such temporary taking.
15. DEFAULT; EVENTS OF DEFAULT
The occurrence of any one or more of the following events (“Event of Default”) shall
constitute a breach of this Lease by Tenant:
(a) Tenant fails to pay any Fixed Rent as and when such Fixed Rent becomes due, and such
failure continues for five (5) Business Days after Landlord gives written notice thereof to Tenant;
provided, however, that no more than once per twelve month period, such five (5) Business Day cure
period that follows the receipt of Landlord’s notice of non-payment of Fixed Rent shall be extended
to the final Business Day of the calendar quarter in which such non-payment of Fixed Rent occurred;
or
(b) Tenant fails to pay any Additional Rent as and when such Additional Rent becomes due and
payable and such failure continues for more than five (5) Business Days after Landlord gives
written notice thereof to Tenant; or
(c) The entering of a non-appealable final judgment that ▇▇▇▇▇▇ has breached its
indemnification obligations under the Merger Transaction; provided however, that prior to the
appeal by Tenant of any judgment holding that ▇▇▇▇▇▇ has breached an indemnification obligation
under the Merger Transaction, Tenant shall be required to post bond in the amount of such judgment
or, at the election of Tenant, provide a letter of credit in favor of Landlord for such amount; or
(d) Tenant fails to perform its obligations under or breaches any agreement or covenant
contained in any part of paragraph 25, paragraph 31 and subparagraphs 38(a)
through (k) of this Lease; and, even if not specifically so provided therein, a breach by any
Subsidiary of the aforementioned shall constitute an Event of Default; or
(e) Tenant or any of Tenant’s Subsidiaries fails to perform or breaches any agreement or
covenant of this Lease not separately covered in this paragraph 15 to be performed or
observed by Tenant or any of Tenant’s Subsidiaries as and when performance or observance is due and
such failure or breach continues for more than thirty (30) calendar days after Landlord gives
written notice thereof to Tenant; provided, however, that if, by the nature of such
agreement or covenant, such failure or breach cannot reasonably be cured within such period of
thirty (30) calendar days, an Event of Default shall not exist as long as Tenant or such Tenant
Subsidiary commences with due diligence and dispatch the curing of such failure or breach within
such period of thirty (30) calendar days and, having so commenced, thereafter prosecutes with
diligence and dispatch and completes the curing of such failure or breach within a
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reasonable time not to exceed one hundred eighty (180) calendar days, except with respect to
regulatory compliance matters, when such cure must be completed within three hundred sixty-five
(365) calendar days; or
(f) Tenant, any Guarantor or any of Tenant’s Subsidiaries (i) files, or consents by answer or
otherwise to the filing against Tenant, any Guarantor or any of Tenant’s Subsidiaries of, a
petition for relief or reorganization or arrangement or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy, insolvency or other debtors’ relief law of any
jurisdiction, (ii) makes an assignment for the benefit of Tenant’s, any Guarantor’s or any of
Tenant’s Subsidiaries’ creditors, (iii) consents to the appointment of a custodian, receiver,
trustee or other officer with similar powers of Tenant, any Guarantor, any of Tenant’s Subsidiaries
or of any substantial part of Tenant’s, any Guarantor’s or any of Tenant’s Subsidiaries’ property,
or (iv) takes any action for the purpose of any of the foregoing; or
(g) A court or government authority enters an order, and such order is not stayed or vacated
within sixty (60) calendar days, (i) appointing a custodian, receiver, trustee or other officer
with similar powers with respect to Tenant, any Guarantor, any Tenant Subsidiary or with respect to
any substantial part of Tenant’s or any Tenant Subsidiary’s property, or (ii) constituting an order
for relief or approving a petition for relief or reorganization or arrangement or any other
petition in bankruptcy, insolvency or other debtors’ relief law of any jurisdiction, or (iii)
ordering the dissolution, winding-up or liquidation of Tenant, Guarantor or any Tenant Subsidiary;
or
(h) Tenant fails to pay any insurance premiums when due or otherwise fails to continuously
maintain all insurance required to be maintained by Tenant in accordance with the terms and
conditions of this Lease; or
(i) Any Guarantor or Tenant or anyone claiming on behalf of either party asserts any claim
that the Guaranty is not then in full force and effect; or
(j) An “Event of Default” occurs and is continuing under the Guaranty, the Option Agreement,
the Subsidiary Guaranty, the Guarantor Pledge, the Subsidiary Pledge or the Tenant Pledge; or
(k) Tenant, any Guarantor or any of Tenant’s Subsidiaries shall be in default under the terms
of any of its Indebtedness; or
(l) An “Event of Default” occurs and is continuing under and as defined in the Outdoor World
Lease; or
(m) An “Event of Default” occurs and is continuing under and as defined in the Mid-Atlantic
Lease.
Landlord may treat the occurrence of any one or more of the foregoing Events of Default as a
breach of this Lease. For so long as such Event of Default continues, Landlord, at its option and
with or without notice or demand of any kind to Tenant or any other Person, shall have only the
remedies provided in paragraph 16 of this Lease.
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16. REMEDIES
(a) Upon the occurrence of an Event of Default, Landlord shall, in addition to, and not in
derogation of, any remedies for any preceding breach, with or without notice or demand (except as
otherwise expressly provided herein) and without limiting Landlord in the exercise of any right or
remedy which Landlord may have by reason of such Event of Default under this Lease, have the right
to cause all of the assets directly or indirectly owned by Tenant and the equity interests in
Tenant to be transferred and assigned to Landlord through appropriate judicial remedies, including
pursuant to the following available remedies:
(i) Landlord shall have the right to terminate ▇▇▇▇▇▇’s right to possession of the Premises
and repossess the Premises by any lawful means without terminating this Lease.
(ii) Landlord shall have the right at any time to give a written termination notice to Tenant
and, on the date specified in such notice, Tenant’s right to possession of the Premises shall
terminate and this Lease shall terminate. Upon such termination, Landlord shall have the right to
recover from Tenant:
(A) The worth at the time of determination of all unpaid Rent which had been
earned at the time of termination;
(B) The worth at the time of determination of the amount of all unpaid Rent for
the balance of the then-Term of this Lease after the time of termination excluding
the potential Lease term under any unexercised options for any Extension Terms,
reduced only to the extent of net rental proceeds actually received from any
subsequent replacement tenant(s) for any Site; provided, however,
except to the extent the state statutes or common law applicable to any Site
requires Landlord to mitigate its damages arising from an Event of Default by Tenant
under this Lease, from and after any such Event of Default, Landlord shall have no
duty to mitigate its damages by re-letting, or attempting to re-let, any Site to any
replacement tenant(s); and
(C) All other amounts necessary to compensate Landlord for all of the detriment
proximately caused by ▇▇▇▇▇▇’s failure to perform all of Tenant’s obligations under
this Lease or which in the ordinary course of events would be likely to result
therefrom. The “worth at the time of determination” of the amounts referred to in
clause (A) above shall be computed by allowing interest at the Per Diem Late Charge.
The “worth at the time of determination” of the amount referred to in clause (B)
above shall be computed by discounting such amount to present value by using the
discount rate equal to the then Treasury Rate. For the purpose of determining
unpaid Rent under clauses (A) and (B) above, the Rent reserved in this Lease shall
be deemed to be the total Rent payable by Tenant under paragraph 5 of this
Lease.
(iii) Even if Landlord terminates Tenant’s right to possession under this Lease, this Lease
shall continue in effect and Landlord shall have the right to enforce all its rights and remedies
under this Lease, including the right to recover all Rent as it becomes due under this
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Lease. Landlord shall be entitled to an administrative fee of five percent (5%) of all
amounts expended under this paragraph 16(a).
(iv) All amounts owed by Tenant to Landlord following an Event of Default can be used by
Landlord in pursuing its claims against Guarantors under the Guaranty and enforcement of all
obligations, rights and remedies under (1) the Guaranty, (2) the Guarantor Pledges, (3) the
Subsidiary Guaranties, (4) the Subsidiary Pledges, and (5) the Tenant Pledge, including realizing
on all collateral set forth in any such documents in accordance with the terms of such documents.
(v) If Landlord commences any remedy under this paragraph 16(a), Landlord shall
continually prosecute such remedy to the fullest extent permitted under this Lease, the Guaranty,
the Guarantor Pledges, the Subsidiary Guaranties, the Subsidiary Pledges, the Tenant Pledge and all
applicable laws, such that Landlord or Landlord’s affiliate shall become the sole owner of the
assets of Tenant.
(b) In addition, upon the occurrence of an Event of Default, (1) Landlord shall be entitled to
receive and Tenant shall pay the Per Diem Late Charge for each day such Event of Default remains
outstanding, payable promptly, and in any event within three (3) Business Days following Landlord’s
written demand to Tenant for payment thereof, and (2) Landlord shall have all other rights set
forth in paragraph 31(g) of this Lease.
(c) All agreements and covenants to be performed or observed by Tenant under this Lease shall
be at Tenant’s sole cost and expense and without any abatement of Fixed Rent or Additional Rent.
If Tenant fails to pay any sum of money to be paid by Tenant or to perform any other act to be
performed by Tenant under this Lease as and when due or required to be performed, Landlord shall
have the right, but shall not be obligated, and without waiving or releasing Tenant from any
obligations of Tenant, to, upon five (5) Business Days’ prior notice to Tenant, make any such
payment or perform any such other act on behalf of Tenant in accordance with this Lease. All sums
so paid by ▇▇▇▇▇▇▇▇ and all necessary incidental costs shall be deemed Additional Rent hereunder
and shall be payable by Tenant to Landlord on demand, together with interest on all such sums from
the date of expenditure by Landlord to the date of repayment by ▇▇▇▇▇▇ at the Overdue Rate.
Landlord shall have, in addition to all other rights and remedies of Landlord, the same rights and
remedies in the event of the nonpayment of such sums (plus interest at the Overdue Rate) by ▇▇▇▇▇▇
as in the case of default by ▇▇▇▇▇▇ in the payment of Rent.
(d) Landlord shall be entitled to collect from Tenant Landlord’s reasonable costs and
expenses, including attorneys’ fees and expenses, in connection with the enforcement of its
remedies and/or the defense of any matter, including during an appeal and whether suit is actually
filed or not.
(e) Upon the occurrence of and during the continuance of an Event of Default, Landlord shall
have the right to commence an action in any court of competent jurisdiction located in the State of
Illinois for the purpose of adjudicating the Event of Default and any or all of Landlord’s rights
and remedies under this Lease related to each. Tenant hereby consents to the exercise of personal
jurisdiction over Tenant in any such court in Illinois and consents to Illinois as the choice of
venue. Upon adjudication of Landlord’s rights under this Lease,
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Landlord, at its option, shall have the right to file additional actions in any and all States
or Canadian Provinces in which the Sites are located for the purpose of enforcing Landlord’s rights
under this Lease, including obtaining orders of possession for the Site or Sites located in such
States or Canadian Provinces.
17. SUBORDINATION
(a) Subordination, Non-Disturbance. Tenant agrees at any time hereafter, and from
time to time within ten (10) Business Days of written request of Landlord, to execute and deliver
to Landlord a subordination, non-disturbance and attornment agreement substantially in the form
attached hereto as Exhibit D (such instrument, release, document or agreement is herein
called the “Subordination, Non-Disturbance and Attornment Agreement”), subjecting and subordinating
this Lease to the lien of any Mortgage which at any time may be placed upon the Premises or
Underlying Premises, or any portion thereof, by Landlord, and to any replacements, renewals,
amendments, consolidations, modifications, extensions or refinancings thereof. It is agreed,
nevertheless, that so long as there exists no Event of Default under paragraphs 15(f) or
15(g) of this Lease, such Subordination, Non-Disturbance and Attornment Agreement shall not
interfere with, hinder or reduce the right of Tenant to continue to occupy the Premises, and all
portions thereof, and to conduct its business thereon in accordance with the covenants, conditions,
provisions, terms and agreements of this Lease. The costs of preparing and recording any such
document shall be borne by Landlord, but Tenant shall be responsible for its own counsel fees.
(b) Mortgagee Protection Clause. In the event of any act or omission of Landlord
constituting a default by Landlord hereunder, Tenant shall not exercise any remedy until Tenant has
given Landlord and any Mortgagee of the Premises or Underlying Premises written notice of such act
or omission, and until a reasonable period of time (not less than ten (10) Business Days) to allow
Landlord or Mortgagee to remedy such act or omission shall have elapsed following receipt of such
notice. However, if such act or omission cannot, with due diligence and in good faith, be remedied
within such period or cannot be cured simply by the payment of money, Landlord and Mortgagee shall
be allowed such further period of time as may be reasonably necessary provided that either such
party commences remedying the same with due diligence and in good faith and thereafter diligently
prosecutes such cure, provided such cure period shall not extend beyond two hundred seventy (270)
calendar days after the receipt of notice of such default. Nothing herein contained shall be
construed or interpreted as requiring any Mortgagee receiving such notice to remedy such act or
omission.
(c) Attornment. If any Mortgagee shall succeed to the rights of Landlord under this
Lease or to ownership of the Premises or Underlying Premises, whether through possession or
foreclosure or the delivery of a deed to the Premises or Underlying Premises in lieu of
foreclosure, then such Mortgagee shall automatically be deemed to have recognized this Lease and to
assume the obligations of Landlord hereunder accruing on and after the date such Mortgagee acquires
title to the Premises or Underlying Premises, and Tenant shall attorn to and recognize such
Mortgagee as Tenant’s landlord under this Lease and shall promptly execute and deliver any
instrument consistent with the Subordination, Non-Disturbance and Attornment Agreement that such
Mortgagee may reasonably request to evidence such attornment (whether before or after the making of
the Mortgage). In the event of any other transfer of ▇▇▇▇▇▇▇▇’s interest hereunder, such
transferee shall automatically be deemed to have recognized this Lease
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and to assume the obligations of Landlord hereunder accruing on and after the date of such
transfer, and Tenant shall attorn to and recognize such transferee as ▇▇▇▇▇▇’s landlord under this
Lease and shall promptly execute and deliver any instrument consistent with the Subordination,
Non-Disturbance and Attornment Agreement that such transferee and Landlord may reasonably request
to evidence such attornment.
(d) Acknowledgement. Upon ten (10) calendar days’ advance written notice, ▇▇▇▇▇▇
agrees to execute, acknowledge and deliver a document acknowledging the assignment by Landlord of
this Lease to a Mortgagee, in a commercially reasonable form then approved by institutional
lenders, with such changes therein as may be reasonably requested by the Mortgagee.
18. LANDLORD’S RIGHT OF ENTRY; INDEMNIFICATION
(a) Landlord, Mortgagee, and their respective designees shall have the right to enter the
Premises, and any part thereof, at any time during normal business hours and to inspect the same,
post notices of non-responsibility, monitor construction, perform appraisals, perform environmental
site assessments and engineering studies, and, during the last twenty-four (24) months of the Term
or at any time after an Event of Default, exhibit the Premises or any Site to prospective
purchasers and mortgagees, and examine ▇▇▇▇▇▇’s books and records pertaining to the Premises,
insurance policies, certificates of occupancy and other documents, records and permits in Tenant’s
possession with respect to the Premises, all of which shall be customary and adequate and
reasonably satisfactory to Landlord.
(b) Landlord hereby indemnifies and agrees to defend and hold harmless Tenant and its partners
or members, partners or members of such partners and members, and their respective heirs,
executors, administrators, personal or legal representatives, successors and assigns from and
against any and all claims, expenses, costs, damages, losses and liabilities (including reasonable
attorneys’ fees), on an After-Tax Basis, with respect to physical damage or personal injury to the
extent resulting from ▇▇▇▇▇▇▇▇’s or its agents’ or representatives’ action on the Premises, which
may at any time be asserted against or suffered by ▇▇▇▇▇▇ as a result of, on account of, or arising
from Landlord or its agents or representatives entering the Premises pursuant to the terms of this
Lease.
19. LEASEHOLD MORTGAGES.
Tenant shall not, without ▇▇▇▇▇▇▇▇’s consent, which Landlord may grant or withhold in its sole
and absolute discretion, mortgage Tenant’s interest under this Lease by any means whatsoever.
20. ESTOPPEL CERTIFICATE; FINANCIAL DATA
(a) At any time and from time to time, Tenant shall, within ten (10) Business Days after
written request by Landlord, execute, acknowledge and deliver to Landlord a certificate certifying:
(a) that this Lease is unmodified and in full force and effect (or, if there have been
modifications, that this Lease is in full force and effect as modified, and stating the date and
nature of each modification); (b) the Commencement Date and the Lease Expiration Date determined in
accordance with paragraph 4 of this Lease and the Basic Lease Information, and the date, if
any, to which all Rent and other sums payable hereunder have been paid; (c) the
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amount of Fixed Rent currently payable monthly; (d) that no notice has been received by Tenant
of any default by Tenant hereunder which has not been cured, except as to defaults specified in
such certificate; (e) that to Tenant’s actual knowledge, Landlord is not in default under this
Lease, except as to defaults specified in such certificate; and (f) such other matters as may be
reasonably requested by Landlord or any actual or prospective purchaser or mortgage lender. Any
such certificate may be relied upon by Landlord and any actual or prospective purchaser or mortgage
lender of the Premises, Underlying Premises, or any part thereof.
(b) Tenant shall deliver to Landlord and to any actual or prospective purchaser or mortgage
lender designated by Landlord the following information (A) (i) within ten (10) days after the end
of each fiscal year of Tenant: (a) an unaudited consolidated and consolidating balance sheet of
PA, Tenant and Tenant’s Subsidiaries, an unaudited consolidated and consolidating statement of
profits and losses of PA, Tenant and Tenant’s Subsidiaries for such fiscal year and an unaudited
statement of cash flows of PA, Tenant and Tenant’s Subsidiaries for such fiscal year, setting forth
in each case, in comparative form, the corresponding figures for the preceding fiscal year in
reasonable detail and scope, certified to be complete and accurate by a senior financial officer of
PA and Tenant having knowledge thereof and reviewed in accordance with PCAOB and AICPA standards by
independent certified public accountants of recognized national standing selected by PA and Tenant;
(b) a detailed explanation of any variance from the Budget for such period and (c) a complete list
of all Members and Membership Dues paid as at the end of such fiscal year and (ii) within thirty
(30) days after the end of each fiscal year of Tenant: (a) an audited consolidated and
consolidating balance sheet of PA, Tenant and Tenant’s Subsidiaries, an audited consolidated and
consolidating statement of profits and losses of PA, Tenant and ▇▇▇▇▇▇’s Subsidiaries for such
fiscal year, and an audited statement of cash flows of PA, Tenant and Tenant’s Subsidiaries for
such fiscal year, setting forth in each case, in comparative form, the corresponding figures for
the preceding fiscal year in reasonable detail and scope and certified by independent certified
public accountants of recognized national standing selected by Tenant and (b) a detailed
explanation of any variance from the Budget for such period; (B) within five (5) days after the end
of each of the first three (3) fiscal quarters of Tenant, (i) a balance sheet of PA, Tenant and
Tenant’s Subsidiaries as at the end of such fiscal quarter, a statement of profits and losses of
PA, Tenant and Tenant’s Subsidiaries and a statement of cash flows of PA, Tenant and Tenant’s
Subsidiaries for such fiscal quarter, setting forth in each case, in comparative form, the
corresponding figures for the similar quarter of the preceding fiscal year (or in the case of an
interim balance sheet, to the end of the prior fiscal year), in reasonable detail and scope, and
certified to be complete and accurate by a senior financial officer of PA and Tenant having
knowledge thereof and reviewed in accordance with PCAOB and AICPA standards by independent
certified public accountants of national standing selected by PA and Tenant and (ii) a detailed
explanation of any variance from the Budget for such period; (C) within five (5) days after the end
of each month, consolidated balance sheets of PA, Tenant and Tenant’s Subsidiaries and the related
consolidated statements of income and cash flow for such month and for the period from the
beginning of the then current fiscal year of Tenant to the end of such month, the foregoing
financial statements in each case being prepared in accordance with GAAP together with a detailed
explanation of any variance from the Budget for such period; (D) fifteen (15) days before the end
of each quarter, a “flash” report showing results in such quarter to date and estimated results of
PA, Tenant and ▇▇▇▇▇▇’s Subsidiaries for the balance of such quarter, including a cash flow
statement and income statement for such quarter together with a detailed explanation of any
variance from the Budget for such quarter and (E) as requested, a complete list of all Members and
Membership Dues paid for any time period
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requested. The financial reports shall be in the form of Exhibit Z attached hereto.
Tenant’s obligation to disclose information to an actual or prospective purchaser or a mortgage
lender pursuant to this paragraph 20(b) is subject to ▇▇▇▇▇▇’s receipt of a confidentiality
agreement in form and substance reasonably acceptable to Tenant. Tenant shall deliver to Landlord
(i) together with the annual audited financial statements described above, an annual Site operating
expense statement for each Site in detail reasonably satisfactory to Landlord and certified to be
complete and accurate by a senior officer of Tenant or Guarantor, and (ii) together with each
quarterly financial statement described above, a Compliance Certificate duly executed by Tenant, in
form and substance reasonably acceptable to Landlord, demonstrating compliance with the financial
performance covenants contained in paragraph 38 of this Lease and setting forth the basis
for such calculations with reasonable detail and specificity. Upon the occurrence of any Casualty
or injury to any person on any Site, Tenant shall immediately notify Landlord of such event.
(c) Upon ten (10) Business Days’ prior written notice, Tenant shall permit Landlord and its
professional representatives to visit Tenant’s offices, and discuss Tenant’s affairs and finances
with ▇▇▇▇▇▇’s senior management, and shall make available such information as Landlord may
reasonably request bearing on Tenant, the Premises or this Lease as Tenant may maintain in the
ordinary course of business. Landlord shall agree to maintain the confidentiality of (i) all
nonpublic information provided to Landlord under this paragraph 20 and (ii) any other
information designated by Tenant or Guarantor as “nonpublic.”
21. MECHANICS’ LIENS
(a) Except for liens created through the act of Landlord, Tenant shall not suffer or permit
any mechanic’s lien or other lien to be filed or recorded against the Premises or Underlying
Premises, equipment or materials supplied or claimed to have been supplied to the Premises or
Underlying Premises at the request of Tenant, or anyone holding the Premises, Underlying Premises,
or any portion thereof, through or under Tenant. If any such mechanic’s lien or other lien shall
at any time be filed or recorded against the Premises or Underlying Premises, or any portion
thereof, Tenant shall cause the same to be discharged of record or bonded over within thirty (30)
calendar days after the date of filing or recording of the same.
(b) All materialmen, contractors, artisans, engineers, mechanics, laborers and any other
Person now or hereafter furnishing any labor, services, materials, supplies, skill, machinery,
fixtures or equipment to Tenant with respect to the Premises, or any portion thereof, are hereby
charged with notice that they must look exclusively to Tenant to obtain payment for the same.
Notice is hereby given that Landlord shall not be liable for any labor, services, materials,
supplies, skill, machinery, fixtures or equipment furnished or to be furnished to Tenant upon
credit, and that no mechanic’s lien or other lien for any such labor, services, materials,
supplies, skill, machinery, fixtures or equipment shall attach to or affect the estate or interest
of Landlord’s affiliates in and to the Underlying Premises or the estate or interest of Landlord in
and to the Premises, or any portions thereof.
22. END OF TERM
(a) Unless Landlord exercises its rights provided in paragraph 22(f), upon the
expiration or earlier termination of the Term of this Lease, Tenant shall surrender the Premises to
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Landlord in the Premises Condition Standard, except as repaired, rebuilt or altered as
required or permitted by this Lease (or, in the case of termination pursuant to paragraph
14 of this Lease, as condemned). Except as otherwise provided herein, Tenant shall at such
time remove all of its personal property (including Tenant’s Trade Fixtures) therefrom and all
alterations and improvements placed thereon by Tenant and not consented to by Landlord. Tenant
shall repair any damage to the Premises caused by such removal, and any and all such property not
so removed when required shall, at Landlord’s option, become the exclusive property of Landlord or
be disposed of by Landlord, at Tenant’s cost and expense, without further notice to or demand upon
Tenant.
(b) Unless Landlord exercises its rights provided in paragraph 22(f), if the Premises
are not surrendered as above set forth, Tenant shall indemnify, defend and hold Landlord and the
Landlord Parties harmless on an After-Tax Basis from and against loss or liability resulting from
the delay by ▇▇▇▇▇▇ in so surrendering the Premises, including any claim made by any succeeding
occupant founded on such delay. Tenant’s obligation to observe or perform this covenant shall
survive the expiration or other termination of this Lease for six (6) years. The provisions of
this paragraph 22(b) shall not be deemed to limit or constitute a waiver of any other
rights or remedies of Landlord provided herein.
(c) Unless Landlord exercises its rights provided in paragraph 22(f), all property of
Tenant not removed on or before the last day of the Term of this Lease shall be deemed abandoned.
Tenant hereby agrees that Landlord may remove all property of Tenant, including ▇▇▇▇▇▇’s Trade
Fixtures, from the Premises upon termination of this Lease and may cause its transportation and
storage, all at the sole cost and risk of Tenant. Landlord shall not be liable for damage, theft,
misappropriation or loss thereof and Landlord shall not be liable in any manner in respect thereto,
and Landlord shall be entitled to dispose of such property, as Landlord deems fit, without the
requirement of an accounting. Tenant shall pay all reasonable costs and expenses of such removal,
transportation and storage. Tenant shall reimburse Landlord upon demand for any expenses
reasonably and actually incurred by Landlord with respect to removal, transportation or storage of
any such abandoned property and with respect to restoring the Premises in accordance with the terms
and conditions of this Lease.
(d) Except for surrender upon the expiration or earlier termination of the Term hereof as
expressly provided herein, no surrender to Landlord of this Lease or of the Premises shall be valid
or effective unless agreed to and accepted in writing by Landlord.
(e) Unless Landlord exercises its rights provided in paragraph 22(f), upon the
expiration of the Term or ▇▇▇▇▇▇’s right to possession of the Premises or any Site in accordance
with the terms of this Lease, ▇▇▇▇▇▇ agrees to cooperate with Landlord to transfer any and all
Licenses to Landlord, at ▇▇▇▇▇▇▇▇’s request.
(f) At the end of the Term, Tenant shall cooperate with Landlord in transferring only those
Membership Contracts that are Camping Resort Contracts (as defined in paragraph 40(f)(ii)
of this Lease) to an unrelated third party (who is not, for the avoidance of doubt, affiliated with
Landlord) identified by Landlord as a new Tenant for no additional consideration.
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23. ALTERATIONS
(a) Tenant may, without Landlord’s consent, make, in any fiscal year, alterations, additions
or improvements to any Site (including rental units, improvements, alterations and additions in the
ordinary course of business) costing less than $20,000.00 (provided, however, alterations performed
to repair the existing damage at the Oakzanita Site are not subject to paragraph 23(a), (b) or
(c)) only if (i) such alterations, additions or improvements will be in compliance with all
applicable laws, codes, rules, regulations and ordinances, (ii) such alterations, additions or
improvements will not reduce the fair market value or utility of such Site for its Permitted Use,
considered as unencumbered by this Lease, and (iii) such alterations, additions or improvements
will not materially and adversely affect in any way the structural, exterior or roof elements of
such Site or mechanical, electrical, plumbing, waste water systems and facilities, water plants and
facilities and septic facilities, utility or life safety systems of such Site. In all other cases,
▇▇▇▇▇▇▇▇’s prior written consent shall be required, which consent shall not be unreasonably
withheld, conditioned or delayed. At Landlord’s option, any improvement requiring Landlord’s
consent but made without Landlord’s consent shall be removed and the area repaired at Tenant’s
expense at the termination of the Term.
(b) In no event shall Tenant be permitted to install underground storage tanks or fuel systems
on the Premises, or any portion thereof, except that Tenant may replace existing underground
storage tanks with above-ground storage tanks which comply with all applicable Legal Requirements.
(c) All alterations, additions or improvements requiring Landlord’s consent shall be made at
Tenant’s sole cost and expense as follows:
(i) Tenant shall submit to Landlord, for Landlord’s written approval, complete plans and
specifications for all work to be done by or for Tenant. Such plans and specifications shall be
prepared by a licensed architect(s) and engineer(s) approved in writing by Landlord, shall comply
with all applicable codes, ordinances, rules and regulations, shall not adversely affect the
structural elements of any Site, shall be in a form sufficient to secure the approval of all
government authorities with jurisdiction over such Site, and shall be otherwise satisfactory to
Landlord in Landlord’s reasonable discretion.
(ii) Landlord shall notify Tenant in writing within thirty (30) calendar days whether Landlord
approves, approves on the condition that Tenant reverse the alteration at Tenant’s expense at the
termination or expiration of this Lease, or disapproves such plans and specifications. Tenant may
submit to Landlord revised plans and specifications for Landlord’s prior written approval, which
approval shall not be withheld or delayed if (a) the work to be done would not, in Landlord’s
reasonable judgment, adversely affect the value, character, rentability or usefulness of any Site
or any part thereof, or (b) the work to be done shall be required by any Legal Requirement. Tenant
shall pay all costs, including the fees and expenses of the licensed architect(s) and engineer(s),
in preparing such plans and specifications.
(iii) All changes (other than field changes for which no change order is proposed and which
will be reflected in the final “as built” plans) in the plans and specifications approved by
Landlord shall be subject to Landlord’s prior written approval. If Tenant wishes to make any such
change in the approved plans and specifications, Tenant shall have such
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architect(s) and engineer(s) prepare plans and specifications for such change and submit them
to Landlord for Landlord’s written approval. Landlord shall notify Tenant in writing whether
Landlord approves, approves on the condition that Tenant reverses the alteration at Tenant’s
expense at the termination or expiration of this Lease, or disapproves such change. Tenant may
submit to Landlord revised plans and specifications for any such change for ▇▇▇▇▇▇▇▇’s written
approval. After Landlord’s written approval of such change, such change shall become part of the
plans and specifications approved by Landlord.
(iv) Tenant shall obtain and comply with all building permits and other government permits and
approvals required in connection with the work. Tenant shall, through ▇▇▇▇▇▇’s licensed
contractor, perform the work substantially in accordance with the plans and specifications approved
in writing by Landlord. Tenant shall pay, as Additional Rent, the entire cost of all work
(including the cost of all utilities, permits, fees, taxes, and property and liability insurance
premiums in connection therewith) required to make the alterations, additions or improvements.
Under no circumstances shall Landlord be liable to Tenant for any damage, loss, cost or expenses
incurred by Tenant on account of any plans and specifications, contractors or subcontractors,
design of any work, construction of any work, or delay in completion of any work.
(v) Tenant shall give at least ten (10) calendar days’ prior written notice to Landlord of the
date on which construction of any work to be done by outside contractors which requires Landlord’s
consent will commence. Landlord shall have the right to post and keep posted on any Site any
notices that may be provided by law or which Landlord may deem to be proper for the protection of
Landlord and such Site, or any portion thereof, from Liens, and to take any other action Landlord
deems necessary to remove or discharge Liens, at the expense of Tenant.
(vi) All alterations, additions, improvements and fixtures, whether temporary or permanent in
character, made in or to any Site by Tenant, shall become part of such Site and Landlord’s
property, except those which are readily removable without causing material damage to such Site
(which shall be and remain the property of Tenant). Upon termination or expiration of this Lease,
Tenant shall, at Tenant’s expense, remove all movable furniture, equipment, trade fixtures, office
machines and other personal property (including Tenant’s Trade Fixtures) from each Site (but not
the Improvements, Personal Property or Equipment) and repair all damage caused by such removal.
Termination of this Lease shall not affect the obligations of Tenant pursuant to this paragraph
23(c) to be performed after such termination.
(vii) Promptly following the completion of any alteration, addition or improvement to the
Premises which costs more than $1,000,000.00 to complete, Tenant shall furnish Landlord with a copy
in electronic form acceptable to Landlord of the complete plans and specifications for such work
(including, if available, so-called “as-built” plans and specifications).
(d) In connection with the renovations and alterations to the existing damage at the Oakzanita
Site, Tenant shall deliver to Landlord complete plans and specifications (and any change orders)
for all work to be done by or for Tenant. Such plans and specifications shall be prepared by
licensed architect(s) and engineer(s), shall comply with all applicable codes, ordinances, rules
and regulations, shall not adversely affect the structural elements of the
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Oakzanita Site, and shall be in a form sufficient to secure the approval of all government
authorities with jurisdiction over the Oakzanita Site. Tenant shall obtain and comply with all
building permits and other government permits and approvals required in connection with the work.
All alterations, additions, improvements and fixtures, whether temporary or permanent in character,
made in or to the Oakzanita Site by Tenant, shall become part of the Oakzanita Site and Landlord’s
property. Promptly following the completion of any alteration, addition or improvement to the
Oakzanita Site, Tenant shall furnish Landlord with a copy in electronic form of the complete plans
and specifications for such work (including, if available, so-called “as-built” plans and
specifications).
24. MEMORANDUM OF LEASE
The parties agree to promptly execute a Memorandum of Lease with respect to each Site in
recordable form and Landlord shall record each such Memorandum of Lease. Landlord and Tenant shall
execute such customary amendments and terminations related thereto as may be required or reasonably
requested by Landlord or Tenant within five (5) Business Days of receipt thereof.
25. SUBLETTING/ASSIGNMENT
(a) Except as otherwise permitted in paragraphs 25(f) and 25(g) of this Lease, Tenant
shall not, directly or indirectly, without the prior written consent of Landlord and Mortgagee
(which consent may be withheld or conditioned in Landlord’s and/or Mortgagee’s sole and absolute
discretion), assign this Lease or any interest herein, or any interest in Tenant, or permit the use
or occupancy of the Premises by any Person other than Tenant or the Members or other persons
entitled to occupancy of the Premises pursuant to arrangements entered into in the ordinary course
of Tenant’s business (e.g., day rentals and extended vacation programs). Except as otherwise
expressly permitted in paragraph 25 of this Lease, this Lease shall not, nor shall any
interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law
without the prior written consent of Landlord and Mortgagee. Under no circumstances shall Tenant
be permitted to sublease the Premises or any part thereof, except as expressly permitted in
paragraph 25(g) of this Lease.
For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, or
the public announcement thereof, shall be deemed to be an assignment of this Lease which is
prohibited by the preceding paragraph unless Tenant obtains Landlord’s and ▇▇▇▇▇▇▇▇▇’s prior
written consent as set forth above (which consent may be denied by Landlord in Landlord’s sole
discretion).
Any of the foregoing prohibited acts (including, any purported assignment, sublease or
Corporate Control Event) without the prior written consent of Landlord and Mortgagee, as required
in accordance with the terms hereof, shall be void ab initio and shall, at the option of Landlord
or Mortgagee, constitute an immediate Event of Default under paragraph 15(d).
(b) The acceptance of Rent by Landlord from any other Person shall not be deemed to be a
waiver by Landlord of any provision of this Lease. Consent to one Corporate Control Event shall
not be deemed consent to any subsequent Corporate Control Event.
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(c) (i) Tenant shall have no right to mortgage, ▇▇▇▇▇ ▇ ▇▇▇▇ upon, encumber or otherwise
finance its interest under this Lease or record a lien upon its interest in the Premises under this
Lease; (ii) Tenant shall not permit, cause or suffer to be recorded in the real estate records of
any county in which the Premises are located any mortgage, deed to secure debt, deed of trust,
assignment, UCC financing statement or any other document granting, perfecting or recording a lien
upon Tenant’s interest in this Lease or interest in the Premises under this Lease; (iii) Tenant
shall not give any notice, or permit or cause any other party to give any notice, to Landlord of
any existing lien on or security interest in Tenant’s interest in this Lease or interest in the
Premises under this Lease; and (iv) Tenant shall not request that Landlord execute (nor shall
Landlord have any obligation to execute) any non-disturbance, attornment or any other agreement in
favor of any party transacting any business or transaction with or related to Tenant, other than
non-disturbance agreements with Members, as required by law.
(d) Tenant shall pay all of Landlord’s and Mortgagee’s reasonable attorneys’ fees and costs
incurred in connection with any Corporate Control Event and in connection with any request made by
Tenant pursuant to this paragraph 25.
(e) ▇▇▇▇▇▇ agrees to give notice to Mortgagee of any request for consent to any Corporate
Control Event simultaneously with delivery of notice thereof to Landlord.
(f) Execution of Membership Contracts by any Subleasing Subsidiary shall not be deemed to
constitute an assignment or sublease, as contemplated by this paragraph 25.
(g) Landlord hereby consents to the Tenant Subleases. Tenant shall cause each Subleasing
Subsidiary to perform all of the covenants to be performed by Tenant under this Lease (in the case
of a partial sublease, only insofar as such covenants relate to the portion of the Premises subject
to such partial sublease) as and when performance is due after the effective date of the sublease
and Landlord will have the right, but shall not be obligated, to enforce such covenants directly
against such subtenant and failure of any such subtenant to perform such covenants shall be deemed
a failure of Tenant to perform such covenants. Tenant shall cause each Subleasing Subsidiary to
(1) comply with the SPE Requirements contained in the Subsidiary Guaranty and (2) hold the
Membership Contracts relating to Tenant’s Business assigned to such Subleasing Subsidiary pursuant
to the Merger Transaction or otherwise entered into by such Subleasing Subsidiary. Tenant shall in
any case remain primarily liable (and not liable merely as a guarantor or surety) for the
performance by any subtenant, including the Subleasing Subsidiaries, of all such covenants, as if
no sublease had been made. No sublease, including the Tenant Subleases, shall release Tenant from
Tenant’s obligations and liabilities under this Lease (which shall continue as the obligations of a
principal and not of a guarantor or surety) or alter the primary liability of Tenant to pay all
Rent and to perform all obligations to be paid and performed by ▇▇▇▇▇▇. Consent to the Tenant
Subleases shall not be deemed consent to any subsequent sublease. If any subtenant of Tenant,
including the Subleasing Subsidiaries, defaults in the performance of any obligation to be
performed by Tenant under this Lease, Landlord may proceed directly against Tenant without the
necessity of pursuing or exhausting remedies against such subtenant. Tenant shall not amend,
terminate or otherwise modify the Tenant Subleases without Landlord’s prior written consent, which
may be withheld in its sole discretion. Tenant and Landlord hereby agree to execute any additional
documents reasonably required to effectuate the terms, provisions and conditions contained in this
paragraph 25(g).
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26. HAZARDOUS MATERIAL
(a) Tenant (i) shall comply, and cause the Premises to comply, with all Environmental Laws
applicable to the Premises (including the making of all submissions to governmental authorities
required by Environmental Laws and the carrying out of any remediation program specified by any
such authority), (ii) shall prohibit the use of the Premises for the generation, manufacture,
refinement, production or processing of any Hazardous Materials or for the storage, handling,
transfer or transportation of any Hazardous Materials (other than in connection with the operation,
business and maintenance of the Premises and in commercially reasonable quantities in compliance
with Environmental Laws), (iii) shall not permit to remain, install or permit the installation on
the Premises of any surface impoundments, underground storage tanks, pcb-containing transformers or
asbestos-containing materials, except in compliance with Environmental Laws and (iv) shall cause
any alterations of the Premises to be done in a way so as to not expose in an unsafe manner the
persons working on or visiting the Premises to Hazardous Materials and in connection with any such
alterations Tenant shall remove any Hazardous Materials present upon the Premises which are not in
compliance with Environmental Laws or which present a danger to persons working on or visiting the
Premises.
(b) “Environmental Laws” means the Resource Conservation and Recovery Act of 1976, as amended,
42 U.S.C. §§6901, et seq. “RCRA,” the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization
Act of 1986, 42 U.S.C. §§9601, et seq. “CERCLA,” as amended, the Toxic Substance
Control Act, as amended, 15 U.S.C. §§2601, et seq., the Federal Insecticide,
Fungicide and Rodenticide Act, as amended, 7 U.S.C. §§136, et seq., and all
applicable federal, state and local environmental laws, ordinances, rules and regulations, as any
of the foregoing may have been or may be from time to time amended, supplemented or supplanted, and
any other federal, state or local laws, ordinances, rules and regulations now or hereafter existing
relating to regulation or control of Hazardous Materials. The term “Hazardous Materials” as used
in this Lease shall mean substances defined as “hazardous substances,” “hazardous materials.”
“hazardous wastes” or “toxic substances” in any applicable federal, state or local statute, rule,
regulation or determination, including CERCLA; the Hazardous Materials Transportation Act, 49
U.S.C. §§1801, et seq.; RCRA; and, asbestos, pcb’s, radioactive substances,
methane, volatile hydrocarbons, petroleum or petroleum-derived substances or wastes, radon,
industrial solvents or any other material as may be specified in applicable laws or regulations.
(c) ▇▇▇▇▇▇ agrees to protect, defend, indemnify and hold harmless Landlord, its affiliates,
members, partners, directors, officers, employees and agents, and any successors to ▇▇▇▇▇▇▇▇’s
interest in the chain of title to the Premises, their direct or indirect shareholders, members,
partners, directors, officers, employees and agents (collectively, the “Indemnified Party”), on an
After-Tax Basis, from and against any and all liability, including all foreseeable and all
unforeseeable damages including attorney’s and consultant’s fees, fines, penalties and civil or
criminal damages, directly or indirectly arising out of the use, generation, storage, treatment,
release, threatened release, discharge, spill, presence or disposal of Hazardous Materials from,
on, at, to or under the Premises or the Underlying Premises during the Term of this Lease, and
including for all matters disclosed in the environmental reports listed on Exhibit J,
copies of which have been delivered to Tenant (collectively, the “Environmental Reports”), and the
cost of any required or necessary repair, response action, remediation,
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investigation, cleanup or detoxification and the preparation of any closure or other required
plans in connection therewith, whether such action is required or necessary prior to or following
transfer of title to the Underlying Premises. This agreement to indemnify and hold harmless shall
(i) exclude matters to the extent caused by an Indemnified Party and (ii) be in addition to any
other obligations or liabilities Tenant may have to Landlord at common law and under all statutes
and ordinances or otherwise, and shall survive following the date of expiration or earlier
termination of this Lease for six (6) years, except where the event giving rise to the liability
for which indemnity is sought arises out of Tenant’s acts, in which case the agreement to indemnify
and hold harmless shall survive the expiration or termination of this Lease without limit of time.
▇▇▇▇▇▇ expressly agrees that the representations, warranties and covenants made and the indemnities
stated in this Lease are not personal to Landlord, and the benefits under this Lease may be
assigned to subsequent parties in interest to the chain of title to the Premises, which subsequent
parties in interest may proceed directly against Tenant to recover pursuant to this Lease. Tenant,
at its expense, may institute appropriate legal proceedings with respect to environmental matters
of the type specified in this paragraph 26(c) or any lien for such environmental matters,
not involving Landlord or its Mortgagee as a defendant (unless Landlord or its Mortgagee is the
alleged cause of the damage), conducted in good faith and with due diligence, provided that such
proceedings shall not in any way impair the interests of Landlord or Mortgagee under this Lease or
contravene the provisions of any Mortgage. Counsel to Tenant in such proceedings shall be
reasonably approved by Landlord if Landlord is a defendant in the same proceeding. ▇▇▇▇▇▇▇▇ shall
have the right to appoint co-counsel, which co-counsel will cooperate with ▇▇▇▇▇▇’s counsel in such
proceedings. The fees and expenses of such co-counsel shall be paid by Landlord, unless such
co-counsel is appointed because the interests of Landlord and Tenant in such proceedings, in such
counsel’s opinion, are or have become adverse, or Tenant or ▇▇▇▇▇▇’s counsel is not conducting such
proceedings in good faith or with due diligence.
(d) Tenant, upon three (3) Business Days’ prior notice, shall permit such Persons as Landlord
or any assignee of Landlord may designate and (unless an Event of Default has occurred and is
continuing) approved by Tenant, which approval shall not be unreasonably withheld or delayed (“Site
Reviewers”), to visit the Premises from time to time and perform environmental site investigations
and assessments (“Site Assessments”) on the Premises for the purpose of determining whether there
exists on the Premises any environmental condition which may result in any liability, cost or
expense to Landlord or any other owner or occupier of the Premises. Such Site Assessments may
include both above and below the ground testing for environmental damage or the presence of
Hazardous Material on the Premises and such other tests on the Premises as may be necessary to
conduct the Site Assessments in the reasonable opinion of the Site Reviewers. Tenant shall supply
to the Site Reviewers such historical and operational information regarding the Premises as may be
reasonably requested by the Site Reviewers to facilitate the Site Assessments (other than
information previously supplied in writing to Landlord by ▇▇▇▇▇▇) and shall make available for
meetings with the Site Reviewers appropriate personnel having knowledge of such matters. The cost
of performing and reporting all Site Assessments shall be paid by Landlord unless the Site
Reviewers discover a material environmental condition causing the Premises not to be in compliance
with applicable Environmental Laws, in which event such cost shall be paid by Tenant within ten
(10) calendar days after demand by Landlord with interest to accrue at the Overdue Rate. Landlord,
promptly after written request by ▇▇▇▇▇▇ and payment by Tenant to the extent required as aforesaid,
shall deliver to Tenant copies of reports, summaries or other compilations of the results of such
Site
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Assessments. Tenant’s sole remedy for Landlord’s breach of the preceding sentence shall be a
mandatory injunction, and not a termination of this Lease or a withholding or reduction of Rent.
(e) Tenant shall notify Landlord in writing, promptly upon ▇▇▇▇▇▇’s learning thereof, of any:
(i) notice or claim to the effect that Tenant is or may be liable to any Person as a result of
the release or threatened release of any Hazardous Materials into the environment from the
Premises;
(ii) notice that Tenant is subject to investigation by any governmental authority evaluating
whether any remedial action is needed to respond to the release or threatened release of any
Hazardous Materials into the environment from the Premises;
(iii) notice that the Premises are subject to an environmental lien; and
(iv) notice of violation to Tenant or awareness by Tenant of a condition which might
reasonably result in a notice of violation of any applicable Environmental Law that could, in
either case, have a material adverse effect upon the Premises or any portion thereof.
27. FINANCING
(a) Landlord may assign this Lease to any Person, including any Mortgagee. Tenant shall
execute, acknowledge and deliver any documents reasonably requested by Landlord, any such
transferee or Mortgagee relating to any such assignment of this Lease by Landlord or the Mortgage
financing.
(b) If
Landlord proposes to finance or refinance any Mortgage, Tenant shall co-operate in the
process, and, during the last twenty-four (24) months of the term of any Mortgage, Tenant shall,
upon ▇▇▇▇▇▇▇▇’s written request, exhibit the Premises to prospective mortgagees, and permit such
prospective mortgagees to examine all materials and records which shall be customary for a
mortgagee’s inspection, subject at all times to ▇▇▇▇▇▇▇▇’s indemnity set forth in paragraph
18 of this Lease and the confidentiality requirements set forth in this Lease. Tenant agrees
to execute, acknowledge and deliver documents reasonably requested by any prospective Mortgagee
(such as a consent to the financing (without encumbering any assets directly or indirectly owned by
Tenant), a consent to assignment of lease, and a subordination, non-disturbance and attornment
agreement meeting the standards set forth in paragraph 17 of this Lease) customary for
tenants to sign in connection with mortgage loans to their landlords, so long as such documents are
in form then customary among institutional lenders (provided the same do not adversely affect
Tenant’s rights or obligations in a way not previously affected by loan documents previously
executed by Tenant in connection with an earlier Mortgage).
(c) Tenant shall permit Landlord and any Mortgagee or prospective Mortgagee and any
representatives or agents of Landlord, any Mortgagee or prospective Mortgagee, at their expense,
to meet with senior management personnel of Tenant and/or Guarantor at Tenant’s and/or Guarantor’s
offices and to discuss Tenant’s and/or Guarantor’s business and finances. On request of Landlord,
▇▇▇▇▇▇ agrees to use commercially reasonable efforts to provide any Mortgagee or prospective
Mortgagee the information to which Landlord is entitled hereunder. If any such information is
non-public, each party requesting such information shall sign a
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confidentiality agreement (in a form reasonably satisfactory to Tenant) prior to such
Mortgagee or prospective Mortgagee receiving such information.
(d) In the event Mortgagee elects to record a Mortgage in connection with any Mortgage
financing, said Mortgage shall contain the language set forth in Exhibit N attached hereto,
or such other language as may be required from time to time under applicable laws in effect in any
state (1) in which a Site is located or (2) in which Memberships are offered for sale.
28. MISCELLANEOUS PROVISIONS
(a) This Lease and all of the covenants and provisions hereof shall inure to the benefit of,
and be binding upon, the parties hereto and the heirs, personal representatives, successors and
permitted assigns of the parties.
(b) The titles and headings appearing in this Lease are for reference only and shall not be
considered a part of this Lease or in any way to modify, amend or affect the provisions thereof.
(c) This Lease, the documents and agreements referenced herein and any intercreditor or
tri-party agreement among Landlord, Tenant and Working Capital Lender (as such agreement may be
amended or replaced from time to time) contain the complete agreement of the parties with reference
to the leasing of the Premises, and may not be amended except by an instrument in writing signed by
Landlord and ▇▇▇▇▇▇.
(d) Any provision or provisions of this Lease which shall prove to be invalid, void or illegal
shall in no way affect, impair or invalidate any other provision hereof, and the remaining
provisions hereof shall nevertheless remain in full force and effect.
(e) This Lease may be executed in one or more counterparts, and may be signed by each party on
a separate counterpart, each of which, taken together, shall be an original, and all of which shall
constitute one and same instrument.
(f) The term “Landlord” as used in this Lease shall mean only the tenant or subtenant under
the Master Lease at the time in question, and in the event of any transfer of such title or
interest, the Landlord named in this Lease (and in case of any subsequent transfers, then the
grantor) shall be relieved from and after the date of such transfer of all liability as respects
Landlord’s obligations thereafter to be performed hereunder, provided that any funds in the hands
of Landlord or the then grantor at the time of such transfer, in which Tenant has an interest,
shall be delivered to the grantee. The obligations contained in this Lease to be performed by
Landlord shall, subject as aforesaid, be binding on Landlord’s successors and assigns only during
their respective periods of ownership.
(g) For all issues which are Site-specific, this Lease shall be governed by and construed and
enforced in accordance with and subject to the laws of the state where the applicable Site is
located, and for all issues which are not Site-specific, the internal laws, without regard to
conflicts of laws principles of the State of Illinois shall govern.
(h) Any claim based on or in respect of any liability of Landlord under this Lease shall be
enforced only against the Premises and Landlord’s insurance covering the Premises and
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not against any other assets, properties or funds of (1) Landlord or any Landlord Parties, or
(2) any predecessor or successor partnership, corporation or limited liability company (or other
entity) of Landlord or any of its members, stockholders or partners, either directly or through
Landlord or its predecessor or successor partnership, corporation or limited liability company (or
other Person) of Landlord or its members, stockholders or partners, or (3) any other Person.
(i) Without the written approval of Landlord and Tenant, no Person other than Landlord
(including any Landlord Parties), Mortgagee, Tenant, Leasehold Mortgagee, and their respective
permitted successors and assigns shall have any rights under this Lease.
(j) There shall be no merger of the leasehold estate created hereby by reason of the fact that
the same Person may own, directly or indirectly, (1) the leasehold estate created hereby or any
interest in this Lease or such leasehold estate and (2) the fee estate in the Premises.
Notwithstanding any such combined ownership, this Lease shall continue in full force and effect
until terminated by an instrument executed by both Landlord and ▇▇▇▇▇▇.
(k) Whenever in this Lease either party is required to take an action within a particular time
period, delays caused by acts of God, war, major casualty, strike, labor shortage or other cause
beyond the reasonable control of such party shall not be counted in determining the time in which
such performance must be completed (except in the case of the obligation to pay money) so long as
such party, promptly after becoming aware of the commencement of such delay, shall give the other
party notice thereof and estimating the duration thereof.
(l) If at any time a dispute shall arise as to any amount to be paid by one party to the other
hereunder, the obligor may make payment “under protest,” and such payment shall not be deemed a
voluntary payment, and the right of the obligor to contest its liability for such payment shall
survive such payment without prejudice to the obligor’s position.
(m) ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ each represent that they have dealt with no broker, finder or other
Person who could legally charge a commission in connection with this Lease and the documents and
agreements referenced herein.
(n) Intentionally Omitted.
(o) The parties hereto specifically acknowledge and agree that, notwithstanding any other
provision contained in this Lease, it is the intent of the parties that their relationship
hereunder is and shall at all times be that of landlord and tenant, and not that of partners, joint
venturers, lender and borrower, or any other relationship other than that of a landlord and tenant.
The parties specifically acknowledge and agree that this Lease shall be treated as a “true lease,”
and that Landlord’s affiliates shall be considered the owner of the Underlying Premises for U.S.
federal, state and local income and franchise tax purposes, and any Canadian tax purposes, and
each party agrees not to take any position on any U.S. federal, state, local or Canadian income or
franchise tax return inconsistent with such treatment.
(p) The parties hereto specifically acknowledge and agree that time is of the essence with
regard to all obligations under this Lease.
(q) TO THE EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY
IN ANY ACTION OR
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PROCEEDING, AND WITH RESPECT TO ANY CLAIM ASSERTED IN ANY SUCH ACTION OR PROCEEDING, BROUGHT
BY EITHER OF THE PARTIES AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT’S USE OR OCCUPANCY OF
THE PREMISES, ANY CLAIM OF INJURY OR DAMAGE, OR ANY EMERGENCY OR OTHER STATUTORY REMEDY WITH
RESPECT THERETO.
29. INTENTIONALLY OMITTED
30. BUDGET
Tenant’s 2008 budget has been delivered to Landlord. Not later than September 15 of every
Lease Year, Tenant shall deliver a detailed operating budget, and a capital plan, both of which
shall be acceptable to Landlord in its sole discretion, for the following fiscal year for Tenant’s
Business to Landlord substantially in the same form as the budget for fiscal year 2008. Not later
than October 1, and not later than seven (7) days after the end of each fiscal quarter, of each
Lease Year, Landlord and Tenant shall meet to discuss all aspects of the budget. At the end of
each fiscal quarter, Tenant shall prepare a “forecast” providing an updated income statement and
cash flow statement for the balance of such Lease Year. Such budget from time to time in effect is
herein called the “Budget.” If ▇▇▇▇▇▇’s actual EBITDA (computed in the same manner as in the
Budget) is below Budget by more than three percent (3%) on a quarterly basis, Landlord has the
right to increase the Reserve Account including additional restrictions on Tenant’s operating
account. The preceding shall not affect the calculation or permitted distribution of Available Cash
for purposes of paragraph 38(f) of this Lease except to the extent such cash was spent prior to the
calculation.
31. ACCOUNTS AND CASH MANAGEMENT
(a) Establishment of Lockbox and Cash Management System. Tenant shall maintain in
effect at all times during the Term a system of accounts and procedures reasonably satisfactory to
Landlord for the collection and deposit of payments in respect to Tenant’s Gross Revenues, and the
transfer of amounts so deposited or collected to the Collection Account and/or the Concentration
Account. Without limiting the generality of the foregoing, but subject to the provisions of
paragraph 31(c) of this Lease, Tenant shall maintain one or more lockboxes pursuant to
arrangements reasonably satisfactory to Landlord and shall deliver notices to all Members and all
other debtors of Tenant, directing such Persons to make all payments with respect to Membership
Dues, Membership Contract Receivables or other amounts directly to such lockboxes or directly to
the Chase Accounts, if such payment is made by wire transfer or other electronic means.
(b) Establishment of Accounts.
(i) Collection Account. Tenant hereby confirms that ▇▇▇▇▇▇ has established, and
agrees that Tenant shall maintain, at Bank, a segregated collection account with the account number
0042084673 (the “Collection Account”). The Collection Account shall be and hereby is pledged to
Landlord as additional security for the payment, performance and observance of Tenant’s obligations
under this Lease and Landlord shall have sole and exclusive dominion and
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control over the Collection Account, to be administered in accordance with this Lease. Funds
on deposit in the Collection Account shall be automatically transferred each day to the
Concentration Account described below.
(ii) Other Accounts. Tenant hereby confirms that ▇▇▇▇▇▇ has established, and agrees
that Tenant shall maintain at Cash Management Bank, the following segregated securities account or
deposit account, as the case may be (collectively, the “Reserve Accounts”):
(A) Account No. 4770001590, captioned “Reserve” for the payment of expenses relating to the
Property or its operations as approved by Landlord (“Reserve Account”).
(B) Account No. 4770001612, captioned “Promotions and Discounts Reserve” for the retention of
collateral in respect of any promotions and discounts as provided in paragraph 39 of this
Lease (“Promotions and Discounts Reserve Account”).
In addition to the foregoing, Landlord and Tenant have established, and Tenant and Landlord
shall maintain at Cash Management Bank, the “Concentration Account,” namely Account No. 4770001582
captioned “Concentration”.
In
addition to the foregoing, Landlord and Tenant have established, and
Tenant and Landlord shall maintain, the Chase Accounts. Funds in the
Chase Accounts shall be automatically transferred each day to the
Collection Account.
The
Chase Accounts, Reserve Account, Promotions and Discounts Reserve Account, and Concentration Account each
shall be pledged to Landlord as additional security for the payment, performance and observance of
Tenant’s obligations under this Lease, and Landlord shall have sole and exclusive dominion and
control over said Accounts to be administered in accordance with this Lease. Except as provided in
paragraph 31(e)(iii) the funds in the Accounts (other than the
Chase Accounts and the Concentration Account) shall
not be drawn down and shall at all times remain fully funded as a reserve. The amounts in such
Accounts (other than the Chase Accounts and the Concentration Account) shall increase or decrease as the purposes for
which they are funded shall increase or decrease at Landlord’s reasonable determination. At the
end of the Term, all amounts in all Accounts, including the Concentration Account, shall be
distributed to a successor Tenant to whom the Membership Contracts are transferred pursuant to
paragraph 22(f) of this Lease.
The Frisco Accounts have been, and shall continue to be, pledged to
Landlord as additional security for the payment, performance and observance of Tenant’s obligations
under this Lease, and Landlord has, and until the end of the Term, shall have, control (as defined
in Sections 9-104 or 8-106 of the UCC) over said Accounts for purposes of perfecting Landlord’s
security interests therein.
Tenant shall continue to maintain the tri-party deposit account control and intercreditor
agreement (the “Replacement ▇▇▇▇▇▇▇ Control Agreement”), among ▇▇▇▇▇▇▇ Bank Corporation, Landlord,
and Tenant and/or one or more of its Subsidiaries, as applicable, (the “Existing ▇▇▇▇▇▇▇ Accounts”)
(iii) Type and Control of Accounts. Tenant represents, warrants, covenants and agrees
that (i) each of the Accounts is and shall be maintained either as a “deposit account” (as defined
in Section 9-102(a)(29) of the UCC) or as a “securities account” (as defined in Section 8-501(a) of
the UCC); (ii) Tenant is entitled to exercise the rights that comprise any financial asset credited
to any such Accounts constituting a securities account; (iii) Tenant shall have no right to give
entitlement orders with respect to the Collection Account, the
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Concentration Account, the Chase Account or the Reserve Accounts and, except as expressly
provided in this Agreement, no Account Collateral shall be released to Tenant from any Accounts or
Local Accounts; and (iv) all securities or other property underlying any financial assets credited
to the Accounts shall be registered in the name of Bank or indorsed to Bank or in blank and in no
case will any financial asset credited to the Accounts be registered in the name of Tenant, payable
to the order of Tenant or specially indorsed to Tenant.
(iv) Eligible Accounts. Each of the Accounts and each of the Local Accounts shall be
an Eligible Account.
(v) Account Control Agreements. Tenant agrees that: (i) the Accounts and the Local
Accounts shall be maintained in accordance with the terms hereof; (ii) Landlord and Tenant (for
itself or on behalf of Tenant’s Subsidiaries) shall enter into such cash management agreements and
tri-party account control agreements with applicable banks and/or depositories as necessary to
effectuate the terms and conditions of this paragraph 31; and (iii) prior to the Lease
Expiration Date (provided no Event of Default shall have occurred), no tri-party account control
agreement entered into in connection with any Account (or, to the extent applicable, any Local
Account) shall be amended, supplemented or modified without the prior written consent of Landlord,
which consent Landlord may grant or withhold in its sole and absolute discretion.
(vi) No Other Accounts. Tenant represents and warrants that Exhibit I
attached hereto lists all deposit, securities or other similar accounts owned or maintained by
Tenant and its Subsidiaries and that other than (a) the Accounts and the Chase Accounts maintained
by Tenant with respect to the collection of Membership Contract Receivables or Membership Dues, (b)
the Local Accounts with respect to Ancillary Income and (c) the Canadian Accounts, there are no
accounts into which any Gross Revenue (including payments of Membership Contract Receivables or
Membership Dues or any material Ancillary Income) is or shall be deposited, collected or held.
Tenant agrees that, until the Lease Expiration Date, neither Tenant nor any other Person shall open
any accounts for the collection or holding of Membership Dues or Membership Contract Receivable
proceeds, other than the Accounts and the Chase Accounts (and the Local Accounts and the Canadian
Accounts, to the extent expressly permitted hereunder). Tenant represents and covenants to
Landlord that Tenant shall not direct any Membership Dues or payments with respect to Membership
Contract Receivables to be made by any Member in any manner other than as set forth in
paragraph 31(c)(ii) of this Lease and that Tenant shall use commercially reasonable efforts
to prevent, discourage and minimize payment of Membership Dues at campgrounds and, except for
de minimis amounts consistent with past practices, Tenant shall not deposit any Membership Dues
into the Local Accounts (other than the Chase Accounts).
(vii) Miscellaneous Account Provisions. The Accounts shall be subject to such
applicable laws, and such applicable regulations of the Board of Governors of the Federal Reserve
System and of any other banking or governmental authority, as may now or hereafter be in effect.
Interest accruing on the Accounts, if any, shall be periodically added to the principal amount of
the applicable Account and shall be held, disbursed and applied in accordance with the provisions
of this Agreement. All statements relating to the Accounts shall be issued simultaneously by Bank
to Landlord and Tenant. Tenant shall be the beneficial owner of the Accounts and the Local
Accounts for federal and state income tax purposes and shall report all
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income on the Accounts and the Local Accounts. Returned items in the Collection Account will
be charged against Tenant in the succeeding month or, if later, when actually returned.
(c) Deposits into Accounts.
(i) Intentionally Deleted.
(ii) Payments Under Membership Contracts. Tenant represents and warrants that it has
now or heretofore instructed, with respect to all Membership Contracts in effect on the date
hereof, and hereby agrees that with respect to all future Membership Contracts it shall,
irrevocably instruct and direct all Members to send or otherwise remit all Membership Dues and
proceeds from Membership Contract Receivables (i) directly into the Chase Accounts by ACH or wire
transfer, (ii) by check sent to the Lockboxes, (iii) by debit or credit card (including internet or
telephone charge authorizations) to Equiant Financial Services, Inc. for the account of Tenant,
(iv) in person by check or by debit or credit card (including telephonic charge authorizations) at
Tenant’s offices located either at Gautier, Mississippi or Frisco, Texas, or (v) in the case of
Members with respect to campgrounds located in or near Canada, for deposit into designated Canadian
Accounts. Tenant shall not permit payments pursuant to Membership Contracts to be paid to any
other Person or direct or cause any Members to pay in any manner other than as specifically
provided herein. Nothing herein is intended or shall be construed to prohibit Tenant or Tenant’s
Subsidiaries from accepting payment of Membership Dues or Membership Contract Receivables, as and
when tendered by a Member at a campground, consistent with past practice. For purposes of this
paragraph, “Lockboxes” shall mean those certain lockbox accounts maintained by Equiant Financial
Services, Inc. for the accounts of its clients, including Tenant and Tenant’s Subsidiaries, at
Chase Bank USA, N.A. bearing the designation P.O. Box 78843, or such other replacement lockbox
accounts as consented to by Landlord in writing.
(iii) Continuing Deposits. Without limiting or qualifying the provisions of
paragraph 31(c)(ii) of this Lease, ▇▇▇▇▇▇ agrees that all Membership Dues, proceeds from
Membership Contract Receivables and any other Gross Revenue (excluding interest and other earnings
on deposits and other income on accounts other than the Accounts) shall be deposited into the
Collection Account within five (5) Business Days after receipt thereof by Tenant. Until so
deposited, any such Gross Revenues (including all Membership Dues, Membership Contract Receivables
payments or proceeds from any property disposition) that are held by Tenant shall be deemed to be
Account Collateral and shall be held in trust by Tenant for the benefit of Landlord, as secured
party, and shall not be commingled with any other funds or property of Tenant. Subject to the
provisions of paragraph 30, without limiting or qualifying any other provision of this Agreement,
Tenant hereby agrees to transfer to the Collection Account, not less frequently than once per week,
funds from time to time on deposit in any Canadian Account.
(d) Transfers From the Concentration Account; Funding of Reserve Accounts.
(i) Authorization (Reserve Account). Subject to paragraph 31(d)(ii) below,
Tenant hereby irrevocably authorizes and directs Landlord, from time to time and at any time during
the period beginning on January 1st through and including December 31st of each year, commencing on
the Effective Date of Restatement, to transfer (to the extent of available funds on
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deposit), and Landlord shall, commencing on such date, transfer, from the Concentration
Account on each Business Day), funds in the following amounts and in the following order of
priority, as such amounts may be adjusted by Landlord from time to time in its reasonable
discretion:
(A) Twelve Million Dollars ($12,000,000) to the Reserve Account; and
(B) funds into the Promotions and Discounts Reserve Account in an amount
specified in paragraph 39 of this Lease; and
(C) the balance, if any, of all funds shall remain in the Concentration Account
in such deposit or securities account designated by Tenant, which accounts need not
be Permitted Investments.
(ii) Concentration Account. All funds deposited into the Concentration Account shall
remain in such Account as security for the performance of Tenant’s obligations under the Lease,
except that so long as no Event of Default has occurred hereunder, on the last day of each month or
more frequently, Landlord, after confirming that all payments and adjustments required to be made
have been made under the Lease, shall make payments therefrom into Tenant’s operating account to
enable Tenant to pay for expenses in accordance with, and in amounts provided by, the current
budget approved by Landlord in accordance with paragraph 30.
(iii) Rent and Indebtedness and Interest Payments. Tenant hereby irrevocably
authorizes Landlord to pay (1) Fixed Rent due hereunder, using any funds on deposit in the Reserve
Account and (2) any amounts due on the Working Capital Loan using any funds on deposit in the
Reserve Account, and Landlord shall pay such amounts due and payable in Landlord’s sole and
absolute discretion.
(e) Payments and Disbursements from Accounts.
(i) No Event of Default. Except as set forth in paragraphs 31(d)(ii) and
31(e)(iii) hereof, no payment shall be made from the applicable Accounts and the Accounts shall
remain fully funded for the duration of the Term, as the Term may be extended.
(ii) Event of Default Exists. If an Event of Default exists, Tenant hereby
irrevocably authorizes Landlord to make any and all withdrawals from, and transfers between, any
Accounts as Landlord shall determine in Landlord’s sole and absolute discretion.
(iii) If Tenant does not have funds available, either in the Concentration Account or
otherwise, to pay Property Taxes, Other Taxes, income taxes, premiums on the Policies or Promotions
and Discounts, it may request Landlord to make distributions from the Accounts for such purposes.
Any such request shall be accompanied by evidence, satisfactory to Landlord, that such funds are
required, and that there are no funds available to Tenant either in the Concentration Account or
elsewhere. Thereupon, Landlord shall, provided no Event of Default is then existing, direct that
such payments be made, provided, however, that any Account from which such payment is made shall be
promptly replenished from any revenues received by the Tenant prior to any revenue being allocated
to any other use.
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(f) Accounts. Tenant shall not, without the prior written consent of Landlord, change
the account location of any Account and, as a condition precedent to any such change, the bank to
which ▇▇▇▇▇▇ proposes to relocate any such Account shall have executed an appropriate account
control agreement, in accordance with the provisions set forth above. Tenant shall not, without
giving prior written notice to Landlord, change the account location of any Local Account. Tenant
hereby authorizes Landlord to direct the Bank and Cash Management Bank to take all actions
authorized hereunder without notice of any kind to Tenant. With respect to the Account Collateral,
Landlord shall not be liable for any acts, omissions, errors in judgment or mistakes of fact or
law, except for those arising as a result of Landlord’s investment of such Account Collateral in
other than Permitted Investments or from Landlord’s gross negligence or willful misconduct.
(g) Certain Matters Regarding Landlord following an Event of Default. Tenant agrees
that the Bank and Cash Management Bank, as applicable, shall pay over to Landlord all amounts
deposited in the Accounts and the Local Accounts on demand, without notice to Tenant, if, in making
such demand, Landlord shall give notice, in writing, signed by Landlord or an authorized agent
thereof, that an Event of Default exists. Landlord may exercise in respect of the Account
Collateral all rights and remedies available to Landlord hereunder, or otherwise available at law
or in equity. If an Event of Default exists, Landlord may exercise in respect of the Account
Collateral, in addition to any other rights and remedies provided for herein or otherwise available
to it, all of the rights and remedies of a secured party upon default under the UCC then in effect
in the applicable jurisdiction. Without limiting the generality of the foregoing, ▇▇▇▇▇▇ agrees
that, upon the occurrence and during the continuance of an Event of Default, it will have no
further right to request or otherwise require Landlord to disburse funds from any Account in
accordance with the terms of this Lease, it being agreed that Landlord may, at its option, (i)
direct the Bank or Cash Management Bank, as applicable, to continue to hold the funds in the
Accounts, (ii) continue, from time to time, to apply all or any portion of the funds held in the
Accounts to any payment(s) which such funds could have been applied to prior to such Event of
Default (or to pay expenses directly), to the extent and in such order and manner as Landlord in
its sole discretion may determine, and/or (iii) direct the Bank or Cash Management Bank, as
applicable, to disburse all or any portion of the funds held in the Reserve Accounts or other
Account Collateral then or thereafter held by the Bank or Cash Management Bank to Landlord, in
which event Landlord may apply the funds held in the Accounts, the Local Accounts (to the extent
not yet transferred to the Accounts) or other Account Collateral to Tenant’s obligations under this
Lease, in any order and in such manner as Landlord may determine in its sole discretion. If an
Event of Default exists, Landlord may, at any time or from time to time: (1) collect, appropriate,
redeem, realize upon or otherwise enforce its rights with respect to the Account Collateral, or any
part thereof, without notice to Tenant and without the need to institute any legal action, make
demand to or upon Tenant or any other Person, exhaust any other remedies or otherwise proceed to
enforce its rights; (2) execute (in the name, place and stead of Tenant) any endorsements,
assignments or other instruments of conveyance which may be required for the withdrawal and
negotiation of the Account Collateral; and/or (3) exercise all other rights and remedies available
to Landlord hereunder. Notwithstanding anything to the contrary contained herein: (x) the
exercise by Landlord of any of its rights hereunder shall not release Tenant from its obligations
under this Lease, nor shall it constitute an election of remedies by Landlord or a waiver by
Landlord of any of its rights and remedies under this Lease; (y) except as expressly set forth in
this Lease, Landlord shall not have any obligation or liability by reason of this Lease, nor shall
Landlord be obligated to perform any of the obligations or
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duties of Tenant hereunder or to take any action, in each case, to collect or enforce any
claim for payment assigned hereunder; and (z) Landlord shall not have to resort to using the
Account Collateral before making demand upon or bringing an action against Tenant under any
guaranty given in connection with this Lease. No failure on the part of Landlord to exercise, and
no delay in exercising, any right under this Lease shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right under this Lease. The remedies provided in this Lease are cumulative
and not exclusive of any remedies provided at law or in equity.
(h) Representations and Warranties Regarding Account Collateral. . In addition to
any other representations or warranties contained in this Lease, Tenant represents and warrants as
follows: (a) Tenant is the legal and beneficial owner of the Account Collateral, free and clear of
any Liens, except for the Liens in favor of Landlord created by this Lease and ▇▇▇▇▇ on the
Membership Contract Receivables arising under the Working Capital Loan Documents; (b) upon
execution by Tenant of this Lease, the pledge and assignment of the Account Collateral pursuant to
this Lease will create a valid, first priority security interest in the Account Collateral (subject
to the Liens on the Membership Contract Receivables arising under the Working Capital Loan
Documents), securing the payment and performance of Tenant’s obligations under this Lease,
specifically excluding receivables held by the Canadian debtor, for which no representation is
made; and (c) Tenant is not a party to any credit agreement or other borrowing facility including,
but not limited to, a line of credit or overdraft line, with the Bank (other than with respect to
the Working Capital Indebtedness).
(i) Covenants Regarding Account Collateral and Finances of Tenant. Tenant shall not,
without the prior written consent of Landlord which may be granted or withheld in Landlord’s sole
and absolute discretion, (a) sell, assign (by operation of law or otherwise), pledge or grant any
option with respect to, any of the Gross Revenues or any interest in the Account Collateral or (b)
create or permit to exist any assignment, lien, security interest, option or other charge or
encumbrance upon or with respect to any of the Gross Revenues or any Account Collateral, except for
the Liens in favor of Landlord under this Lease and Liens on Membership Contract Receivables under
the Working Capital Loan Documents or (c) except as otherwise permitted by paragraph 38(d), make or
receive or allow another party than Landlord or its designee to make or receive any distribution
from the Accounts or (d) except as otherwise permitted by paragraphs 38(d), 38(f)
and 38(j), receive, or allow any party other than Landlord or its designee to receive, any
revenues derived from the Premises. Tenant shall give Landlord not less than fifteen (15) days’
prior written notice of any change in the address of the chief executive office or principal office
of Tenant. ▇▇▇▇▇▇ agrees that all records of Tenant with respect to the Account Collateral shall
be kept at the principal office of Tenant and shall not be removed therefrom without the prior
written consent of Landlord, which consent shall not be unreasonably withheld. Tenant shall not
make or consent to any amendment or other modification or waiver with respect to any Account
Collateral, or enter into any agreement, or permit to exist any restriction, with respect to any
Account Collateral. Tenant shall, at its expense, defend ▇▇▇▇▇▇▇▇’s right, title and security
interest in and to the Account Collateral against the claims of any Person. Tenant shall not take
any action which would impair the enforceability of this Lease or the security interests created
hereby. Tenant shall not enter into any credit agreement or other borrowing facility including a
line of credit or overdraft line, without Landlord’s consent which Landlord may grant or withhold
in its sole and absolute discretion. Nothing contained in this paragraph shall impair or otherwise
limit Tenant’s
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obligations to timely make the payments required by this Lease, it being understood that such
payments shall be so timely made in accordance with this Lease, regardless of the amounts on
deposit in any Account. With respect to the powers conferred on Landlord hereunder, Landlord shall
not have any duty as to the Accounts or the other Account Collateral, or any responsibility for (i)
ascertaining or taking action with respect to any matters relative to the Accounts or the other
Account Collateral, whether or not Landlord has or is deemed to have knowledge of such matters
(except with respect to Landlord’s obligations relating to the payment of Property Taxes and Other
Taxes as expressly provided herein) or (ii) taking any necessary steps to preserve rights against
prior parties or any other rights pertaining to the Accounts or the other Account Collateral.
(j) Cash Management Fees. All reasonable third party fees, costs and expenses
associated with the Account Collateral shall be paid by Tenant when due.
(k) Security Interest. Tenant hereby pledges, transfers and assigns to Landlord, and
grants to Landlord, as additional security for Tenant’s obligations under this Lease, a continuing
perfected first priority security interest in and to, and a first lien upon: (i) the Accounts and
Local Accounts owned by it from time to time, now existing or hereafter arising, and all amounts
which may from time to time be on deposit in each of such Accounts and Local Accounts (such first
lien is subject to the Lien on Membership Contract Receivables under the Working Capital Loan
Documents); (ii) all of Tenant’s right, title and interest in and to all cash, property or rights
transferred to or deposited in each Account and each Local Account from time to time; (iii) all
certificates and instruments, if any, from time to time representing or evidencing the Accounts or
Local Accounts or any amount on deposit in any thereof, or any value received as a consequence of
possession thereof, including all interest, dividends, cash, instruments and other property from
time to time received or otherwise distributed in respect of, or in exchange for, any or all of
such Accounts or Local Accounts; (iv) all monies, chattel paper, checks, notes, bills of exchange,
negotiable instruments, documents of title, money orders, commercial paper, and other security
instruments, documents, deposits and credits from time to time in the possession of Landlord
representing or evidencing such Accounts or Local Accounts; (v) all other property, held in,
credited to or constituting part of any of the Accounts or Local Accounts; (vi) all earnings and
investments held in any Account or Local Account in accordance with this Lease; and (vii) to the
extent not described above, any and all proceeds of the foregoing (collectively, the “Account
Collateral”). This Lease and the pledge, assignment and grant of security interest made hereby
secure payment of all of Tenant’s obligations under this Lease in accordance with the provisions
set forth herein. This Lease shall be deemed a security agreement within the meaning of the UCC.
(l) Bank Accounts. Tenant shall not establish any new bank accounts without prior
written notice to Landlord and, except with respect to Local Accounts (other than the Chase
Accounts and the Frisco Accounts), unless Landlord, such Tenant and the bank at which the account
is to be opened enter into a tri-party agreement regarding such bank account pursuant to which such
bank, among other things, acknowledges the security interest of Landlord in such bank account,
agrees to comply with instructions originated by Landlord directing disposition of the funds in the
bank account without further consent from Tenant, and agrees to subordinate and limit any security
interest the bank may have in the bank account on terms satisfactory to Landlord.
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(m) As part of Tenant’s cooperation with ▇▇▇▇▇▇▇▇’s financing set forth in paragraph
27 of this Lease and the granting of any Mortgage to any Mortgagee, ▇▇▇▇▇▇ agrees that the
Accounts and each management system in place under this Lease may be assigned to and controlled by
Mortgagee so long as ▇▇▇▇▇▇’s rights under this paragraph 31 are not diminished or
obligations increased and Tenant shall cooperate with such efforts and execute such documents as
are required thereby.
32. NOTICES
Notices, statements, demands or other communications required or permitted to be given,
rendered or made by either party to the other pursuant to this Lease or pursuant to any applicable
law or requirement of public authority, shall be in writing (whether or not so stated elsewhere in
this Lease) and shall be deemed to have been properly given, rendered or made when received by
personal delivery or overnight delivery or overnight courier delivery (or, if such delivery is
refused, upon the date that delivery would have occurred but for such refusal) or facsimile
transmission (with electronic confirmation therefor) with a confirmation copy of the entire
original transmittal sent by overnight delivery or by overnight courier delivery addressed to the
other parties as follows:
| To Landlord: | MHC TT Leasing Company, Inc. | |||
| c/o Equity LifeStyle Properties, Inc. | ||||
| Two North Riverside Plaza, Suite 800 | ||||
| Chicago, IL 60606 | ||||
| Attention: General Counsel | ||||
| Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| With a copy to: | Equity LifeStyle Properties, Inc. | |||
| Two North Riverside Plaza, Suite 800 | ||||
| Chicago, IL 60606 | ||||
| Attention: Chief Executive Officer | ||||
| Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| With a copy to: | ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP | |||
| ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ | ||||
| Chicago, IL 6-6-6 | ||||
| Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. | ||||
| Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| To Tenant: | Thousand Trails Operations Holding Company, L.P. | |||
| c/o Thousand Trails, LP | ||||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇ | ||||
| Frisco, TX 75034 | ||||
| Attention: Chief Financial Officer | ||||
| Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ |
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| With a copy to: | Thousand Trails Operations Holding Company, L.P. | |||
| c/o Thousand Trails, L.P. | ||||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇ | ||||
| Frisco, TX 75034 | ||||
| Attention: Legal Department | ||||
| Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ |
Any party listed in this paragraph 32 may, by notices as aforesaid, designate a different
address for notices, statements, demands or other communications intended for it.
33. EXCESS LAND
(a) Landlord and Tenant acknowledge and agree that Landlord, or an affiliate of Landlord (the
“Excess Land Owner”) is the owner of the Excess Land, and, except for the revocable license
provided in paragraph 2(e), Tenant disclaims any right, title or interest in the Excess
Land. ▇▇▇▇▇▇▇▇ has advised Tenant that Excess Land Owner may, in its sole and absolute discretion,
develop any or all of such Excess Land in any manner and for any reason whatsoever.
(b) ▇▇▇▇▇▇ agrees and acknowledges that it has a good faith obligation to cooperate with
Landlord (or Landlord’s affiliate) in Landlord’s (or Landlord’s affiliate’s) development of the
Excess Land, including the execution of releases or quit claims affecting such Excess Land and
participation and cooperation in any zoning or other land use petitions. ▇▇▇▇▇▇ agrees that
failure to so cooperate with Landlord shall constitute a material breach of this Lease. Tenant
hereby agrees and acknowledges that Landlord or Landlord’s affiliate may transfer or sell the
Excess Land or any portion thereof at any time to another affiliate of Landlord or to any third
party without Tenant’s consent.
(c) Determination of whether any portion of the Premises consists of Excess Land shall be made
by Landlord in its sole and absolute discretion.
34. CAPITAL IMPROVEMENTS
(a) Landlord Capital Improvements. Landlord shall have the right, in its sole and
absolute discretion, to make improvements to the Improvements at Landlord’s expense. Landlord
shall perform such improvements in a good and workmanlike manner. Landlord shall consult with
Tenant regarding such improvements.
(b) Capital Improvement Fund. During the Term of the Lease, Landlord shall
reimburse Tenant up to $5,000,000 (in the aggregate) for the cost of improvements made to the
Improvements by Tenant during the Term of the Lease, provided that Tenant complies with the
requirements of this Section 34(b) with respect to all such improvements to the Improvements.
Such improvements shall require Landlord’s prior written consent; shall be capitalizable in
accordance with GAAP and shall be made by Tenant in accordance with the procedures set forth
in paragraph 23. Landlord shall fund the cost of such improvements on a weekly basis upon
presentation by Tenant of invoices for the work performed. All
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improvements to the Improvements paid for by Landlord under this Section 34 shall be
the property of Landlord.
35. RESTATMENT BONUS.
Upon the Effective Date of Restatement, Landlord shall deposit $1,000,000 into Tenant’s
operating account as partial consideration for Tenant’s agreement to the amendment and restatement
of this Lease. The parties agree that Tenant may use such funds for working capital purposes.
36. REPLACEMENT OF SITES.
Landlord shall have the option, in its sole and absolute discretion, to remove any Site from
this Lease (the “Removed Site”) on the following terms:
(i) Landlord provides sixty (60) days prior written notice to Tenant;
(ii) If required by law or a Membership Contract to withdraw and substitute a membership
campground, Landlord will substitute a property for the Removed Site which (i) is suitable for the
purpose of running a membership campground, (ii) is in the same general area and has reasonably
comparable amenities as the Removed Site, (iii) is equally as desirable a location for selling
Memberships as the Removed Site, and (iv) satisfies any requirements imposed by law relating to the
withdrawal and substitution of a membership campground;
(iii) If Landlord sells the Removed Site to a third party, Landlord shall have the right, at
its sole discretion, to apportion a portion of the proceeds received in such sale to Tenant as
consideration for the right to remove the Removed Site from the Lease;
(iv) There shall be no modification to the payment of Rent hereunder; provided that, (i) if
▇▇▇▇▇▇▇▇ fails to substitute a property for the Removed Site, Landlord and ▇▇▇▇▇▇ will negotiate a
fair and equitable reduction of Rent hereunder;
(v) Landlord agrees to enter into an indemnification agreement with Tenant whereby Landlord
agrees to indemnify Tenant for any loss or expense incurred in connection with such removal of a
Site solely as a result of a claim by either a Member or a government agency that such removal of a
Site was a violation of a Membership Contract or a violation of law; and
(vi) the Budget shall be adjusted in an equitable manner.
37. ▇▇▇▇▇▇▇ RESTRICTIONS
▇▇▇ ▇▇▇▇▇▇▇, irrespective of his affiliation with Landlord, shall have no authority, on behalf
of Landlord or its affiliates, to enter into any agreement with any entity controlling, controlled
by or affiliated with Tenant, PA or any of their affiliates including, without limitation, any
amendment, alteration or modification of this Lease.
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38. AFFIRMATIVE, NEGATIVE AND FINANCIAL COVENANTS OF TENANT
(a) During the Term of this Lease, all of the business and operations of Tenant and its
Subsidiaries as conducted prior to the date hereof by such entities and their predecessors
(“Tenant’s Business”) shall continue to be operated by Tenant and its Subsidiaries after the date
hereof, and Tenant and Tenant’s Subsidiaries, as applicable, shall not engage in any business other
than Tenant’s Business. Tenant’s Business is the operation and management of (i) membership
campgrounds, (ii) reciprocal use and affiliation programs for use of campgrounds, (iii) management
of campgrounds and membership programs for third parties, including the United States Forest
Service and affiliates of Equity Lifestyle Properties, Inc. and (iv) other business related and
ancillary to the businesses described in clauses (i), (ii) and (iii), above. Without limiting the
generality of the foregoing, Tenant shall not operate any portion of Tenant’s Business other than
directly itself or through its Subsidiaries. In furtherance thereof, except as otherwise expressly
provided herein, Tenant shall not and shall not permit its Subsidiaries to authorize, issue or
enter into any agreement providing for the issuance (contingent or otherwise) of (x) any notes or
debt securities containing equity features, including any notes or debt securities convertible into
or exchangeable for equity securities, issued in connection with the issuance of equity securities
or containing profit participation features, (y) any equity securities (or any securities
convertible into or exchangeable for any equity securities), or (z) any capital appreciation or
profit participation rights. Subject to the provisions of paragraph 25 of this Lease, at
no time shall Tenant (1) cease to, directly or indirectly, own and control one hundred percent
(100%) of each class of the outstanding equity interests of each Subsidiary or (2) own any asset,
directly or indirectly, other than its ownership interests in the Subsidiaries and its membership
interest in Thousand Trails Insurance Group, LLC. Tenant may not acquire or form any corporations,
partnerships, limited liability companies, associations or other business entities unless such
entities are wholly owned and controlled by Tenant and Landlord shall have received (x) a
Subsidiary Pledge, by which such entity pledges one hundred percent (100%) of its assets to
Landlord, (y) a joinder to the Subsidiary Guaranty, in the form attached thereto and (z) a
replacement Tenant Pledge, by which Tenant shall pledge to Landlord one hundred percent (100%) of
the ownership interest in each Subsidiary, including the entity or entities contemplated by this
paragraph 38(a).
(b) Tenant shall not directly or indirectly create, incur, assume or otherwise become or
remain, directly or indirectly, liable with respect to any Indebtedness except for (i) the
obligations of Tenant under this Lease, (ii) the Working Capital Indebtedness, and (iii) any other
Indebtedness approved by Landlord, which approval shall be granted or withheld in Landlord’s sole
and absolute discretion.
(c) Tenant shall not permit any of its Subsidiaries directly or indirectly, to create, incur
or otherwise become or remain, directly or indirectly, liable with respect to any Indebtedness
except for (i) ordinary and customary trade payables which are incurred in the ordinary course of
its business provided that not more than $1,000,000 of which, in the aggregate at any time
outstanding, are more than ninety (90) days overdue, (ii) the obligations of the Subleasing
Subsidiaries under the Tenant Subleases, and (iii) any other Indebtedness incurred as a co-borrower
with or guarantor of Tenant (provided such other Indebtedness is permitted by paragraph
38(b), above).
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(d) Tenant shall not nor shall it permit any of its Subsidiaries directly or indirectly to
convey, sell, lease, sublease, transfer or otherwise dispose of, or grant to any Person an option
(other than the Option Agreement and the PA Option) to acquire, in one transaction or a series of
related transactions, any of its property, business or assets, or the capital stock of or other
equity interests in any of its Subsidiaries, whether now owned or hereafter acquired except as
otherwise consented to by Landlord in advance in writing in its sole and absolute discretion.
(e) Tenant shall not nor shall it permit any of its Subsidiaries to acquire any assets except
as specifically permitted in this Lease and as may otherwise by permitted by Landlord in its sole
and absolute discretion.
(f) Tenant shall not nor shall Tenant permit any of its Subsidiaries directly or indirectly to
declare, order, pay, make or set apart any sum for any Restricted Junior Payment, except (i) for
distributions in cash from Tenant’s operating account to Tenant’s equity holders in an aggregate
amount each calendar year equal to (x)(1) the amount of taxable income of Tenant allocated to its
equity holders for such calendar year multiplied by (2) the combined maximum federal and state
income tax rate to be applied to such taxable income (calculated by using the highest maximum
combined marginal federal and state income tax rates for an individual resident of the relevant
state of residence of Tenant’s principal indirect individual equity holder and taking into account
the deductibility of state income tax for federal income tax purposes) and (y) an additional
aggregate amount of $200,000 in any twelve month period; (ii) a distribution or loan to PA, at the
sole discretion of PA, as of the date hereof in an amount equal to $4,000,000; and (iii) a
distribution or loan to PA, at the sole discretion of PA, on the third (3rd) anniversary of the
Date of Restatement in an amount equal to $2,000,000, but only to the extent that such amount does
not exceed the Available Cash, provided that Landlord hereby permits Tenant to set apart an amount
equal to $55,555 per month for the thirty six (36) months ending 12/31/2010 into a separate account
which funds shall be usable for the purpose of making such $2,000,000 distribution to PA (each
distribution contained in clauses (i), (ii) and (iii) being a “Permitted Distribution”). Landlord
and ▇▇▇▇▇▇ acknowledge and agree that the Permitted Distributions are not intended to be
compensation to the owners of Tenant’s parent. Conditions precedent to a Permitted Distribution
are (i) no Event of Default is existing at the time of the Permitted Distribution and (ii) prior
approval of the Permitted Distribution by the Board of Directors (or other governing bodies) of PA
and Tenant has been obtained.
(g) Guarantor shall at all times continue to, directly or indirectly, own and control one
hundred percent (100%) of the outstanding equity interests of Tenant. Additionally, Guarantor
shall cause Tenant to not own any assets, directly or indirectly, other than the assets in
existence on the date of this Lease or otherwise acquired in accordance with this Lease and
Tenant’s Business.
(h) None of Tenant, any direct or indirect holder of any Tenant Equity Interest or any
Affiliate of Tenant (together, the “Restricted Holders”) shall own, individually or collectively
with any other Restricted Holders, ten percent (10%) or more of any class or series of equity
interest of Equity LifeStyle Properties, Inc., MHC Trust or the Trust.
(i) ▇▇▇▇▇▇ agrees to cause the equity holders of PA and PATT to take all action necessary
including, but not limited to, the voting of their equity interests, the execution of written
consents, the calling of special meetings, the removal of directors, the filling of vacancies
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on the Board of Directors (or other governing body), the waiving of notice and the attending
of meetings, so as to cause, at Landlord’s sole discretion, up to two (2) designees of Landlord to
be members of each of such Boards of Directors (or other governing bodies) at all times.
(j) INTENTIONALLY OMITTED.
(k) Except for the distribution permitted by paragraph 38(f) of this Lease, Tenant shall not
allow ▇▇▇ ▇▇▇▇▇▇▇ to be paid, in the aggregate, either by itself or any Affiliate of Tenant, any
salary, bonus or other payments.
(l) Upon the death of or Disability of the then active chief executive of Tenant, or if the
then active chief executive of Tenant ceases to be an active chief executive of Tenant for any
other reason, Tenant shall appoint a substitute executive within ninety (90) days, whom Landlord
shall have the right to approve.
(m) Notwithstanding anything to the contrary contained herein, in the event of a Corporate
Control Event to which Landlord grants its consent as provided in this Lease, this Lease shall be
renegotiated at Landlord’s option upon terms and conditions satisfactory to Landlord.
39. PROMOTIONS AND DISCOUNTS RESERVE ACCOUNT
Tenant recognizes Landlord’s interest in continued annual dues payable under Membership
Contracts in order for proceeds to be available for the maintenance and delivery of services at the
Premises for the benefit of the holders of all Membership Contracts. As a result, ▇▇▇▇▇▇ agrees to
endeavor to continue to operate and to cause ▇▇▇▇▇▇’s Subsidiaries to continue to operate Tenant’s
Business in a manner which remains consistent with the relationship between usage benefits and
annual membership dues currently in existence as of the date of this Lease (such manner of
operation being referred to herein as “Tenant’s Manner of Operation”). If Tenant or any of
Tenant’s Subsidiaries pursue any marketing effort that would cause Tenant to materially and
adversely deviate from Tenant’s Manner of Operation, taking into account Tenant’s business as a
whole (such deviation shall be referred to herein as a “Variance Program”), then Tenant shall,
within five (5) Business Days after instituting such marketing effort, notify Landlord of such
Variance Program. Promptly thereafter, Landlord and Tenant shall use good faith efforts to
determine whether or not and to what extent Tenant shall be obligated to make a deposit into the
Promotions and Discount Reserve in connection with such Variance Program (“Variance Program
Deposit”) and upon such agreement, Tenant shall make such Variance Program Deposit into the
Promotions and Discount Reserve Account. Within ninety (90) days following the expiration of each
fiscal year of Tenant, Tenant shall furnish to Landlord a certificate of Tenant’s Chief Financial
Officer stating that in such officer’s good faith judgment, ▇▇▇▇▇▇ has not commenced and has not
permitted any of Tenant’s Subsidiaries to commence any Variance Programs during the preceding
fiscal year of Tenant other than those which Tenant has disclosed to Landlord. Variance Program
Deposits made into the Promotions and Discounts Reserve Account shall be made for the purposes of
establishing and maintaining a reserve (the “Promotions and Discounts Reserve”) for the payment of
any deficiencies in Tenant’s payment of Rent under this Lease. If Tenant or Tenant’s Subsidiaries
revise its marketing efforts in a manner that reinstitutes Tenant’s Manner of Operation (or
otherwise positively affects the relationship between usage benefits and annual membership dues),
then
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Tenant shall be entitled to withdraw funds from the Promotions and Discount Reserve, in
amounts and at times approved by Landlord, such approval not to be unreasonably withheld, delayed
or conditioned.
40. LANDLORD SUBORDINATION AND NON-DISTURBANCE
(a) Notwithstanding anything in this Lease to the contrary, Landlord hereby covenants and
agrees that:
(i) Its rights in each Resort (as hereinafter defined) shall be subordinate to the rights of
Purchasers (as hereinafter defined) from and after the date of this instrument;
(ii) In the event of the termination of this Lease or of Tenant’s possession of the Premises,
Landlord shall take each Resort subject to the use rights of Purchasers;
(iii) In the event of termination of this Lease or of Tenant’s possession of the Premises,
Landlord shall fully honor all rights of Purchasers to occupy and use any Resort as provided in the
Purchasers’ Camping Resort Contracts (as hereinafter defined);
(iv) In the event of termination of this Lease or of Tenant’s possession of the Premises,
Landlord shall fully honor all rights of Purchasers to cancel their Camping Resort Contracts and
receive appropriate refunds; and
(v) In the event of the termination of this Lease or of Tenant’s possession of the Premises,
Landlord shall not discontinue use of any Resort or cause or permit any Resort to be used in a
manner which would prevent or materially prevent or interfere with Purchasers from using or
occupying the Resort in the manner contemplated by the Purchasers’ Camping Resort Contracts.
However, except as required by applicable law, Landlord shall have no obligation or liability to
assume the responsibilities or obligations of Tenant or any of its Affiliates under the Camping
Resort Contracts.
(b) In the event of the termination of this Lease or of Tenant’s possession of the Premises
and Landlord does not continue to operate the Resort upon conditions no less favorable to
Purchasers than existed prior to the change of title or possession, Landlord and its successors and
assigns shall either:
(i) Offer the title to or possession of the Resort to an association of Purchasers to operate
the Resort; or
(ii) Obtain a commitment from another entity (which obtains title or possession to the Resort)
to undertake the responsibility of operating the Resort.
(c) The covenants contained herein may be enforced by each Purchaser of a Camping Resort
Contract, provided that the Purchaser is not in default under the terms of the Purchaser’s Camping
Resort Contract.
(d) The covenants contained herein shall be effective as between each Purchaser and Landlord
despite any rejection or cancellation of the Purchaser’s Camping Resort Contract during any
bankruptcy proceedings of Tenant or any of its present or future Affiliates.
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(e) The covenants and agreements contained herein shall inure to the benefit of and be binding
upon the successors and assigns of Tenant and Landlord.
(f) When used in this Section, each of the following terms shall be defined as set forth
below:
(i) “Purchaser” shall mean a person who enters into a Camping Resort Contract, whether before
or after the date hereof, and thereby obtains title to, an estate or interest in, or license or the
right to use the Resort.
(ii) “Camping Resort Contract” shall mean an agreement between (1) Tenant or any of its
present or future Affiliates or any predecessor in interest to Tenant or such Affiliates and (2) a
Purchaser evidencing the Purchaser’s title to, estate or interest in, or right or license to use
the Resort.
(iii) “Resort” means any campground located on or forming a part of the Premises.
The covenant of non-disturbance contained herein is made for the benefit of Tenant and Landlord and
each Purchaser and shall be binding upon and inure to the benefit of Tenant and Landlord and their
respective successors and permitted assigns and shall be binding upon and inure to the benefit of
each Purchaser and his or her respective successors and permitted assigns. On Tenant’s request,
Landlord shall cause to be delivered under the Master Leases a nondisturbance agreement to
Subleasing Subsidiaries, or their successors or assigns.
41. STATE SPECIFIC PROVISIONS
(a) The following provisions shall apply with respect to any Site(s) located in the State of
Arizona:
(i) The following language is added to the definition of “Land” in paragraph 1 of this
Lease, following the phrase “all other property rights”:
“water rights”
(ii) The word “for,” is hereby inserted in the Lease as follows:
(A) In paragraphs 6(a) and 6(b) of this Lease after the phrase “on an
After-Tax Basis” and before the phrase “from and against any such Taxes.”
(B) In paragraph 6(h) of this Lease, after the phrase “on an After-Tax
Basis” and before the phrase “from and against any claims for payment thereof.”
(C) In paragraph 7(a) of this Lease, after the phrase “on an After-Tax
Basis” and before the phrase “from and against, any and all costs, charges and
expenses attributable to the Premises or Underlying Premises.”
(D) In paragraph 18(b) of this Lease, after the phrase “successors and
assigns” and before the phrase “from and against any and all claims.”
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(E) In paragraph 22(b) of this Lease, after the phrase “on an After-Tax
Basis” and before the phrase “from and against loss or liability.”
(F) In paragraph 26(c) of this Lease, after the phrase “on an After-Tax
Basis” and before the phrase “from and against any and all liability.”
(iii) The following language is added to paragraph 16(a)(ii)(B) of this Lease,
following the phrase “from and after any such Event of Default”:
“and to the extent such statute or common law can be waived,”
(iv) With regard to any Site located in the State of Arizona, Tenant expressly waives the
benefit of any statute now or in the future in effect which would otherwise afford Tenant the right
to terminate this Lease due to casualty or damage to the Site including, without limitation,
Arizona Revised Statutes §33-343.
(b) The following provisions shall apply with respect to any Site(s) located in the State of
California:
(i) The following language is added at the end of paragraph 6(a) of this Lease:
“In addition, “Property Taxes” shall include any taxes as a result
in any change in ownership with respect to the Premises pursuant to
Proposition 13 as adopted by the voters of the State of California
in the June 1978 election, and the costs of any transit impact
development fees, housing and child care contributions or other
similar or dissimilar impositions required of Landlord with respect
to the Premises or otherwise imposed by the local governmental or
quasi-governmental instrumentalities. In no event shall Tenant be
responsible for any taxes relating to Landlord’s sale of the
Premises.”
(ii) Except to the extent specifically provided in this Lease, Tenant hereby waives, to the
maximum extent permitted by applicable laws, any rights that it may now or in the future have to
quit or surrender or vacate the Premises, to terminate this Lease, or to any abatement, diminution,
offset, reduction or suspension of Rent on account of Landlord’s failure to timely or in a
satisfactory manner deliver possession of the Premises to Tenant or on account of any other event
or circumstance, including any rights it might otherwise have under the provisions of sections
1932, 1933, 1941 and/or 1942 of the California Civil Code, it being the express intention of the
parties, and therefore it being agreed by the parties, that the terms of this paragraph shall
control under any circumstances in which said statutes might otherwise apply, and govern and
replace any rights covered by said statutes.
(iii) The following language is added at the end of the first grammatical paragraph of
paragraph 10 of this Lease:
“The provisions of Sections 1932(2) and 1933(4) of the California
Civil Code are hereby waived by ▇▇▇▇▇▇, it being the intention of
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the parties that the express terms of this Lease shall control under
any circumstances in which those provisions might otherwise be
applicable.”
(iv) The following language is added to the first sentence of paragraph 12 of this
Lease, following the defined term “ADA”:
“and California Civil Code Section 3110.5,”
The following language is added to paragraph 12 of this Lease, following the phrase
“with respect to the use or manner of use” and before the phrase “of the Premises, or such adjacent
or appurtenant facilities”:
“maintenance, operation, repair, alteration or construction”
(v) The following language is added at the end of paragraphs 13 and 14 of this Lease:
“The provisions of Sections 1265.110, 1265.120, 1265.130 and
1265.140 of the California Code of Civil Procedure are hereby waived
by ▇▇▇▇▇▇, it being the intention of the parties that the express
terms of this Lease shall control under any circumstances in which
those provisions might otherwise be applicable.”
(vi) The following language is added at the end of paragraph 16(a) of this Lease:
“(vi) With respect to any Site(s) located in the State of
California, terminate Tenant’s right to possession of the Premises
by any lawful means, in which case this Lease shall terminate and
Tenant immediately shall surrender possession of the Premises to
Landlord. In such event Landlord shall be entitled to recover from
Tenant all damages incurred by Landlord by reason of Tenant’s
default including (i) the cost of recovering possession of the
Premises; (ii) the worth at the time of the award of any unpaid Rent
which had been earned at the time of termination; (iii) the worth at
the time of the award of the amount by which the unpaid Rent which
would have been earned after the termination until the time of the
award exceeds the amount of such rental loss that Tenant proves
could reasonably have been avoided; (iv) reasonable expenses of
placing the Premises in good order, condition and repair; (v)
reasonable expenses of relating, including necessary renovation and
alteration of the Premises; (vi) reasonable and actual attorneys’
fees; (vii) the worth at the time of award of the amount by which
the unpaid Rent required to be paid by Tenant pursuant to this Lease
for the balance of the Term after the time of such award exceeds the
amount of such rental loss for the same period that Tenant proves
reasonably could be avoided; (viii) that portion of any leasing
commission paid by ▇▇▇▇▇▇▇▇ and
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applicable to the unexpired Term of this Lease; and (ix) 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, including damages for diminution in the
value of the Premises. As used in subparagraphs (ii) and
(iii), above, the “worth at the time of award” is computed by
allowing interest at the Overdue Rate. As used in subparagraph
(vii), above, the “worth at the time of award” is computed by
discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%).
Unpaid installments of Rent or other sums shall bear interest from
the date due at the Overdue Rate;
(vii) With respect to any Site(s) located in the State of
California, maintain Tenant’s right to possession, in which case
this Lease shall continue in full force and effect whether or not
Tenant shall have abandoned the Premises. In such event Landlord
shall be entitled to enforce all of Landlord’s rights and remedies
under this Lease, including the right to recover the Rent as may
become due hereunder, for which purposes Landlord may exercise the
remedy described in California Civil Code section 1951.4 (lessee may
continue lease in effect after ▇▇▇▇▇▇’s breach and abandonment and
recover rent as it becomes due, if lessee has the right to sublet or
assign, subject only to reasonable limitations);
(viii) With respect to any Site(s) located in the State of
California, seek specific performance by ▇▇▇▇▇▇, in the case of
breach by Tenant of one or more of its covenants herein, below;
(ix) With respect to any Site(s) located in the State of
California, exercise the remedy described in California Civil Code
section 1954 (and for such purposes, Tenant hereby waives any rights
or benefits that may be available to it under said California Civil
Code section 1954); and/or
(x) With respect to any Site(s) located in the State of
California, pursue any and every other remedy or right now or
hereafter available to Landlord under the laws or judicial decisions
of the State of California.”
(vii) The following is added to paragraph 23(c)(i) of this Lease, following the phrase
“rules and regulations” and before the phrase “shall not adversely affect the structural elements”:
“, including, to the extent applicable, California Civil Code
Section 3110.5, and shall otherwise comply with paragraph 12
hereof”
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(viii) The following is added to the definition of “Environmental Laws” in paragraph
26(b) of this Lease:
“to the extent applicable, (i) the ▇▇▇▇▇▇-Cologne Water Quality
Control Act (California Water Code Section 13000,
et seq.), (ii) the California Hazardous Waste
Control Law (Division 20, Chapter 6.5 of the California Health and
Safety Code), (iii) The ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Substance
Account Act (California Health and Safety Code Section 25300 et
seq.), (iv) Division 20, Chapter 6.95 (Hazardous Materials Release
Response Plans and Inventory) of the California Health and Safety
Code, (v) the Safe Drinking Water and Toxic Enforcement Act of 1986
(California Health and Safety Code Section 25249.5
et seq.), (vi) the Resource Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.), (vii)
the Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. Section 9601 et seq.), and (viii) the
Hazardous Materials Transportation Act (49 U.S.C. Section 1801
et seq.)”
(c) The following provisions shall apply with respect to the Site(s) located in the State of
Florida:
(i) The following language is added at the end of paragraph
6(c) of this Lease:
“Without limiting the foregoing, Tenant shall pay to Landlord any
sales, excise and other tax (excluding however, Landlord’s income
taxes) levied, imposed or assessed by the State of Florida or any
political subdivision thereof or other taxing authority upon any
rent payable hereunder, including Fixed Rent or Additional Rent.”
(ii) The following language is hereby added at the end of paragraph 16(a) of this
Lease:
| “(vi) | Landlord shall have all remedies available under Florida law including the following: | ||
| (a) | Landlord shall have the right to recover the Premises and repossess the Premises by any lawful means without terminating this Lease. | ||
| (b) | Landlord shall have the right at any time to give a written termination notice to Tenant and, on the date specified in such notice, Tenant’s right to possession shall terminate and this Lease shall terminate. Upon such termination, Landlord shall have the right to recover from Tenant all unpaid Rent and other charges due under this Lease which had been earned at the time of termination. |
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| (c) | In addition and without limiting the foregoing, Landlord shall have the right to accelerate and declare immediately due and payable all rents and other charges to be paid by Tenant hereunder. Acts of maintenance or preservation or efforts to relent the Premises or the appointment of a receiver upon initiative of Landlord to protect ▇▇▇▇▇▇▇▇’s interest under this Lease shall not constitute a termination of this Lease unless written notice of such termination is given by Landlord to Tenant.” |
(iii) The following language is substituted for the first sentence of paragraph 21(b)
of this Lease:
“Landlord’s interest in the Premises shall not be subject to liens
for improvements made by Tenant, and Tenant shall have no power or
authority to create any lien or permit any lien to attach to the
Premises or to the present estate, reversion or other estate of
Landlord in the Premises herein demised or on the Improvements or
the Property or other improvements thereon as a result of
improvements made by Tenant or for any other cause or reason. All
materialmen, contractors, artisans, mechanics and laborers and other
persons contracting with Tenant with respect to the Premises or any
part hereof, or any such party who may avail himself of any lien
against realty (whether same shall proceed in law or in equity), are
hereby charged with notice that such liens are expressly prohibited
and that they must look solely to Tenant to secure payment for any
work done or material furnished for improvements by Tenant or for
any other purpose during the Term of this Lease. Tenant shall
indemnify Landlord again any loss or expenses incurred as a result
of the assertion of any such lien.”
(iv) The following provision is added at the end of paragraph 28 of this Lease:
“(r) Wherever this Lease requires Tenant to pay any of landlord’s
legal or attorney fees, such fees shall include any and all
reasonable legal fees and expenses of Landlord, including any and
all such fees and expenses incurred in connection with litigation,
mediation, arbitration, other alternative dispute processes,
administrative proceedings and bankruptcy proceedings, and any and
all appeals from any of the foregoing.”
“(s) As required by Section 404.056, Florida Statutes, Landlord
notes the following disclosure:
RADON GAS: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities may
present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been
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found in buildings in Florida. Additional information regarding
radon and radon testing may be obtained from your county health
department.”
“(t) ENERGY: Tenant may have the energy efficiency rating of any
building determined. A copy of the State brochure is attached as
Exhibit X.”
(v) The following language is substituted for the first sentence of paragraph 21(b) of
the Lease:
“Landlord’s interest in the Premises shall not be subject to liens
for improvements made by Tenant, and Tenant shall have no power or
authority to create any lien or permit any lien to attach to the
Premises or to the present estate, reversion or other estate of
Landlord in the Premises herein demised or on the Improvements or
the Property or other improvements thereon as a result of
improvements made by Tenant or for any other cause or reason. All
materialmen, contractors, artisans, mechanics and laborers and other
persons contracting with Tenant with respect to the Premises or any
part hereof, or any such party who may avail himself of any lien
against realty (whether same shall proceed in law or in equity), are
hereby charged with notice that such liens are expressly prohibited
and that they must look solely to Tenant to secure payment for any
work done or material furnished for improvements by Tenant or for
any other purpose during the Term of this Lease. Tenant shall
indemnify Landlord again any loss or expenses incurred as a result
of the assertion of any such lien.”
(d) The following provisions shall apply with respect to the Site(s) located in the State of
Indiana:
(i) Where any provision of this Lease is inconsistent with any provision of Indiana statutory
or case law that may not be waived (“Applicable Law”), the provisions of Applicable Law shall take
precedence over the provisions of this Lease, but shall not invalidate or render unenforceable any
other provisions of this Lease that can be construed in a manner consistent with Applicable Law.
Should Applicable Law confer any rights or impose any duties inconsistent with or in addition to
any of the provisions of this Lease, the affected provisions of this Lease shall be considered
amended to conform to such Applicable Law, but all other provisions hereof shall remain in full
force and effect without modification.
(ii) To the extent that Applicable Law limits (i) the availability of the exercise of any of
the remedies set forth in this Lease, and the right of Landlord to exercise self-help in connection
with the enforcement of the terms of this Lease, or (ii) the enforcement of waivers and indemnities
made by Tenant, such remedies, waivers, or indemnities shall be exercisable or enforceable, any
provisions in this Lease to the contrary notwithstanding, if, and to the extent, permitted by
Applicable Law in force at the time of the exercise of such remedies or the
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enforcement of such waivers or indemnities without regard to the enforceability of such
remedies, waivers or indemnities at the time of the execution and delivery of this Lease.
(iii) The following language is added at the end of paragraph 16(a) of this Lease:
“(vi) With respect to any Site located in the State of Indiana, Tenant covenants and
agrees with Landlord that if Landlord, upon an Event of Default by ▇▇▇▇▇▇, elects to
file a suit to enforce this Lease and protect ▇▇▇▇▇▇▇▇’s rights thereunder, Landlord
may in such suit apply to any court having jurisdiction, for the appointment of a
receiver of the Premises and Tenant hereby consents to such appointment, and
thereupon it is expressly covenanted and agreed that the court shall, without notice
forthwith, appoint a receiver with the usual powers and duties of receivers in like
cases pursuant to Ind. Code 32-30-5, and such appointment shall be made by such
court as a matter of strict right to Landlord and without reference to the adequacy
or inadequacy of the value of the Premises that is subject this Lease, or to the
solvency or insolvency of Tenant, and without reference to the commission of waste.”
(iv) Tenant waives, to the fullest extent permitted by Applicable Law, any notice to quit as a
condition precedent to Landlord’s remedies under paragraph 16 of this Lease, for and on
behalf of itself and all persons claiming through or under ▇▇▇▇▇▇, and ▇▇▇▇▇▇, further waives any
and all right of redemption or re-entry or repossession in case Tenant shall be dispossessed by a
judgment or by warrant of any court or judge, or in case of re-entry or repossession by Landlord or
in case of any expiration or termination of this Lease.
(v) Environmental Laws, as defined in this Lease, includes, to the extent applicable, all of
the Environmental Management Laws, as defined in Ind. Code 13-11-2-71.
(vi) Tenant hereby waives, to the fullest extent permitted by Applicable Law, relief from
valuation and appraisement laws and Tenant covenants and agrees that any judgment obtained by
Landlord against Tenant may be executed in the State without relief from such valuation and
appraisement laws.
(vii) To the fullest extent permitted by Applicable Law, Tenant hereby waives and surrenders,
for itself and all those claiming under it, including creditors of all kinds, (i) any right and
privilege which it or any of them may have under any present or future Applicable Law to redeem any
of the Premises or to have a continuance of this Lease after termination of this Lease or of
Tenant’s right of occupancy or possession pursuant to any court order or any provision hereof, and
(ii) the benefits of any present or future Applicable Law which exempts property from liability for
debt or for distress for rents.
(viii) Landlord and ▇▇▇▇▇▇ agree to execute and record a memorandum of lease satisfying the
requirements of Ind. Code 36-2-11-20, in the office of the County Recorder in which the Premises is
located.
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(e) The following provisions shall apply with respect to the Site(s) located in the State of
Michigan:
(i) the words “single business tax” are hereby inserted between the phrases “gross receipts
tax” and “excise tax” in paragraph 6(b)(iii).
(ii) The following language is added to the definition of Environmental Laws in paragraph
26(b), immediately following the phrase “the Federal Insecticide, Fungicide and Rodenticide
Act, as amended, 7 U.S.C. §§ 136, et seq.”:
“the State of Michigan Natural Resources and Environmental Protection Act,
MCL 324.101 et seq., and any rules and regulations
promulgated thereunder,”
(iii) The following language is added to the definition of Hazardous Materials in
paragraph 26(b), immediately following the phrase “the Resource, Conservation and Recovery
Act of 1976, 42 U.S.C. §§6901, et seq.”:
“the State of Michigan Natural Resources and Environmental Protection Act,
MCL 324.101 et seq., and any rules and regulations
promulgated thereunder,”
(f) The following provisions shall apply with respect to the Site(s) located in the State of
Nevada:
(i) The following language is added to paragraph 15 of this Lease:
“All time periods set forth in this paragraph 15 shall run
concurrently with any and all applicable statutory time periods.”
(ii) The following language is added to paragraph 21 of this Lease:
“Tenant shall not commence any permitted work of improvement within
the Site that is reasonably expected to cost more than $50,000
without having first given Landlord prior written notice at least
three (3) days prior to the commencement of work to enable Landlord
to record a Notice of Nonresponsibility pursuant to Section 108.234
of the Nevada Revised Statutes (“NRS”). Such notification of the
commencement of work shall not be deemed given until actually
received by Landlord.”
(iii) The following is added to the definition of “Environmental Laws” in paragraph 26
of this Lease:
“The applicable provisions of NRS Chapters 444, 445A, 445B, 445C.
459, 477, 590 and 618; and the Uniform Fire Code (1988 Edition),
each as hereafter amended from time to time, and the present and
future rules, regulations and guidance documents promulgated under
any of the foregoing.”
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(g) The following provisions shall apply with respect to the Site(s) located in the State of
New Jersey:
(i) The following shall supplement and, to the extent of any inconsistency, specifically
amends paragraph 26 of this Lease:
“(a) For purposes of this Lease, Environmental Laws shall
include, but not be limited to, the New Jersey Industrial Site
Remediation Act (N.J.S.A. 13:1K-6 et seq.) (“ISRA”).
Tenant shall not generate, store, manufacture, refine, transport,
treat, dispose of, or otherwise permit to be present on or about the
Premises any “hazardous chemical,” “hazardous substance” or similar
material or substance as defined in any Environmental Laws or in any
rules or regulations promulgated thereunder, or in any other
applicable federal, state or local law, rule or regulation dealing
with environmental protection (other than in connection with the
operation, business and maintenance of the Premises and in
commercially reasonable quantities in compliance with Environmental
Laws). Tenant represents to Landlord that it does not and shall not
conduct any activity in the Premises located in New Jersey which
shall cause it to be considered an “industrial establishment” under
ISRA, or otherwise subject the Premises to the requirements of
compliance with ISRA and Tenant does not and shall not conduct any
operations that shall subject the Premises located in New Jersey to
ISRA.
(b) If at any time during the Term or any Extension Term, the
Premises shall be determined to be an industrial establishment under
ISRA, Tenant shall comply with the provisions of ISRA, or other
similar applicable laws, prior to its termination of any activities
in the Premises or the expiration of the Term of this Lease, or the
occurrence of a “triggering event” under ISRA, whichever is earlier.
(c) If in connection with a sale, transfer, or mortgage of the
Premises permitted in accordance with the terms of this Lease, by
Landlord or other transaction by Landlord where Landlord is required
to comply with ISRA, Tenant will cooperate with Landlord and provide
any information reasonably requested by Landlord for Landlord to
comply with ISRA or to obtain a Letter of Non-Applicability, at
Landlord’s sole cost and expense. Tenant shall execute such
documents as Landlord reasonably deems necessary and make such
applications as Landlord reasonably requires to assure compliance
with ISRA; and without limiting the generality of the foregoing will
provide Landlord within ten (10) business days of Landlord’s request
for the same, an affidavit in support of a request for a
non-applicability letter by Landlord in the form required under
ISRA. Notwithstanding the foregoing,
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that if, at the time that Landlord is required to comply with ISRA,
an Event of Default hereunder has occurred and is continuing after
applicable notice and cure periods, all reasonable costs and
expenses incurred by Landlord to comply with ISRA shall be the
obligation of and recoverable against and from Tenant.
(d) Tenant shall bear all reasonable costs and expenses
incurred by Landlord associated with any required ISRA compliance
resulting from Tenant’s occupancy or use of the Premises, including
state agency fees, engineering fees, cleanup costs, filing fees, and
surety ship expenses. The foregoing undertaking shall survive the
termination or sooner expiration of this Lease and surrender of the
Premises and shall also survive sale, or lease or assignment of the
Premises by Landlord. Tenant shall as soon as practicable provide
Landlord with copies of all written correspondence, reports,
notices, orders, findings, declarations and other materials
pertinent to Tenant’s compliance with the NJDEP requirements under
ISRA as they are issued or received by Tenant.”
(ii) If at any time prior to commencement of the Term or at anytime during the Term or any
Extension Term, the municipality in which a Site is located requires any permit, approval, license
or certificate for the occupancy, operation or use of the Premises and/or Tenant’s business at the
Premises, Tenant, at Tenant’s sole cost and expense, shall obtain such permit, approval, license or
certificate before any fine, penalty or right of the municipality to legally preclude the use and
occupancy of the applicable Premises attaches and is effective, even if the applicable law,
statute, ordinance, rule or regulation provides that the obligation to obtain such permit,
approval, license or certificate is that of the property owner or landlord, including Landlord. In
no event shall the failure of Tenant to obtain or the failure of the municipality to issue any
required permit, approval, license or certificate nor the imposition of any fine or penalty or the
legal closure of the Premise for use and occupancy by the municipality relieve Tenant from its
obligation to pay Rent or otherwise perform its obligations under this Lease. Tenant shall
indemnify, defend, save and hold harmless Landlord of, from and against any and all liability, cost
(including any and all attorneys’ fees, costs and expenses), damages, expenses, suits or other
legal actions or proceedings suffered, incurred by or imposed upon Landlord as a result of the
failure of Tenant to obtain such permits, approvals, licenses or certificates or the failure of the
municipality to issue any required permit, approval, license or certificate.
(iii) Paragraph 21(a) of this Lease is deleted and replaced with the following:
“(a) Except for liens created through the act of Landlord,
Tenant shall not suffer or permit any construction lien, notice of
construction lien, or other lien to be filed or recorded against the
Premises, equipment or material supplied or claimed to have been
supplied to the Premises at the request of Tenant, or anyone holding
the Premises, or any portion thereof, through or under Tenant. If
any such construction lien, notice of construction lien or other
lien shall at any time be filed or recorded against the
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Premises, or any portion thereof, Tenant shall cause the same to be
discharged of record or bonded over within thirty (30) calendar days
after the date of filing or recording of the same.”
(h) The following provisions shall apply with respect to any Site(s) located in the State of
Ohio:
(i) With respect to any agreement by ▇▇▇▇▇▇ in this Lease to pay Landlord’s attorneys’ fees
and disbursements incurred in connection with the enforcement therewith, ▇▇▇▇▇▇ agrees that this
Lease is a “contract of indebtedness” and that the attorneys’ fees and disbursements referenced are
those which are a reasonable amount, all as contemplated by Ohio Revised Code Section 1301.21, as
the same may hereafter be amended. ▇▇▇▇▇▇ further agrees that the indebtedness incurred in
connection with this Lease is not incurred for purposes that are primarily personal, family or
household and confirms that the total amount owed under this Lease exceeds One Hundred Thousand and
No/100 Dollars ($100,000.00).
(ii) Prior to commencement of any work or labor at the Premises or the furnishing of any
materials to the Premises, which could result in a lien against the Premises under Chapter 1311 of
the Ohio Revised Code, Tenant shall cause a timely notice of commencement to be filed in accordance
with the provisions of Section 1311.04 of the Ohio Revised Code and shall therein describe ▇▇▇▇▇▇’s
interest in the Premises as limited to Tenant’s leasehold estate under this Lease.
(iii) Tenant hereby expressly waives, and Landlord expressly disclaims, ▇▇▇▇▇▇▇▇’s duty to
mitigate Tenant’s damages by re-letting, or attempting to re-let, any Site in Ohio to any
replacement tenant(s) from and after any Event of Default.
(i) Notwithstanding anything contained in this Lease to the contrary, the following provisions
shall apply with respect to any Site(s) located in the State of Oregon:
(i) The following language is hereby added to the definition of Environmental Laws in
paragraph 25(b) of this Lease:
“Oregon State Hazardous Waste and Hazardous Materials I-II as
codified at ORS Chapters 465-466.”
(j) The following provisions shall apply with respect to any Site(s) located in the State of
Pennsylvania:
(i) The following language is hereby added at the end of paragraph 16(a) of this
Lease:
“(vi) At its option, upon notice to Tenant, to take possession
of the Premises and its contents, either directly or by means of a
receiver, without terminating this Lease, and to operate the
Premises directly or by means of a designee in such a manner as
Landlord may deem appropriate under the circumstances, including as
a membership campground, for cabin rentals, pursuant to Tenant’s
extended vacation, stay and storage programs, in
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connection with lease arrangements entered into with farmers prior
to the date hereof, and for any other lawful purpose which are both
associated with and related thereto;
(vii) To accelerate Rent through the balance of the Term,
provided that Landlord shall refund to Tenant, and Tenant shall not
be liable for, Rent collected by Landlord from any replacement
tenant or tenants at the Premises, after deducting the expenses
incurred in relenting, including real estate commissions, attorney’s
fees and the costs of relating; and
(viii) At its option, following the expiration of five (5)
Business Days after Landlord gives written notice thereof to Tenant,
to make such payments, do such work and take such actions as may be
necessary to cure such default, including entry upon the Premises,
and the prosecution or defense of any legal action which may have
been commenced or threatened against Landlord, Tenant, or the
Premises in violation of this Lease; and all sums so expended by
Landlord shall be paid by Tenant upon demand.”
(ii) The following shall supplement and, to the extent of any inconsistency, specifically
amend paragraph 26 of this Lease:
For purposes of this Lease, Hazardous Materials shall include, but
not be limited to, “hazardous substances” or “contaminants” as
defined pursuant to the Pennsylvania Hazardous Sites Cleanup Act,
Pa. Stat. ▇▇▇. Tit. 35 §§6020.101 to 1305 (▇▇▇▇▇▇ Supp. 1989), or
any other substances which may be the subject of liability pursuant
to Sections 316 or 401 of the Pennsylvania Clean Streams Law, Pa.
Stat. ▇▇▇. Tit. 35, §§691.1 to .1001 (▇▇▇▇▇▇ 1977 and Supp. 1989),
and asbestos, urea formaldehyde, polychlorinated biphenyls and
petroleum products.
(iii) The following provision is added as new paragraph 21(c) of this Lease:
Tenant acknowledges that any construction work at the Premises
is not being undertaken at the request of or for the benefit of
Landlord and any mechanic’s liens that may be filed against the
Premises shall not affect Landlord’s fee interest in the Premises.
(k) The following provisions shall apply with respect to any Site(s) located in the State of
Texas.
(i) Waiver of Certain Rights. Tenant hereby waives any and all liens (whether
statutory, contractual or constitutional) it may have or acquire as a result of a breach by
Landlord under this Lease. Tenant also waives and releases any statutory lien and offset rights it
may have against Landlord, including the rights conferred upon Tenant pursuant to Section 91.004 of
the Texas Property Code, or other applicable law.
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(ii) NOTICES. TO THE FULLEST EXTENT PERMITTED BY LAW, TENANT WAIVES ALL NOTICES AND
DEMANDS (INCLUDING NOTICE OF BREACH OR DEFAULT, NOTICE OF NON-PAYMENT OR NON-PERFORMANCE, DEMAND
FOR PAYMENT OR PERFORMANCE, DEMAND FOR POSSESSION, NOTICE OF ANY CHANGE IN LOCKS OR ACCESS CONTROL
DEVICES, REENTRY, OR REPOSSESSION, AND NOTICE TO VACATE), EXCEPT FOR THOSE NOTICES AND DEMANDS
EXPRESSLY REQUIRED IN THIS LEASE.
(iii) DTPA. AFTER CONSULTING WITH AN ATTORNEY OF TENANT’S OWN SELECTION, TENANT
VOLUNTARILY WAIVES ITS RIGHTS AGAINST LANDLORD PARTIES UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER
PROTECTION ACT, SECTION 17.41 ET SEQ., TEXAS BUSINESS & COMMERCE CODE, A LAW THAT
GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. TENANT REPRESENTS AND WARRANTS THAT ITS ATTORNEY
WAS NOT, DIRECTLY OR INDIRECTLY, IDENTIFIED, SUGGESTED, OR SELECTED BY ANY LANDLORD PARTY.
(l) The following provisions shall apply with respect to any Site(s) located in the State of
Virginia:
(i) The following provision is added at the end of paragraph 2(a) of this Lease:
“With respect to the sixty-two lots located at the Site commonly
known as Virginia Landing subject to the association known as the
Oceanside Conservation Co., Inc., Landlord grants to Tenant a
temporary license to exercise all of Landlord’s rights with respect
to the association known as the Oceanside Conservation Co., Inc.,
including, but not limited to, voting rights in such association.
All costs and expenses, if any, associated with Landlord’s grant of
said temporary license shall be paid by Tenant.”
(m) The following provisions shall apply with respect to any Site(s) located in the State of
Washington:
(i) The following language is added as new paragraph 11(g) of this Lease:
“Solely for the purpose of effectuating Tenant’s indemnification
obligations under this Lease, and not for the benefit of any third
parties (including employees of Tenant), Tenant specifically and
expressly waives any immunity that may be granted it under the
Washington State Industrial Insurance Act, Title 51 RCW.
Furthermore, the indemnification obligations under this Lease shall
not be limited in any way by any limitation on the amount or type of
damages, compensation or benefits payable to or for any third party
under Worker Compensation Acts, Disability Benefit Acts or other
employee benefit acts. The parties acknowledge that the
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foregoing provisions of this paragraph have been specifically and
mutually negotiated between the parties.”
(ii) The following language is added at the end of paragraph 16(a)(i) of this Lease:
“Should Landlord have reentered the Premises under the provisions of
this paragraph 16, Landlord shall not be deemed to have
terminated this Lease, or the liability of Tenant to pay the Rent
thereafter accruing, or to have terminated ▇▇▇▇▇▇’s liability for
damages under any of the provisions of this Lease, by any such
reentry or by any action, in unlawful detainer or otherwise, to
obtain possession of the Premises, unless Landlord shall have
notified Tenant in writing that Landlord had elected to terminate
this Lease. Tenant further covenants that the service by Landlord
of any notice pursuant to the unlawful detainer statutes of the
State of Washington and the surrender of possession pursuant to such
notice shall not (unless Landlord elects to the contrary at
the time of or at any time subsequent to the serving of such notices
and such election is evidenced by a written notice to Tenant) be
deemed to be a termination of this Lease.”
(iii) The following language is added after the end of paragraph 21(b) of this Lease:
“Tenant shall have no right or authority to cause or allow the Premises or
Landlord’s estate or interest therein or in and to this Lease to be
subjected to any such lien.”
(iv) The following language is added to the definition of “Environmental Laws” in
paragraph 26(b) of this Lease:
“... the State of Washington Model Toxics Control Act, codified at
Chapter 70.105D, RCW; ...”
(n) The following provisions shall apply with respect to the Site located in the Province of
British Columbia, Canada:
(i) the word “, provincial” is added after the word “state” in the third line of the
definition of “After-Tax Basis” in paragraph 1 of this Lease;
(ii) the phrase “or the province of British Columbia” is added after the phrase “State of
Illinois” in the second line of the definition of “Business Days” in paragraph 1 of this
Lease and the phrase “or province” is added after the word “state” in the third line of such
definition;
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(iii) the following paragraphs are added to the definition of “Permitted Encumbrances” in
paragraph 1 of this Lease:
“(g) statutory liens incurred in the ordinary course of business in
connection with workers compensation, employment insurance and
similar Legal Requirements;
(h) any discrepancies or encroachments that an up-to-date survey of
the Site might reveal; and
(i) the subsisting conditions, provisos, restrictions, exceptions
and reservations, including royalties, contained in the original
grant or contained in any other grant or disposition from the
crown.”;
(iv) the word “provincial,” is added after the word “state,” in the third line of
paragraph (a) of the definition of “Permitted Encumbrances” in paragraph 1 of this
Lease;
(v) the phrase “or charges” is added after the word “taxes” in the first line of paragraph
(d) of the definition of “Permitted Encumbrances” in paragraph 1 of this Lease and the
word “provincial,” is added after the word “state,” in the first line of such paragraph;
(vi) the word “and” at the end of paragraph (e) of the definition of “Permitted
Encumbrances” is deleted;
(vii) the “.” at the end of paragraph (f) of the definition of “Permitted
Encumbrances” is replaced with “;”;
(viii) the phrase “, goods and services tax” is added after the phrase “gross receipts tax” in
the twenty-second line of paragraph 6(b) of this Lease;
(ix) the phrase “or other applicable governmental authority” is added after the phrase
“Director of the Federal Emergency Management Agency” in the thirteenth line of sub-paragraph
11(c)(i) of this Lease;
(x) the phrase “or province” is added after the word “state” in the second line of
subparagraph 11(c)(v) of this Lease;
(xi) the word “provincial,” is added after the word “state,” in the fifth line of
paragraph 12(a) of this Lease;
(xii) the phrase “or provincial” is added after the word “state” in the sixth line of
subparagraph 16(a)(ii)(B) of this Lease;
(xiii) the following paragraph is added as new paragraph 21(c) of this Lease:
“Tenant acknowledges that Landlord has or will file a notice
pursuant to the Builders’ Lien Act (British Columbia) against title
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to the Site located in British Columbia in order to give effect to
the provisions of paragraph 21(b) of this Lease.”;
(xiv) the phrase “or province” is added after the word “county” in the fourth line of
paragraph 25(c) of this Lease;
(xv) the phrase “financing statement under the Personal Property Security Act (British
Columbia) (“PPSA”)” is added after the phrase “UCC financing statement” in the fifth line of
paragraph 25(c) of this Lease;
(xvi) the definitions of “Environmental Laws” and “Hazardous Materials” in paragraph
26(b) are deleted and replaced by the following:
“Environmental Laws” means all applicable federal, provincial and
local environmental laws, ordinances, rules, regulations, orders,
bylaws, standards, guidelines, permits, and other lawful
requirements, as any of the foregoing may have been or may be from
time to time amended, supplemented or supplanted and any other
federal, provincial or local laws, ordinances, rules, regulations,
orders, bylaws, standards, guidelines, permits and other lawful
requirements now or hereafter existing relating to regulation or
control of Hazardous Materials or materials. The term “Hazardous
Materials” as used in this Lease shall mean hazardous substances,
hazardous materials, hazardous wastes, toxic substances, radioactive
materials, asbestos, urea formaldehyde, pollutants, contaminants,
deleterious substances, dangerous substances or goods, hazardous,
corrosive, or toxic substances, special waste or wastes, PCBs,
methane, volatile hydrocarbons, petroleum or petroleum derived
substances or wastes, radon, industrial solvents or any other
material or substances the storage, manufacture, disposal,
treatment, generation, use, transport, remediation or release into
the environment of which is now or hereafter regulated, controlled
or prohibited under Environmental Laws.”;
(xvii) the phrase “or province” is added after the word “state” in the fourth line of
paragraph 27(d) of this Lease;
(xviii) the phrase “or province” is added after the word “state” in the second line of
paragraph 28(g) of this Lease;
(xix) the phrase “or PPSA” is added after the phrase “the UCC” in the tenth line of
paragraph 31(g) of this Lease; and
(xx) the phrase “or PPSA” is added after the phrase “the UCC” in the last line of
paragraph 31(k) of this Lease.
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42. ADDITIONAL REPRESENTATION AND WARRANTY
Tenant represents and warrants as follows: Schedule 1 sets forth, as of the date hereof: (i)
the authorized number of securities of each class of securities of PA and the parent of PA and (ii)
the number of securities of each class of securities of PA and the parent of PA issued to and
outstanding as of the date of this Agreement. All such securities are held of record by the
securityholders as set forth on Schedule 1 and no other Person is the record or beneficial owner of
any securities of PA or the parent of PA as of the date hereof. As of the date hereof, there are
no dividends declared or dividends or other payments accrued, but not paid, in respect of any of
the securities of PA or the parent of PA. There are no options (other than the Option Agreement
and the PA Option), warrants, calls, rights, commitments or agreements of any character, written or
oral, to which PA or the parent of PA is a party or by which PA or the parent of PA is bound
obligating PA or the parent of PA to issue, deliver, sell, repurchase or redeem, or cause to be
issued, delivered, sold, repurchased or redeemed, any securities of PA or the parent of PA or
obligating PA or the parent of PA to grant, extend, accelerate the vesting of, change the price of,
otherwise amend or enter into any such option, warrant, call, right, commitment or agreement.
There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or
other similar equity-related rights with respect to PA or the parent of PA. There are no voting
trusts, proxies or other agreements or understandings to which any PA or the parent of PA is a
party with respect to the voting stock of PA or the parent of PA.
43. RESTATEMENT
This Lease is a restated and amended version of the Original Lease, between the parties hereto
and all changes to such Lease are effective as of the Effective Date of Restatement. Any disputes
related to this Lease, arising, in whole or in part, after the Effective Date of Restatement shall
be governed by this Lease, as so restated and amended.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have hereunto set their hands under seal on the day and year
first above written.
| LANDLORD: | ||||||||
| WITNESS: | MHC TT LEASING COMPANY, INC., | |||||||
| a Delaware corporation | ||||||||
| By: | /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||||
Name:
|
Title: | Vice President | ||||||
Name: |
||||||||
| TENANT: | ||||||||
| THOUSAND TRAILS OPERATIONS HOLDING COMPANY, L.P., | ||||||||
| a Delaware limited partnership | ||||||||
| WITNESS: | ||||||||
| By: KTTI GP, LLC | ||||||||
| Its: General Partner | ||||||||
Name: |
||||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
Name:
|
Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Its: Authorized Signatory | ||||||||
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Solely with respect to paragraphs 38(f) and 38(g)
of this Lease, Guarantors hereby acknowledge, agree
with and consent to the terms and provisions
contained in paragraphs 38(f) and 38(g) of this
Lease
| KTTI GP, LLC, | ||||||||
| WITNESS: | a Delaware limited liability company | |||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
Name:
|
Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: | Authorized Signatory | |||||||
Name: |
||||||||
| PATT HOLDING COMPANY, LLC, | ||||||||
| WITNESS: | a Delaware limited liability company | |||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
Name:
|
Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: | Authorized Signatory | |||||||
Name: |
||||||||
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