Exhibit 10.30.3
Prepared by and Return to:
PARKER POE ADAMS & BERNSTEIN, L.L.P.
200 Meeting Street, Suite 301
Charleston, South Carolina 29401
Attn: Matthew J. Norton, Esq.
SECOND AMENDMENT TO PARCEL F DEVELOPMENT
AGREEMENT
THIS
SECOND AMENDMENT TO PARCEL F DEVELOPMENT AGREEMENT (this "Second
Amendment") is made as of the 10th day of August, 2005, by and
among, PARCEL F, LLC , a Florida limited liability company,
formerly known as Innisbrook F, LLC ("Parcel F Purchaser"); GOLF
HOST RESORTS, LLC , a Colorado limited liability company,
formerly known as Golf Host Resorts, Inc., a Colorado
corporation ("Golf Host"); and GTA IB, LLC , a Florida
limited liability company; and consented to by GOLF TRUST OF
AMERICA, L.P. , a Delaware limited partnership (collectively,
"GTA").
THE
PARTIES ENTER THIS SECOND AMENDMENT on the basis of the following
facts,
A. As
of March 29, 2004, Parcel F Purchaser and Golf Host
entered into (with the consent of Golf Trust of America, L.P.) the
Parcel F Development Agreement recorded in OR Book 13469,
Page 480 of the Public Records of Pinellas County, Florida (as
amended, the "Development Agreement").
B. As
of March 11, 2005, Parcel F Purchaser and Golf Host
entered into (with the consent of Golf Trust of America, L.P.)
the First Amendment to the Parcel F Development
Agreement.
C. Golf
Host was the owner of the real property more particularly described
on Exhibit A-1 to the Development Agreement (the
"Golf Course Parcel") located within the community commonly known
as "Innisbrook" upon which golf courses and other facilities are
located (collectively, the "Club Facilities"). Subsequently, Golf
Host conveyed all of its right, title, and interest in the Golf
Course Parcel to GTA IB, LLC, a subsidiary of Golf Trust of
America, L.P., and as a result thereof, GTA IB, LLC is
hereby added as a party to the Development Agreement as the Golf
Course Owner.
D. Golf
Host is the owner of the real property more particularly described
on Exhibit A-2 to the Development Agreement
("Parcel F") located within Innisbrook and adjacent to
holes 8 through 14 of the 18 hole "Island" golf course located
within the Golf Course Parcel (the "Island Course").
E. Golf
Host intends to sell to Parcel F Purchaser, and Parcel F
Purchaser intends to purchase from Golf Host, Parcel F
pursuant to and in accordance with certain Amended and Restated
Agreement For Sale And Purchase of Real
Property—Parcel F dated June 29, 2004, which
amended and restated that certain Agreement for Purchase and Sale
of Real Property dated July 13, 2001 (as amended, "Purchase
Agreement").
F. Parcel
F Purchaser intends to develop Parcel F as a residential
community pursuant to the Development Agreement containing common
areas and a mixture of product types and not more than 400
residential units, as more particularly described in the Plans (as
defined in the Development Agreement) as the Plans may be modified
pursuant to the Development Agreement and such Parcel F
development shall include without limitation the development of the
Parcel F Access Road in accordance with the terms of the
Development Agreement (collectively, the "Parcel F
Development").
G. Subject
to the usual and customary noise and other unavoidable impacts
directly associated with the development of the Parcel F
Development, Parcel F Purchaser has agreed pursuant to the
Development Agreement (A) to undertake the Parcel F
Development in accordance with the Plans and in such a manner so as
to (i) avoid any unnecessary and/or avoidable disruption to
the Club Facilities to the fullest extent practicable,
(ii) comply with the limitations set forth in the Development
Agreement including Exhibit N to the Development
Agreement, and (iii) comply with all applicable
laws, rules and regulations, and
(B) to require purchasers of residential units located on
Parcel F to promptly join the Innisbrook Resort and Golf
Club.
H. Parcel F
Purchaser, Golf Host, and GTA now agree to further amend the
Development Agreement subject to the terms, provisions, and
covenants contained in this Second Amendment.
NOW,
THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration the receipt of which and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
1.
Recitals.
The party making the respective foregoing
Recitals represents that the respective Recitals are true and
correct. The Recitals are incorporated into this Second Amendment
by reference as binding provisions on the parties.
2.
Definitions.
Certain defined terms used in this Second
Amendment are denoted by the capitalizing of the first letter in
such term. When used herein, such terms shall have the meaning
given to them in the Development Agreement, unless either context
or use clearly indicates otherwise or such terms are elsewhere
herein defined.
3.
Section 5.3.
Section 5.3 of the Development
Agreement is hereby deleted in its entirety and the following
Section 5.3.1 is substituted in lieu thereof:
5.3.1
Improvements.
Parcel F Owner shall be solely responsible
for all fees, costs and expenses of improvements (including,
without limitation, securing all permits and other governmental
approvals required in connection with the improvements described in
this Section 5.3.1, Section 5.3.2, and
Section 5.3.3) on (a) the Golf Course Parcel constructed
by Golf Course Owner pursuant to this Agreement in accordance with
Exhibit Q-1 and Exhibit Q-2
attached hereto, and (b) Parcel F and the Parcel F Access
Road Parcel necessary to construct the Parcel F Development,
including, without limitation, items which are contained in
Exhibit Q-1 and Exhibit Q-2
and the roadway to be constructed upon Parcel F Access Road
Parcel in (1) substantial accordance with and as described in
the construction plans for the Parcel F Access Road prepared
by King Engineering Associates dated July 23, 2001, SP#
1050.071, job number 1218-006-000, a true, correct and complete
copy of which Parcel F Owner agrees it has provided to Golf
Course Owner and GTA, and (2) accordance with all applicable
governmental permits, approvals, laws and ordinances, and all
drainage and wetland mitigation required in connection therewith.
At anytime after Parcel F Owner's completion of Parcel F
Access Road and all infrastructure improvements in connection
therewith, upon receiving Golf Course Owner's written request,
Parcel F Owner shall promptly execute and deliver a lien free
bill of sale to Golf Course Owner, at Parcel F Owner's sole
cost and expense, for all such improvements and all such
improvements shall belong to and be the sole and exclusive property
of Golf Course Owner with no rights vested in any other Person,
including, without limitation, Parcel F Owner; provided,
however, that Parcel F Owner and Parcel F Unit Owners
shall have the right to use such improvements to the extent of the
Easements granted to Parcel F Owner and Parcel F Unit
Owners by Golf Course Owner under this Agreement or other rights of
Parcel F Owner or Parcel F Unit Owners. Parcel F
Owner, at its sole cost and expense, agrees that any and all
necessary maintenance, repair and all other activities necessary to
satisfy and comply with any governmental requirements with respect
to Parcel F Access Road shall be the sole responsibility of
Parcel F Owner and shall be performed by Parcel F Owner
in a professional, high-quality manner and promptly and diligently
completed once commenced by Parcel F Owner. If the Plans are
modified in any way and the Golf Course Owner reasonably determines
that the Golf Course Parcel is adversely impacted by such
modification, in addition to those improvements described in
Exhibit Q-1 and Exhibit Q-2 ,
then Parcel F Owner shall either pay for or promptly reimburse Golf
Course Owner for the cost of such additional improvements that are
necessary, in Golf Course Owner's reasonable opinion, because of
such changes. Parcel F Owner agrees that the scheduling of
Parcel F Development construction that
2
impacts the Golf Course Parcel
improvements shall be reasonably coordinated with the construction
of improvements to the Golf Course Parcel made in accordance with
Exhibit Q-1 and Exhibit Q-2 ,
in order to take into account optimum time frames for sodding,
reseeding and overseeding of turf and other agronomic
issues.
4.
New Section 5.3.2.
The following new Section 5.3.2 shall
be added to the Development Agreement.
5.3.2
Relocation of Parcel F Access
Road. Subject to the obligations as
described in Section 5.3.1, Parcel F Owner may elect, by
notifying Golf Course Owner to attempt to shift the location of the
Parcel F Access Road approximately 15 to 25 feet further away from
hole 18 of the Island Golf Course ("Parcel F Access Road
Relocation"); provided, however, that any such election by
Parcel F Owner is subject to the prior written approval of
Golf Course Owner in its sole discretion. Upon receipt of such
election notice, Golf Course Owner shall have thirty (30) days
to provide Parcel F Owner with a description of which of the
improvements to the Parcel F Access Road Parcel and Golf Course
Parcel as described in Exhibit Q-2 , as the same
may be amended by Parcel F Owner and Golf Course Owner as a result
of the Relocation of Parcel F Access Road, that are contiguous to
the 18 th hole of the Island Golf Course will be
required along with a cost estimate and cost cap for such
improvements. Thereafter, Parcel F Owner shall have thirty
(30) days from receipt to notify Golf Course Owner of its
election to continue to pursue the Parcel F Access Road
Relocation. In the event Parcel F Owner elects to continue to
pursue the Parcel F Access Road Relocation, Parcel F Owner
shall be required to (a) attempt to obtain, at Parcel F
Owner's cost, all governmental permits and approvals necessary in
order to construct the Parcel F Access Road in such new
location, and (b) pay for the additional cost of construction,
if any, of the Parcel F Access Road due to such new location
above and beyond the cost of construction in the prior location. If
Parcel F Owner makes such election to pursue the Relocation
and Golf Course Owner consents to such election, Parcel F Owner
agrees (i) to schedule all required activity such that the
improvements contemplated in Exhibit Q-1 and any
applicable improvements to the Parcel F Access Road Parcel and
as described in Exhibit Q-2 that are contiguous
to the 18 th hole of the Island Golf Course shall be
completed so that the Island Golf Course is o
