HomeMy WebLinkAboutCDC/2008-09
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11 WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") is a
RESOLUTION NO, CDC/2008-9
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING THE ASSIGNMENT
OF THE 1985 SHANDIN HILLS GOLF CLUB LEASE ALONG WITH ITS
AMENDMENTS, FROM SHANDIN HILLS GOLF CLUB, A CALIFORNIA
CORPORATION, TO CNL INCOME EAGL LEASEHOLD GOLF, LLC, A
DELAWARE LIMITED LIABILITY COMPANY, AND AUTHORIZING
THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO
EXECUTE (1) THE CONSENT TO ASSIGNMENT OF LEASE AND
SUBLEASE, ASSUMPTION OF LEASE OBLIGATIONS AND RELEASE;
(2) THE ESTOPPEL CERTIFICATE; (3) THE MEMODRANDUM OF
UNDERSTANDING; AND (4) THE MEMORANDUM OF LEASE (STATE
COLLEGE REDEVELOPMENT PROJECT AREA)
12 public body, corporate and politic, existing under the laws of the State of California, Health and
13 Safety Code 33101; and
14 WHEREAS, on January 1, 1985, the Agency entered into a Lease Agreement ("Lease")
15 with Shandin Hills Golf Club, a California corporation ("Tenant") and on August 19, 1985, the
16 Agency and the Tenant entered into a First Amendment ("First Amendment") to the Lease to revise
17 the definition of "lease year" upon which rental payments are based; and
18 WHEREAS, on January 1, 1986, the Agency and the Tenant entered into a Second
19 Amendment ("Second Amendment") to the Lease to revise the payment schedule for the payment
20 of the $700,000 one-time fee, evidenced by a promissory note; and
21 WHEREAS, on February 10, 1986, the Agency and the Tenant entered into a Third
22 Amendment ("Third Amendment") to the Lease to reduce, on an interim basis, the amount of
23 liability insurance required; and
24 WHEREAS, on February 16, 1987, the Agency and the Tenant entered into a Fourth
25 Amendment (denoted as a Revised Fourth Amendment) ("Fourth Amendment") to the Lease to
26 revise the payment schedule for the payment of the amount owing of the one-time fee, evidenced
27 by a promissory note; and
28 WHEREAS, on May 12, 1988, the Agency and the Tenant entered into a Fifth Amendment
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P:\Agendas\Re50lulions\Resolutions\2008\03-03-0S Shandin Hills. Consent 10 Asliigmenl of Lease CDC Rcso.doc
1 ("Fifth Amendment") to the Lease to further revise the payment schedule for the payment of the
2 amount owing of the one-time fee, evidenced by a promissory note, and to provide that the Tenant
3 shall maintain a drainage easement; and
4 WHEREAS, on August 7, 1989, the Agency and the Tenant entered into a Sixth
5 Amendment ("Sixth Amendment") to confirm the legal description; and
6 WHEREAS, on May 5, 1990, the Agency and the Tenant entered into a Seventh
7 Amendment ("Seventh Amendment") refining the need for the Tenant to provide a security deposit;
8 and
9 WHEREAS, the Tenant desires to assign the Lease to CNL Income EAGL Leasehold Golf,
10 LLC ("CNL") and CNL desires to accept the assignment of the Lease and cornply with the terms
11 and conditions of the Lease and its Amendments; and
12 WHEREAS, the Lease requires the Agency to consent to the assignment of the Lease, in
13 writing, prior to the transfer of the Lease.
14 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
15 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS
16 FOLLOWS:
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Section 1.
The Recitals contained in this Resolution are true and correct in all respects.
Section 2,
The Community Development Commission of the City of San Bernardino
19 ("Commission") hereby approves the assignment of the Lease to CNL and authorizes the Interim
20 Executive Director of the Agency to execute (1) the Consent to Assignment of Lease and Sublease,
21 Assumption of Lease Obligations and Release; (2) the Estoppel Certificate; (3) the Memorandum 0
22 Understanding ("MOU"); and (4) the Memorandum of Lease on behalf of the Agency, and the
23 Interim Executive Director of the Agency is hereby authorized to make minor corrections, additions,
24 clarifications and interpretations to the Consent to Assignment of Lease and Sublease, Assumption
25 of Lease Obligations and Release, the Estoppel Certificate, the MOU and the Memorandum 0
26 Lease, provided, however, that said changes are not substantive in nature, do not increase the
27 monetary impact to the Agency and are consented to by Agency Counsel.
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Section 3.
This Resolution shall take effect upon its adoption and execution.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING THE ASSIGNMENT
OF THE 1985 SHANDlN HILLS GOLF CLUB LEASE, ALONG WITH ITS
AMENDMENTS, FROM SHANDIN HILLS GOLF CLUB, A CALIFORNIA
CORPORATION, TO CNL INCOME EAGL LEASEHOLD GOLF, LLC, A
DELAWARE LIMITED LIABILITY COMPANY, AND AUTHORIZING
THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO
EXECUTE (1) THE CONSENT TO ASSIGNMENT OF LEASE AND
SUBLEASE, ASSUMPTION OF LEASE OBLIGATIONS AND RELEASE;
(2) THE ESTOPPEL CERTIFICATE; (3) THE MEMODRANDUM OF
UNDERSTANING; AND (4) mE MEMORANDUM OF LEASE (STATE
COLLEGE REDEVELOPMENT PROJECT AREA)
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
10 Developrnent Commission of the City of San Bernardino at a joint regular
meeting
, 2008, by the following vote to wit:
Navs
Abstain
Absent
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Secretary
22 The foregoing resolution is hereby approved this 7"""- day of March , 2008.
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(. .
Esther Estrada, Vice Chair-
Person - Community Developmentl
Commission of the City of San
Bernardino
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26 Approved as to Form:
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By: C~' ~
28 Agenc 0 el
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P:\Agendas\Rcsolutions\Resolutions\2008\OJ-OJ-08 Shandin Hills - Consent to Assi,ment o(Lcuc CDC Rcso_doc
CDC/2008-9
CONSENT TO ASSIGNMENT OF LEASE AND SUBLEASE,
ASSUMPTION OF LEASE OBLIGATIONS AND RELEASE
(Shandin Hills Golf Course)
THIS CONSENT TO ASSIGNMENT OF LEASE AND SUBLEASE,
ASSUMPTION OF LEASE OBLIGATIONS AND RELEASE (this" Agreement") is entered
into as of this t,+ It day of March 2008, by and among THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic ("Lessor"), the
lessor under the Lease defined and described below, SHANDIN HILLS GOLF CLUB, a
California corporation ("Lessee" or "Shandin Hills"), the current lessee under the Lease, CNL
INCOME EAGL LEASEHOLD GOLF, LLC, a Delaware limited liability company (the
"Assignee" or "CNL"), as the assignee of Lessee, and EVERGREEN ALLIANCE GOLF
LIMITED, L.P., a Delaware limited partnership ("EAGL"), which will operate the premises
described by the Lease (as defined below) under a sublease agreement with the Assignee.
-'".".
RECITALS:
A. Lessor and Lessee are parties to that certain Lease Agreement, dated as of January
1, 1985, by and between Lessor, as lessor, and Lessee, as lessee, as amended, modified or
otherwise affected by the documents listed on Exhibit A attached hereto and incorporated herein
by this reference (collectively, the "Lease"), relating to the golf course property known as
"Shandin Hills Golf Course" and more particularly described in the Lease (the "Golf Course");
B. Lessor and Lessee desire to execute and deliver the Memorandum of
Understanding defined and described below;
C. Lessor and Lessee desire to execute, acknowledge and deliver the Memorandum
of Lease defined and described below;
D. Lessee, American Golf Corporation, a California corporation, NGP Realty Sub,
LP, a Delaware limited partnership, Golf Enterprises Inc" a Kansas corporation, as sellers, and
CNL Income Partners, LP, a Delaware limited partnership, as buyer, have entered into that
certain Purchase and Sale Agreement and Joint Escrow Instructions dated as of October 29, 2007
(the "Purchase Agreement"), which Purchase Agreement is joined by Evergreen Alliance Golf
Limited, LP, a Delaware limited partnership, and Premier Golf Properties, Inc., a Delaware
corporation, for the purposes therein stated, pursuant to which Lessee has agreed, among other
things, to convey and assign all of its right, title and interest in, to and under the Lease to the
Assignee, following which Assignee shall be obligated to perform all of the obligations of the
Lessee under the Lease;
E. Lessee has requested the Lessor's consent to the assignment of Lessee's right,
title and interest in, to and under the Lease pursuant to the terms, covenants and conditions of
the Assignment of Lease defined and described below;
F, Assignee has agreed to accept the assignment by Lessee to the Assignee of
Lessee's right, title and interest in, to and under the Lease, and has agreed to assume the
obligations and liabilities of Lessee under the Lease, pursuant to the Assignment of Lease.
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G. Assignee has asked for Lessor's consent to the sublease of Assignee's right, title
and interest in, to and under the Lease, including, without limitation, with respect to the Golf
Course, pursuant to the terms, covenants and conditions of the Sublease Agreement defined and
described below; and
H. Lessor has agreed to grant the foregoing consents on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the above recitals, the premises, and the
undertakings of the parties under the Lease, the Memorandum of Understanding, the
Memorandum of Lease, the Assignment of Lease and the Sublease Agreement (as defined
below), and their mutual agreements and undertakings set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the
parties hereby agree as follows:
1. Consent bv Lessor to the Assilmment and to the Sublease,
1.1 Lessor consents to the terms, covenants, and conditions of the
Memorandum of Understanding attached hereto as Exhibit B and incorporated herein by this
reference (the "Memorandum of Understanding"),
1.2 Lessor consents to the terms, covenants, and conditions of the
Memorandum of Lease attached hereto as Exhibit C and incorporated herein by this reference
(the "Memorandum of Lease"),
1.3, Lessor consents to the assignment of the Lease by Shandin Hills to
Assignee pursuant to the terms, covenants and conditions of the Assignment of Lease attached
hereto as Exhibit D and incorporated herein by this reference (the "Assignment of Lease").
1.4. Lessor consents to the sublease of the Golf Course by Assignee to EAGL
pursuant to the terms, covenants and conditions of the Sublease Agreement attached hereto as
Exhibit E and incorporated herein by this reference (the "Sublease Agreement"); provided the
parties hereby agree that nothing in the Sublease Agreement will be deemed to limit or expand
the Lessor's rights or obligations under the Lease. The Sublease Agreement is subject and
subordinate to the Lease, Upon a termination of the Lease (whether at the expiration of the term
or by early termination in accordance with the terms of the Lease), the Sublease Agreement shall
automatically terminate,
1.5. Subject to Section 4 of this Agreement, Lessor confirms that all conditions
under the Lease to (a) the effective assignment of the Lease by Shandin Hills to Assignee
pursuant to the Assignment of Lease and (b) the sublease by Assignee to EAGL pursuant to the
Sublease Agreement have been satisfied or waived.
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2, Assumption of Obligations Following Assignment of Lease and Sublease
2.1 Upon the effective date (the "Effective Date") as defined in the
Assignment of Lease, wherein Lessee assigns to Assignee all of Lessee's right, title and interest
in and to the Lease and Assignee assumes all obligations and liabilities of "Tenant" under the
Lease arising or accruing after the Effective Date of the Assignment of Lease, Assignee shall be
the "Tenant" under the Lease, and Shandin Hills shall be released from and shall have no further
liability to Lessor with respect to the obligations and liabilities of "Tenant" under the Lease
arising or accruing after the Effective Date of the Assignment of Lease. Percentage rental shall
continue to be calculated in the manner described in the Lease, based on the percentages stated
therein of green fees, motorized cart rental fees, hand cart rental fees, golf pro shop items, goods,
wares and merchandise sold or rented at the Golf Course and/or at the pro shop, driving range
fees, and revenues from the sale, or charges made for the use of, banquet facilities, food and
beverage sales and all other revenues from any other items or services common to golf courses
not mentioned above and not expressly excluded from "gross receipts" (as defined in the Lease),
whether collected by Lessee, Assignee, EAGL or any other subtenant or operator approved by
Lessor. Lessor's rights to audit Golf Course operations under the Lease shall be enforceable
against Lessee, Assignee, EAGL, and each such other subtenant or operator approved by Lessor,
or any of them in Lessor's sole discretion.
2.2 Without in any way limiting the rights of the Assignee under the Lease, or
the rights of its successors and assigns, as to any matters concerning the Lease or the Golf
Course, Shandin Hills, for itself and its officers, directors, employees, agents, affiliates,
successors and assigns (collectively, the "Releasors," it being understood and agreed by the
Lessor that the term "successors and assigns" of Shandin Hills shall not include Assignee or its
successors and assigns as the "Tenant" under the Lease), does hereby fully, completely, finally
and forever release and discharge Lessor, the officers, agents, employees, successors and assigns
of Lessor, (collectively, the "Releasees"), from any and all claims, actions, causes of action,
demands, rights, debts, promises, liabilities, damages, accountings, costs and expenses and fees,
whether known or unknown, suspected or unsuspected, contingent or non-contingent of every
nature whatsoever, which Lessee has or may have against the Releasees, or anyone of them,
with respect to any and all matters arising out of, in connection with, or relating to: (i) the Lease,
(ii) the Golf Course, or any portion thereof, (iii) the use of the Golf Course (or any portion
thereof), (iv) the acts, omissions or wrongful conduct of the Releasors, or anyone of them, (v)
Hazardous Substances (as defined in the Sublease Agreement), (vi) the manufacture, production,
storage, presence, discharge, disposal of Hazardous Substances on, at, in, above, under, from or
about the Golf Course, or any portion thereof, or the removal of Hazardous Substances from the
Golf Course, or any portion thereof, or (vii) the violation of any federal, state, municipal or local
law, statute, ordinance, regulation, rule, code, license, permit, order or judgment, now or
hereafter in existence or thereafter amended, all of which released matters shall collectively be
referred to as the "Released Claims" and singularly as the "Released Claim."
IT IS THE INTENTION OF SHANDIN, HILLS, ON BEHALF OF ITSELF AND THE
RELEASORS AND NOT ON BEHALF. OF THE ASSIGNEE OR ITS SUCCESSORS OR
ASSIGNS THAT THIS AGREEMENT SHALL BE EFFECTIVE AS A FULL AND FINAL
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RELEASE BY RELEASORS OF EVERY RELEASED CLAIM. IN FURTHERANCE OF
THIS INTENTION, SHANDIN HILLS, ON BEHALF OF ITSELF AND THE OTHER
RELEASORS, BUT NOT ON BEHALF OF THE ASSIGNEE OR ITS SUCCESSORS OR
ASSIGNS, ACKNOWLEDGES THAT THE RELEASORS HAVE BEEN ADVISED
BY LEGAL COUNSEL AND ARE FAMILIAR WITH THE PROVISIONS OF CALIFORNIA
CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MA TERIALL Y
AFFECTED HIS SETTLEMENT WITH THE DEBTOR"
SHANDlN HILLS, ON BEHALF OF ITSELF AND THE OTHER RELEASORS, BUT NOT
ON BEHALF OF THE ASSIGNEE OR ITS SUCCESSORS OR ASSIGNS, BEING AWARE
OF THIS CODE SECTION, HEREBY EXPRESSLY WAIVES ANY RIGHTS THE
RELEASORS MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER
STATUTES OR COMMON LAW DOCTRINES OF SIMILAR EFFECT.
(lJ
Shandin Hills Initials
Shandin Hills, on behalf of itself and the other Releasors, but not on behalf of the Assignee or its
successors or assigns, acknowledges that hereafter Releasors may discover facts in addition to, or
different from, those that Releasors now know or believe to be true with respect to the subject
matter of this Agreement and the Released Claims, but that, notwithstanding the foregoing, it is
the intention of the Releasors, acting by and through Shandin Hills, hereby to fully and forever
settle and release each of the Released Claims, and that in furtherance of this intention, the
releases herein given shall be and remain in effect as full and complete releases.
Shandin Hills, on behalf of itself and the other Releasors, but not on behalf of the Assignee or its
successors or assigns, hereby represents and warrants to Lessor that, as to any Released
Claims, Shandin Hills has the right, ability and sole power to release said Released Claims on
behalf of the Releasors.
Notwithstanding anything in this Section 2.2 to the contrary, the release and discharge of the
Relessees, or anyone of them, from any or all Released Claims is not, and shall under no
circumstances be deemed to be, a release by Assignee of any or all Released Claims it being
acknowledged, understood and agreed to by Lessor, that the release and discharge by Releasors
of the Released Claims is personal to the Releasors and upon the effectiveness of the assignment
of the Lease by Shandin Hills to Assignee, Assignee shall have any and all rights of the "Tenant"
under the Lease with respect to any such Released Claims, whether arising, accruing or relating
to the period prior to, on or after the Effective Date of the Assignment of Lease.
2.3. On and after the Effective Date of the Assignment of Lease, Assignee
shall assume all obligations as the 'Tenant" under the Lease including the obligation to make
payments, as and when due, of Minimum Annual Rental and "percentage rental" (as defined in
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the Lease). Upon execution and delivery of the Sublease Agreement by Assignee to EAGL,
EAGL shall be responsible for the fulfillment of all obligations of the "Tenant" under the Lease;
provided that Assignee shall not thereby be released from its obligations and duties to Lessor
under the Lease including, without limitation, the obligation to timely pay to Lessor the
Groundlease Rent (as defined in the Sublease Agreement),
3. Re.presentations and Warranties of the Parties.
3.1 Representations and Warranties of Shand in Hills.
(a) Shandin Hills represents and warrants that (i) it is a corporation organized,
validly existing and in good standing under the laws of the State of California, (ii) it has the
corporate power and authority under its articles of incorporation and bylaws to enter into and
perform the transactions contemplated hereby (and by the various agreements referred to herein),
(iii) the execution, delivery and performance of this Agreement, the Purchase Agreement, the
Memorandum of Understanding, the Memorandum of Lease, the Assignment of Lease and of
each of the other agreements referred to herein or therein have been duly authorized by the
appropriate officers and governing bodies of Lessee, which authorizations remain in full force
and effect, and (iv) this Agreement, the Purchase Agreement, the Memorandum of
Understanding, the Memorandum of Lease, and the Assignment of Lease are, and each such
other agreement will be at the time of their execution, duly executed and delivered by Lessee and
represent the legal, valid and binding obligations of Lessee, enforceable against Lessee in
accordance with its terms.
(b) Lessee represents and warrants to the other parties hereto that "gross
receipts" under the Lease for the period July 1, 2007 through January 31, 2008 are $1,347,297.03,
of which $561,736,08 are subject to percentage rental at the rate of 5% and $785,560.95 are
subject to percentage rental at the rate of 20%,
3,2 Representations and Warranties of CNL. CNL represents and warrants
that (i) it is a limited liability company organized, validly existing and in good standing under the
laws of the State of Delaware, (ii) it is qualified to do business and in good standing in the State
of California, (iii) it has the power and authority under its certificate oflimited liability company
and operating agreement to enter into and perform the transactions contemplated hereby (and by
the various agreements referred to herein), (iv) the execution, delivery and performance of this
Agreement, the Purchase Agreement, the Memorandum of Understanding, the Assignment of
Lease, the Sublease Agreement and the other agreements referred to herein or therein have been
duly authorized by the appropriate officers and governing bodies of Assignee, which
authorizations remain in full force and effect, (v) this Agreement, the Purchase Agreement, the
Memorandum of Understanding, the Assignment of Lease and the Sublease are, and each such
other agreement will be at the time of their execution, duly executed and delivered by Assignee
and will at the time of their execution and delivery represent the legal, valid and binding
obligations of Assignee, enforceable against Assignee in accordance with their respective terms,
and (vi) CNL shall pay, or cause EAGL to pay, to Lessor the Groundlessor Rent (as that term is
defined in the Sublease Agreement) in accordance with and pursuant to the terms of the Lease.
Without limiting, enhancing or modifying any other provision in this Agreement, the Lease, the
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Assignment and/or the Sublease Agreement, in any manner whatsoever, CNL shall pay, or shall
cause EAGL to pay to Lessor at the time and in the manner required under the Lease, in addition
to any other sums that may be or become due thereunder, the difference between the percentage
rental due and payable under the Lease for the fiscal year beginning July 1, 2007 and ending
June 30, 2008, less the Minimum Annual Rent due and payable under the Lease in the amount of
two hundred thousand dollars ($200,000) for such fiscal year, together with any other
Groundlessor Rent due and payable under the Lease, for the term of the Lease.
3.3 Representations and Warranties of EAGL. EAGL represents and warrants
that (i) it is a limited partnership organized, validly existing and in good standing under the laws
of the State of Delaware, (ii) it is qualified to do business and in good standing in the State of
California, (iii) it has the power and authority under its certificate of limited partnership and its
limited partnership agreement to enter into and perform the transactions contemplated hereby
(and by the various agreements referred to herein), (iv) the execution, delivery and performance
of this Agreement, the Purchase Agreement, the Memorandum of Understanding, the Sublease
Agreement and the other agreements referred to herein or therein have been duly authorized by
the appropriate officers and governing bodies of EAGL, which authorizations remain in full
force and effect, (v) this Agreement, the Purchase Agreement, the Memorandum of
Understanding and the Sublease are, and each such other agreement will be at the time of their
execution, duly executed and delivered by EAGL and will at the time of their execution and
delivery represent the legal, valid and binding obligations of EAGL, enforceable against EAGL
in accordance with their respective terms, and (vi) EAGL shall pay to CNL or pay to Lessor the
Groundlessor Rent in accordance with and pursuant to the terms of the Lease. Without limiting,
enhancing or modifying any other provision in this Agreement, the Lease, the Assignment and/or
the Sublease Agreement, in any manner whatsoever, EAGL shall pay to CNL or to Lessor, at the
time and in the manner required under the Lease, in addition to any other sums that may be or
become due thereunder, the difference between the percentage rental due and payable under the
Lease for the fiscal year beginning July 1, 2007 and ending June 30, 2008, less the Minimum
Annual Rent due and payable under the Lease in the amount of two hundred thousand dollars
($200,000) for such fiscal year, together with any other Groundlessor Rent due and payable
under the Lease, for the term of the Lease,
3.4 Representations and Warranties of Lessor. Lessor represents and warrants
that (i) it is a public body, corporate and politic, organized and validly existing under the laws of
the State of California, (ii) it has the power and authority to enter into and perform the
transactions contemplated hereby, (iii) the execution, delivery and performance of this
Agreement has been duly authorized by the appropriate governing bodies of Lessor, which
authorizations remain in full force and effect, and (iv) this Agreement has been duly executed
and delivered by Lessor and represents the legal, valid and binding obligations of Lessor,
enforceable against Lessor in accordance with its terms.
3.5 Representations and Warranties Survive. The representations and
warranties of the parties survive the execution and delivery hereof and of the agreements
contemplated hereby and further survive the performance, expiration and early termination of the
Lease or the Sublease, as applicable,
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4. Conditions Precedent. The following conditions precedent must be fully
performed, as follows: (i) the Memorandum of Understanding must be duly executed and
delivered by the parties thereto; (ii) the Assignment of Lease must be duly executed and
delivered by the parties thereto, (iii) the Sublease Agreement must be duly executed and
delivered by the parties thereto, (iv) this Agreement must be duly executed and delivered by the
parties thereto, (v) the Estoppel Certificate to be executed and delivered by Shandin Hills to
Lessor must be duly executed by and delivered by Shandin Hills. If one (1) or more of the above
conditions precedent is not fully satisfied and performed by April 17, 2008, this Agreement, the
Assignment of Lease, the Sublease and any other agreement, document, instrument or certificate
executed or to be executed in connection therewith shall be null and void and of no further force
and effect, unless otherwise agreed to in writing by the parties to this Agreement.
5. Miscellaneous Provisions
5.1 Lessor confirms that the attached Exhibit A sets forth a complete list of
documents that make up the Lease. The Lease represents the entire agreement between Lessee
and Lessor with respect to the Golf Course. The Lease is in full force and effect and has not been
assigned, modified, supplemented or amended in any way except as described on Exhibit A,
5.2 Upon the execution of this Agreement, Lessor agrees to provide Assignee
and EAGL with copies of all notices which may be provided to Shandin Hills pursuant to the
terms and provisions of the Lease prior to the Effective Date of the Assignment of Lease by
Shandin Hills to Assignee. All notices, requests and other communications to Lessor, Assignee
and EAGL under this Agreement shall be in writing and shall be given to Lessor, Assignee and
EAGL at its address set forth below or such other address as such party may hereafter specify for
the purpose of notice in accordance with the terms of the Lease.
Assignee:
CNL Income EAGL Leasehold Golf, LLC
clo CNL Income Properties, Inc,
450 S. Orange Avenue
Orlando, Florida 32801
Attention: Tammie A. Quinlan, Chief Financial Officer
Attention: Amy Sinelli, Esq., Senior Vice President
and Corporate Counsel
Fax: (407) 540-2544
With a copy to:
Lowndes, Drosdick, Doster, Kantor and Reed, P.A.
215 North Eola Drive
P.O. Box 2809
Orlando, Florida 32801
Attention: William T, Dymond, Jr., Esq.
Fax: (407) 843-4444
EAGL:
Evergreen Alliance Golf Limited, L.P,
4851 LBJ Freeway, Suite 600
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Dallas, Texas 75244
Attention: Lynn Marie Mallery
Fax: (214) 722-6052
With a copy to:
The Addison Law Firm
14901 Quorum Drive, Suite 650
Dallas, Texas 75254
Attn: Randy Addison, Esq.
Fax: (972) 960-7719
Lessor:
Redevelopment Agency
of the City of San Bernardino
clo Executive Director
201 North "E" Street, Suite 301
San Bernardino, California 92401
(909) 663-1 044 (Phone)
With a Copy:
Lewis Brisbois Bisgaard & Smith LLP
650 East Hospitality Lane, Suite 600
San Bernardino, California 92408
Attn: Timothy J, Sabo
The addresses set forth above may be changed as to any party by such party delivering to
the other parties at least thirty (30) calendar days' written notice as to such change of address.
[Signature pages follows on the next page]
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IN WITNESS WHEREOF, the undersigned have entered into this Agreement as of the
date first set forth hereinabove, to be effective upon the assignment of the Lease by Lessee to
Assignee.
LESSOR:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO,
a public body, corporate and politic
Dated: 1- 2.- - () Z
~
Name: Emil A. Marzullo
Title: Int~ Ex~v~irector
Date: - 0 - Uy-
By:
ATTEST:
/fL~
By:
Agency Secretary
APPROVED AS TO FORM AND
CONTENT:
BY.'~~~
Agency . el
LESSEE:
SHANDIN HILLS GOLF CLUB,
a California corporation
By:
Name: Mark J. Friedman
Title: Secretary
[Signatures continue on the next page]
\\\OC~0289871OOOOO2.2670S69 vii
9
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
..
County of
On ~lo, blXfrl before me
personally ap;~:;ed (3 rM II I.] ,
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,\
I
J- - - - :in~c~- f
i@-NolaIyPUblc- COIIIoIria ~
san..... <II County -
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who proved to me on the basis of satisfactory evidence to
be the personls) whose nam~shtfe. subscribed to the
within instrument and acknowledged to me that
he/~I .~\1 .~ executed the same in hislll--'~oir authorized
capacity(iesT, and that by his/Rsr,4Rsir signatu~on the
instrument the personter, or the entity upon behalf of
which the person(sracted, uted the instrument.
F PERJURY under the laws
h the foregoing paragraph is
I certify under PEN
of the State of car
true and correct.
WITNESS my ha
Place Notary Seal Above
Signature
Signature of Notary Public
OPTIONAL
Though the information below is not required by law; it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capaclty(ies) Claimed by Slgner(s)
Signer's Name:
o Individual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
o Other:
Top of thumb here
Signer's Name:
o Individual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
o Other:
Top of thumb here
Signer Is Representing:
Signer Is Representing:
'""" _:t:; .
C2007 National Notary Assodation. 9350 De Soto Ave., P.O. Box 2402 . Chatsworth, CA 91313-2402. www.NationaJNotary.org Item .5907 Reorder. Call Toll-Free 1-800-876-6821
CDC/2008-9
IN WITNESS WHEREOF, the undersigned have entered into this Agreement as of the
date first set forth hereinabove, to be effective upon the assignment of the Lease by Lessee to
Assignee,
LESSOR:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO,
a public body, corporate and politic
Dated:
By:
Name: Emil A. Marzullo
Title: Interim Executive Director
Date:
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM AND
CONTENT:
By:
Agency Counsel
LESSEE:
SHANDIN HILLS GOLF CLUB,
::";f~~
Name: Coostine Chong
Title: Assistant Secretary
[Signatures continue on the next page]
" DC - 028987'000002 _ 2670569 vi]
9
-"
\\\OC _ 028987lO000O2 - 2670569 vI2
CDC/2008-9
ASSIGNEE:
CNL INCOME EAGL LEASEHOLD
GOLF, LLC,
a Delaware .
EAGL:
EVERGREEN ALLIANCE GOLF
LIMITED, LP,
a Delaware limited partnership
By: PREMIER GOLF EAGL, GP,
LLC,
a Delaware limited liability company, its
General Partner
By:
Name:
Title:
[End ofsignatures)
NOT ARIES FOLLOW ON THE NEXT PAGE
10
\\\OC-02891171OOOOO2-2670569vll
CDC/2008-9
ASSIGNEE:
CNL INCOME EAGL LEASEHOLD
GOLF, LLC,
a Delaware limited liability company
By:
Name:
Title:
EAGL:
EVERGREEN ALLIANCE GOLF
LIMITED, LP,
a Delaware limited partnership
By: PREMIER GOLF EAGL, GP,
LLC,
a Delaware limited liability company, its
General Partner ~
B~ 1&
Name: L'f hI) <\.1-;... fY](;J[~""f
Title: Vic.....I'.-e-sicl.....lL--t 'Y-" .5~re-tQt-f
[End of signatures)
NOTARIES FOLLOW ON THE NEXT PAGE
10
STATE OF CALIFORNIA
COUNTY OF Los Angeles
)
) SS.
)
On March 5, 2008, before me, Elyse Cook, a Notary Public in and for said County and
State, personally appeared Christine Chong, who proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument, and acknowledged
to me that she executed the same in her authorized capacity, and that by her signature on the
instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
I certify under penalty ofpeIjury under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
SEAL
N~~
@ ELYSE COOK
- . . Comm""on # 1479395
i. .~ Notary Publ/c . Cal/romla f
' loa Angeles Counly -
My Comm. Expires Apt 26. 2008
DC - 028987.000002 _ 2670569 vI]
11
-
STATE OF FLORIDA 9
9
COUNTY OF ORANGE 9
The foregoing instrument was acknowledged before me this ~ day of March,
2008, by Amy Sinelli, as Senior Vice President of CNL INCOME EAGL LEASEHOLD
GOLF, LLC, a Delaware limited liability company, on behalf of the limited liability company.
She is ~ersonally known to me or has produced as
identificatIOn.
.i'~~'~~t:. Cathleen A. Coffey
€:i A'\~ Commission # D0466308
-w '0: Ex . b 2009
~}.......~" pires Septem er 24,
"'if.~ SOllded TIO)' Falll-lnlldllC*.lnc 8QO.385-1019
r II ~~" ;A-C~
Notary Public Signature
(NOTARY SEAL)
(Name typed, printed or st~ed)
Notary Public, State of
Commission No.:
My Commission Expires:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this _ day of March,
2008 by , as of PREMIER GOLF EAGL, GP, LLC,
a Delaware limited liability company, on behalf of the . He/she is personally known
to me or has produced as identification.
(NOTARY SEAL)
Notary Public
Printed Name:
Notary Public, State of
Commission #:
My Commission Expires:
\\\DC. 0289871000002 - 2670569 vl2
12
STATE OF FLORIDA 9
9
COUNTY OF ORANGE 9
The foregoing instrument was acknowledged before me this _ day of March,
2008, by , as of CNL INCOME EAGL LEASEHOLD GOLF,
LLC, a Delaware limited liability company, on behalf of the limited liability company. She is
personally known to me or has produced as identification.
(NOTARY SEAL)
Notary Public Signature
(Name typed, printed or stamped)
Notary Public, State of
Commission No.:
My Commission Expires:
STATEOF \e.k~S
COUNTY OF ':Do, 1 \ o...s
The fore oing instrument was acknowledged before me this 4"'iday of March,
2008 byL 11 r;e. oj/ as V p~ Sec.... of PREMIER GOLF EAGL, GP, LLC,
a Delaware limi ed liab 'ty mpany, on behalf of the , He/she is personally known
to me or has produced as identification.
Ol l aoROW'f
~r!!f,., NO'::P~==-
: . Mycom 20\0
febIIIOlV U.
O~cf.~
Notary Public
Printed Name: (1/9 R. OL L. (fo r() wi
Notary Public, State of T F: )( A S
Commission #:
My Commission Expires: (') d- / (), 1 /.) 0/0
I I
(NOTARY SEAL)
\\\DC.0289871OOOOO2-2670S69vll
12
CDC/2008-9
I STATE OF CALIFORNIA
COUNTY OF
~SS.
On , before me, , a Notary
Public in and for said County and State, personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument, and acknowledged to me that he/she/they executed the same
in hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certifY under penalty of peIjury under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
SEAL
Notary Public
\\\DC - 028981/000002 - 2670569 vII
I3
CDC/2008-9
EXHIBIT A
LEASE
I. Lease Agreement effective January I, 1985 by and between the Redevelopment Agency of
the City of San Bernardino and Shandin Hills Golf Club,
2, First Amendment to Lease Agreement dated August 19, 1985 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
3, Second Amendment to Lease Agreement effective January I, 1986 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club,
4. Third Amendment to Lease Agreement effective February 10, 1986 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
5, Revised Fourth Amendment to Lease Agreement, dated February 16, 1987, by and between
the Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
6. Fifth Amendment to Lease Agreement effective May 12, 1988 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club,
7. Sixth Amendment to Lease Agreement effective June 1989 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
8. Seventh Amendment to Lease Agreement, dated March 5, 1990, by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
\\\DC-0289871OOOOO2-2670569vll
14
\\\DC. 028987lO000O2 - 2670569 vii
CDC/2008-9
EXHIBIT B
MEMORANDUM OF UNDERSTANDING
(See attached)
15
CDC/2008-9
EXHIBIT C
MEMORANDUM OF LEASE
(See attached)
\\\DC-0289871OOQOO2-2670569 viI
16
CDC/2008-9
EXHIBIT D
ASSIGNMENT OF LEASE
(See attached)
\\\OC. 028987/000002.2670569 viI
17
\\\OC. 028981/000002 - 2610569 vII
CDC/2008-9
EXHIBIT E
FORM OF SUBLEASE AGREEMENT
(See attached)
18
CDC/2008-9
ESTOPPEL CERTIFICATE
Shandin Hills Golf Course, San Bernardino, California
March L 2008
CNL INCOME PARTNERS, LP
CNL INCOME EAGL LEASEHOLD GOLF, LLC
c/o CNL Income Properties, Inc.
450 South Orange Avenue
Orlando, Florida 32801
Evergreen Alliance Golf Limited, L.P,
4851 LBJ Freeway, Suite 600
Dallas, Texas 75244
Re: The documents described in the attached Exhibit A (collectively, the
"Lease").
Gentlemen:
The undersigned, the Redevelopment Agency for the City of San Bernardino, a public
body, corporate and politic (the "Landlord"), intending to be legally bound, hereby certifies to
you and agrees as follows:
I. Landlord is the owner of the fee simple estate of the golf course property known
as the Shandin Hills Golf Course, and more fully described in the Lease (the
"Premises"),
2, The Lease represents the entire agreement between Shandin Hills Golf Club, a
California corporation (the "Tenant") and Landlord with respect to the Premises
and there do not exist any other agreements between the Tenant and Landlord
concerning the Premises, whether oral or written. The Lease is in full force and
effect and has not been assigned, modified, supplemented or amended in any way
except as described on Exhibit A attached to this certificate and incorporated
herein by this reference.
3. Tenant is not in default in the payment of any rent, additional rent or other
charges under the Lease.
4. Minimum rent is payable under the Lease at a monthly rate of $16,667.67.
Tenant pays percentage rent in arrears at the conclusion of the calendar year in
excess of minimum rent. All amounts due and payable by the Tenant under the
Lease have been paid in full through February 28, 2008 (except for any
\\\DC -02891171OOOOO2_26n6&2 vS
- 1 -
Sbandin HiUs Estoppel
CDC/2008-9
adjustments in payments of percentage rent or additional rent as may be called for
by any annual accounting and adjustment procedure called for under the Lease),
"
r'
5. To Landlord's knowledge, Tenant is not in default in the performance of any
other obligation of Tenant under the Lease. Except for the agreements and other
documents referred to herein (the "Lease Related Documents''), there are no other
agreements or undertakings by the Tenant to the Landlord relating to the Lease or
the Premises and there are no documents under which any of Tenant's obligations
under the Lease and/or Lease Related Documents have been altered or waived by
Landlord. Tenant is not in default of, and Tenant has performed to Landlord's
satisfaction any and all conditions or obligations to be performed on or prior to
the date hereof, under the Lease and/or Lease Related Documents. Neither
Landlord nor, to the Landlord's knowledge, Tenant has acted or failed to act in a
manner which, with notice or the passage of time, or both, could result in a default
under the Lease.
6, The term of the Lease is for fifty-two (52) years commencing on January 1,1985.
7, Each "Lease Year" under the Lease commences on July I at 6:00 AM in each
year and ends on July I at 5:59 AM of the following year,
8. Tenant has not granted Landlord any lien or security interest in any assets of
Tenant, including without limitation, Tenant's accounts receivable or Tenant's
furniture, fixture equipment or other personal property located on the Premises,
whether now owned or hereafter acquired,
9. Landlord is not holding a security deposit under the Lease and no security
payments are owing to Landlord. Further, the Tenant has not paid any rents due
under the Lease more than thirty (30) days in advance of the date due under the
Lease.
10, The Landlord has not assigned, transferred or pledged all or any part of its interest
under the Lease to any other person or entity. Landlord has the capacity, power
and authority to issue this letter without the consent of any person or entity that
has not been obtained or that does not remain in effect, This letter is binding
against Landlord and may be relied on by the addressees hereof and their lenders.
II. All construction, improvements, alterations, or additions, if any, to the Premises
required under the Lease have been fully completed in accordance with the terms
of the Lease.
12. Pursuant to the terms of the Fifth Amendment to the Lease, the Promissory Note
executed by Tenant in favor of Landlord in the amount of $195,175,66 has been
paid in full, and the Security Agreement, if any, securing Tenant's obligations
under the Note has been terminated,
13. Landlord's address for notice is:
"\DC. 028987lO000O2 - 2677682 vS
-2-
Shandin Hills Estcppel
CDC/2008-9
Redevelopment Agency of the City of San Bernardino
201 North E Street
Suite 30 I
San Bernardino, California 9240 I
14, Landlord acknowledges that Tenant intends to assign all of its rights under the
Lease to CNL Income EAGL Leasehold Golf, LLC, a Delaware limited liability
company (the "Assilmee"). By separate instrument delivered to the Tenant and
the Assignee, Landlord has consented to such assignment of the Lease to
Assignee and to the further sublease of the Premises by the Assignee to Evergreen
Alliance GolfLirnited, LP on the terms described in the sublease.
15, This letter is issued with the intent that the Assignee and its lenders may rely
hereon in taking an assignment of the Lease.
Sincerely yours,
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO,
a public body, corporate and politic
Dated: 1- - Z -cJ!
By: ~
Name: Emil A, Marzullo
Title: Interim Ex~~~ector
Date: ~ -
A'ITEST:
By /fL~
Agency Secretary
APPROVED AS TO FORM AND
CONTENT:
BY:~~~
Agency Counsel
"'OC - 028981/000002.2677682 vS
Shandin Hills Estoppel
-3-
CDC/2008-9
EXHIBIT A
LEASE
I. Lease Agreement effective January I, 1985 by and between the Redevelopment Agency
of the City of San Bernardino and Shandin Hills Golf Club.
2. First Amendment to Lease Agreement dated August 19, 1985 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club,
3. Second Amendment to Lease Agreement effective January I, 1986 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
4. Third Amendment to Lease Agreement effective February 10, 1986 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
5. Revised Fourth Amendment to Lease Agreement, dated February 16, 1987, by and
between the Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
6. Fifth Amendment to Lease Agreement effective May 12, 1988 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
7. Sixth Amendment to Lease Agreement effective June 1989 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
8. Seventh Amendment to Lease Agreement, dated March 5, 1990, by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
\\\DC - 028987.lO000O2 - 2677682 vS
-4-
Shandin Hills Estoppel
CDC/2008-9
MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING (this "MOU") is entered into as ofthis
(,fir. day of March, 2008, by and among the REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO, a public body, corporate and politic ("Lessor"), the lessor under the Lease
defined and described below, SHANDIN HILLS GOLF CLUB, a California corporation ("Lessee"
or "Shandin Hills"), the current lessee under the Lease, CNL INCOME EAGL LEASEHOLD
GOLF, LLC, a Delaware limited liability company (the "Assignee" or "CNL"), as the assignee of
Lessee, and EVERGREEN ALLIANCE GOLF LIMITED, L.P., a Delaware limited partnership
("EAGL"), which will operate the premises described by the Lease (as defined below) under a
sublease agreement with the Assignee.
RECITALS:
A. Lessor and Lessee are parties to that certain Lease Agreement, dated as of January I,
1985, by and between Lessor, as lessor, and Lessee, as lessee, as amended, modified or otherwise
affected by the documents listed on Exhibit A hereto and incorporated herein by this reference
(collectively, the "Lease"), relating to the golf course property known as "Shandin Hills Golf
Course" and more particularly described in the Lease (the "Golf Course");
8. Pursuant to that certain Consent to Assignment of Lease and Sublease, Assumption
of Lease Obligations and Release (Shandin Hills Golf Course) dated on or about the date hereof by
and among the parties thereto (the "Consent Agreement"), a copy of which is attached hereto and
incorporated herein by this reference as Exhibit B, Lessor has consented to (1) the assignment by
Lessee to Assignee on or about the date hereof of Lessee's right, title and interest in, to and under
the Lease pursuant to the Consent Agreement and the Assignment of Lease (Shandin Hills Golf
Course) dated on or about the date hereof by and among the parties thereto (the "Assignment of
Lease"), a copy of which is attached hereto and incorporated herein by this reference as Exhibit C,
and (2) the sublease of the Golf Course on or about the date hereof by and among Assignee to
EAGL, pursuant to the Sublease Agreement (Shandin Hills Golf Course, San Bernardino,
California), a copy of which is attached hereto and incorporated herein by this reference as Exhibit
D'
-,
C. Without amending the Lease, the parties hereto have agreed: (i) to clarifY their
interpretation of certain language in the Lease concerning the exclusion of certain revenues from
"Gross receipts", "gross receipts" and/or "Gross Receipts", as defined in the Lease, for purposes of
calculating payments of "percentage rental" (as defined in the Lease), and (ii) to clarify their
interpretation of Section 2 of the Fifth Amendment to Shandin Hills Golf Club Lease, effective May
12, 1988 by and between the Lessor and the Lessee (the "Fifth Amendment").
NOW, THEREFORE, in consideration of the foregoing recitals, and for other good and
valuable consideration, the receipt and sufficiency of which the parties hereto hereby acknowledge,
the parties agree as follows:
1. Definitions. For purposes of this MOU, the following terms shall have the
meanings given them below:
1
CDC/2008-9
"Excluded Receipts" means fees, charges or rentals and revenues of the kind
described in the Exclusion Clause, The Excluded Receipts shall include sublease rental
payments received or payments received by a Rent Paying Party from another Rent Paying
Party out of the Remaining Funds, for each month and/or each lease year for the term of the
Lease. The Excluded Receipts do not include, and are excluded from, the Gross Receipts,
"Exclusion Clause" means the second paragraph of Section 28 of the Lease which
provides as follows: "Gross receipts shall not include fees, charges or rentals paid to Tenant
by a sublessee where the gross receipts of such sublessee are reported and subject to the
percentage rental schedule provided for hereinbefore,"
"Gross Receipts" means the "Gross receipts", "gross receipts" and/or "Gross
Receipts" defined in the first paragraph of Section 28 of the Lease and/or in the Lease.
Gross Receipts shall include, without limitation, all money, cash, receipts, assets, property
or revenues from the operations of the Golf Course, including, but not limited to, green fees,
motorized cart rental fees, hand cart rental fees, proceeds of golf pro shop items, goods,
wares and merchandise sold or rented at the Golf Course and/or at the pro shop, driving
range fees, or charges made for the use of, banquet facilities, food and beverage sales and all
other revenues from any other items or services common to golf courses not mentioned
above, for each month and/or lease year for the term of the Lease.
"Partial Operator" means any individual or entity whom Lessee, Assignee or
Subtenant engages to operate a portion of the Golf Course, whether as a subtenant, an
independent contractor, or otherwise.
"Remaining Funds" mean the revenues that remain after the Gross Receipts have
been collected by any individual or entity (including any Rent Paying Party) for each lease
year less the percentage rental that has been paid to Lessor from such collected Gross
Receipts at the end of each lease year, in accordance with the provisions of the Lease, for the
term of the Lease. By way of example only, if$I,OOO,OOO is collected as Gross Receipts for
a given lease year, and the Lessor under the Lease is entitled to $200,000 as percentage
rental for that lease year, the remaining $800,000 is Remaining Funds for that lease year,
"Rent Paving: Partv" means any individual or entity responsible for the payment of
percentage rental under the Lease, whether pursuant to the terms of the Lease or pursuant to
a sublease or other agreement by which such party agrees to make payments of percentage
rental on behalf of another party,
"Subtenant" means EAGL or any other individual or entity to whom "Tenant" (as
defined in the Lease), with the consent of Lessor, subleases the entire Golf Course, When
used herein, the terms "grOSS receipts," "minimum annual rental," "percentage rental,"
"lease vear," "Tenant" and other terms that are defined in the Lease have the meanings
given to them in the Lease,
2, Effect of Exclusion Clause. The parties clarify, acknowledge, confirm, understand
and agree that, under the terms of the Lease and for each month and/or lease year: (i) every dollar
of Gross Receipts that is collected at the Golf Course during such month and/or lease year, for the
term of the Lease, is to be included in the Gross Receipts for purposes of calculating percentage
2
CDC/2008-9
rental, whether each dollar of Gross Receipts is collected by Lessee, by Assignee, by Subtenant, by
a Partial Operator or by any other person or entity, and (ii) the Gross Receipts do not include the
Excluded Receipts for each month and/or lease year, for the term of the Lease,
3. Example Illustrating ODeration of Exclusion Clause, The example illustrating the
operation of the Exclusion Clause is attached hereto as Exhibit "E" and is incorporated herein by
this reference.
4, Section 2 of the Fifth Amendment to the Lease, The parties clarify, acknowledge,
confirm, understand, restate and agree that Lessee, Assignee and EAGL, and their permitted
successors and assigns, shall have the duty to maintain to the satisfaction of the Agency the
drainage easement located south of the condominiums on Little Mountain Drive (the legal
description of which is defined in Section 2 ofthe Fifth Amendment to the Lease), The parties agree
that the satisfaction of the Agency means that the drainage easement will be maintained by Lessee,
Assignee, EAGL and their permitted successors and assigns, in a manner that will increase the
visual aesthetics of the area,
5, Correction to Legal Description. The parties agree that the legal description
contained in the Sixth Amendment to the Lease is incorrect and will be replaced and substituted by
the legal description attached hereto and incorporated by this reference as Exhibit "F". The parties
agree that legal description in Exhibit "F" shall also replace and substitute the legal description in
any other agreements, documents or instruments, including without limitation the Consent
Agreement, the Assignment of Lease and any memorandum of lease in connection with the
assignment of the Lease by Shandin Hills to CNL and the sublease of the Golf Course by CNL to
EAGL.
6. Lease Unamended and in Effect. The Lease is not amended by this MOU. This
MOU is intended only as a clarification of: (i) the Exclusion Clause and as an illustration of the
manner in which the existing Exclusion Clause is intended to operate, and of (ii) Section 2 of the
Fifth Amendment to the Lease, The parties agree that the Lease remains in full force and effect in
accordance with its terms.
7. Governing Law. The laws of the State of California (not including the choice oflaw
provisions thereof) shall be applied in interpreting and enforcing this Amendment.
8. Invalid Provision. If any provision of this MOU is held to be illegal, invalid or
unenforceable, such provision shall be fully severable and the remaining provisions of this MOU
shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been
a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance from this MOU.
9, CounteIpart Si!!:TIatures, This Amendment may be executed in counterparts, and
upon all counterparts being executed, each counterpart shall be considered an original and all
counterparts together shall be considered as one Amendment.
[Signatures follow on the next page)
3
CDC/2008-9
IN WITNESS WHEREOF, the parties hereto have caused this MOU to be executed on
their behalf by their duly authorized representatives as of the date first set forth hereinabove,
LESSOR:
Dated:
j'-t~ .$"02'
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO,
a public body, corporate d politic
By:
Name: Emil A. M 0
Title: Interim Executive Director
ATTEST:
By: Ita L
Agency Secretary
APPROVED AS TO FORM AND
CONTENT:
BY:V~
Agency Couns
LESSEE:
SHANDIN HILLS GOLF CLUB,
a California corporation
By:
Name: Mark J, Friedman
Title: Secretary
[Signatures continue on the next page)
4
CDC/2008-9
IN WITNESS WHEREOF, the parties hereto have caused this MOU to be executed on
their behalf by their duly authorized representatives as of the date first set forth hereinabove.
LESSOR:
Dated:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO,
a public body, corporate and politic
By:
Name: Emil A. Marzullo
Title: Interim Executive Director
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM AND
CONTENT:
By:
Agency Counsel
LESSEE:
SHANDIN HILLS GOLF CLUB,
a California corporation
By:
Name: MIiFI. ], FFietlmllll
Title: Secl....luly
(Signatures continue on the next page)
4
CDC/2008-9
ASSIGNEE:
CNL INCOME EAGL LEASEHOLD
GOLF, LLC,
a Delaware limited liability company
B:
ame:
Title: Senior Ice President
EAGL:
EVERGREEN ALLIANCE GOLF
LIMITED, LP,
a Delaware limited partnership
By: PREMIER GOLF EAGL, GP,
LLC,
a Delaware limited liability company, its
General Partner
By:
Name:
Title:
\ \ \DC - 028987lO000O2 - 2682193 v6
CDC/2008-9
ASSIGNEE:
CNL INCOME EAGL LEASEHOLD
GOLF, LLC,
a Delaware limited liability company
By:
Name:
Title:
EAGL:
EVERGREEN ALLIANCE GOLF
LIMITED, LP,
a Delaware limited partnership
By: PREMIER GOLF EAGL, GP,
LLC,
a Delaware limited liability company, its
General Partner
B~<<~
N. ,L 'f "" fY/a. j tl.. fI1....IIe17
TItle: Vic-,,- Pres; JeJ\..---t 'i- 'Se(!~,,-i4l-I'
\ '\ \.DC. 028987lO000O2 . 2682193 v6
CDC/2008-9
EXHIBIT A
LEASE
1. Lease Agreement effective January 1, 1985 by and between the Redevelopment Agency
of the City of San Bernardino and Shandin Hills Golf Club.
2, First Amendment to Lease Agreement dated August 19, 1985 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club,
3. Second Amendment to Lease Agreement effective January 1, 1986 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
4. Third Amendment to Lease Agreement effective February 10, 1986 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
5, Revised Fourth Amendment to Lease Agreement, dated February 16, 1987, by and
between the Redevelopment Agency of the City of San Bernardino and Shandin Hills
Golf Club.
6. Fifth Amendment to Lease Agreement effective May 12, 1988 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
7, Sixth Amendment to Lease Agreement effective June 1989 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
8. Seventh Amendment to Lease Agreement, dated March 5, 1990, by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
\ \ \00. 028987/DOOOO2. 2682193 v6
CDC/2008-9
EXHIBIT B
CONSENT AGREEMENT
\ \ \DC - 028987lO000O2.2682193 v6
CDC/2008-9
EXHIBIT C
ASSIGNMENT OF LEASE
8
CDC/2008-9
EXHIBIT D
SUBLEASE AGREEMENT
9
CDC/2008-9
EXHIBIT "E"
EXAMPLE ILLUSTRATING THE OPERA nON OF THE
EXCLUSION CLAUSE
10
CDC/2008-9
Exhibit "E"
Shandin Hills Golf Course
For the Period July 2006 through June 2007
(Actual- No Sublease)
Income
Total Income
$1,011,080
425,641
40,993
88,480
650,996
175,998
152.983
$2,546,171
Greens
Carts
Range
Merchandise Sale
Food
Beverage
Other
Gross Receipts
$2,546,171
Shandin Hills Golf Course
For the Period July 2007 through June 2008
(Example - with Sublease)
Income
Greens
Carts
Range
Merchandise Sale
Food
Beverage
Other
Sublease Payments
Total Income
$1,011,080
425,641
40,993
88,480
650,996
175,998
152,983
400.000 *
$2,946, I 71
Gross Receipts
$2,546,171
* Per Section 28 of the Current Lease, Gross receipts, shall not include fees, charges or
rentals paid to Tenant by a sublessee where the gross receipts of such sublessee are
reported and subject to the percentage rental schedule,
CDC/2008-9
UPON RECORDING RETURN TO:
American Golf Corporation
clo Christine Chong, V,P, Real Property
2951 28" Street, Suite 3000
Santa Monica. California 90405
Memorandum of Lease
THIS MEMORANDUM OF LEASE (this "Memorandum"), entered into as of
this ~~ day of March, 2008, by and between THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO, a public body, corporate and politic, ("Landlord"), and
SHANDIN HILLS GOLF CLUB, a California corporation ("Tenant").
W!TN E SE TH:
THAT, Landlord and Tenant have heretofore entered into a certain Lease
Agreement effective as of January I, 1985, as amended, modified, or otherwise affected by the
documents listed on Exhibit A attached hereto and incorporated herein by this reference
(collectively, the "Lease") covering certain real property located in the City of San Bernardino,
County of San Bernardino, California, more particularly described on Exhibit B attached hereto
and incorporated herein by this reference (the "Leased Prooertv); and
WHEREAS, it is the desire of both Landlord and Tenant to memorialize the Lease
and set forth certain pertinent data with respect thereto,
NOW THEREFORE, with respect to the Lease, Landlord and Tenant hereby
acknowledge and agree as follows:
I. Demise. Tbe Leased Property has been and is hereby demised, let and
leased, by Landlord to Tenant, and taken and accepted by Tenant from Landlord, all pursuant to
and in accordance with the Lease.
\\\DC_0289811OOOOO2_2679524v2
CDC/2008-9
2. Term. The Term of the Lease is for fifty-two (52) years commencing on
January I, 1985 (the "Commencement Date").
3. Possession, Landlord has delivered possession of the Leased Property to
Tenant and Tenant has accepted delivery and taken possession of the Leased Property from
Landlord in the "as is" condition of the Leased Property on the Commencement Date.
4. Inconsistent Provisions. The provisions of this Memorandum constitute
only a general description of the content of the Lease with respect to matters set forth herein.
Accordingly, third parties are advised that the provisions of the Lease itself shall be controlling
with respect to all matters set forth herein. In the event of any discrepancy between the
provisions of the Lease and this Memorandum, the provisions of the Lease shall take precedence
and prevail over the provisions of this Memorandum.
[SIGNATURES APPEAR ON FOLLOWING PAGES!
\\\DC.02l9l7/000002-2679S24v2
CDC/2008-9
IN WITNESS WHEREOF, Landlord and Tenant have caused this Memorandum
to be duly executed on or as of the day and year first above written.
LANDLORD:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO,
a public body, corporate and politic
Dated: +- J" .o"il
ATTEST:
By: ~
Name: Emil A, Marzu1lo
Title: Int~ Executive Director
Date: -tr-ei
By ;Q, 5k.~
Agency Secretary
APPROVED AS TO FORM AND
CONTENT:
By: ~ ?v~
Agen y Co
TENANT:
SHANDIN HILLS GOLF CLUB,
a California corporation
By:
Name: Mark I. Friedman
Title: Secretary
\\\DC.Cl2t9l71OOOOO2.26195M.2
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
- ~ pHr: :-::~
County of M-
an vIIl,.\,- ~f ~ooe before me,
~DsJ.
personally appeared c.mJ.tJJ (~. ~lLo
t.-
Name(s)ofSIgner(s)
I~-:::----J
@ c:.:C~902.
J ~ - - CcIIIIolna I
Ian ....__ CCUlly -
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Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the personlej whose namelej is.lafe subscribed to the
within instrument and acknowledged to me that
he!lll:1eAAey executed the same in hisll:1er:::'lIlil authorized
capacitylieej, and that by hisilliritlleir signaturelil on the
instrument the person~, or the entity upon behalf of
which the person~acted, executed the instrument.
f
I certify under .EN TV OF PERJURY under the laws
of the State f Calif l'Ilia that the foregoing paragraph is
true and co rect, ! I.
WITNESS
Signature of Notary Public
d official seal.
Signature
OPTIONAL
Though the information below is not required by Jaw; it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attache~
'"..~...~ r~~~ '
Document Date: 'L ~ W
Signer(s) Other Than ~ed Above: € .
Capacity(ies) Claimed by Signer(s)
Signer's Name: ~ < & '1..~1lo
o Individual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
o Attorney in Fact
o Trustee
S-- Guardi
r- her:
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Number ot Pages: 1
Signer's Name:
o Individual
o Corporate Otticer - Title(s):
o Partner - 0 Limited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
o Other:
RIGHT THlH,lGPRINT
O~ c~IGNER
Top of thumb here
Signer Is Representing:
02007 National Notary Association . 9350 De Solo Ave., P.O. Box 2402 . Chatsworth, CA 91313-2402. www.NationalNotary,org Item t5907 Reorder: Call Toll-Free 1-800-876-6827
CDC/2008-9
IN WI1NESS WHEREOF, Landlord and Tenant have caused this Memorandum
10 be duly executed on or as ofthe day and year firsl above written.
LANDLORD:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO,
a public body, corporate and politic
Dated:
By:
Name: Emil A. Marzullo
Title: Interim Executive Director
Date:
ATTEST:
By
Agency Secretary
APPROVED AS TO FORM AND
CONTENT:
By:
Agency Counsel
By:
Name: Ma
Title: Secre
TENANT:
WOC.028981/000002-2679524v2
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
- MliA\!
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E:/v_<:'L- (';,()~ AJIJIa.r1/ PILi!;.:::..
I Here Inse Name and TdIe 01 IOfficef
fr;tl n. ..._
Name(s} of Signer(s)
State of California
On
personally appeared
ftllLrl< T
~ - - - - ~ - - - - - - ~
ELYSE COOK
... Commission # 1479395
~ ,.... Notary Public. Call1omla ~
, , los Angeles Counly
My Comm. Expires Apt 26. 2008
who proved to me on the basis of satisfactory evidence to
be the person(lJ1' whose name(~islare subscribed to the
within instrument and acknowledged to me that
helsheAhsy executed the same in his/h,,:1I ",i, authorized
capacity~), and that by hisll ,~,/1I ,oi, signature(sl' on the
instrument the person(~, or the entity upon behalf of
which the person(S') acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
Place Notary Seal Above
Signature
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type ot Document: /fl b#rt f),..a.^I-
Document Date:
"f Ua.,S e
Number 01 Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer Is Represe
Sign Name:
ndividual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
o Other:
Signer's Name:
o Individual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
o Other:
Top of thumb here
Signer Is Representing:
- _..: "'" ""',..,.
02007 National Notary Association. 9350 De Solo Ave., P.O. Box 2402-ChaIswor1h,CA 91313-2402-www.NationalNotary.org Item 15907 Reon1er:CaIIT~..free 1..a00-876-6821
CDC/2008-9
EXHIBIT A
LEASE
1. Lease Agreement effective January 1, 1985 by and between the Redevelopment Agency
of the City of San Bemardino and Shandin Hills Golf Club.
2. First Amendment to Lease Agreement dated August 19, 1985 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
3, Second Amendment to Lease Agreement effective January 1, 1986 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
4. Third Amendment to Lease Agreement effective February 10, 1986 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
5, Revised Fourth Amendment to Lease Agreement, dated February 16, 1987, by and
between the Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
6. Fifth Amendment to Lease Agreement effective May 12, 1988 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club.
7, Sixth Amendmenl to Lease Agreement effective June 1989 by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club,
8, Seventh Amendment to Lease Agreement, dated March 5, 1990, by and between the
Redevelopment Agency of the City of San Bernardino and Shandin Hills Golf Club,
\\\DC _028931.1000002. 2679S24v2
CDC/2008-9
Exhibit B
Leased Property
(see attached)
\\\0( _02&987lO000O2. 2679S24 v2
CDC/2008-9
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