WITNESSETH:
WHEREAS, Tree Farm intends to develop a private, eighteen (18) hole golf course and golf facility (with overnight accommodations, food and beverage services, clubhouse, pro shop and practice grounds) located on more than 500 acres of land in Aiken County, South Carolina (such developments and improvements, collectively, the “Golf Facility”); and
WHEREAS, Tree Farm desires to admit Club Member as an honorary member of the Golf Facility and grant to Club Member a limited, non-exclusive right to utilize the Golf Facility, and Club Member desires to be so admitted and accept such right, all upon the terms, conditions, covenants and agreements hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Tree Farm and Club Member do hereby covenant and agree as follows:
1. Membership
Subject to the terms hereof, Tree Farm hereby admits Club Member as a honorary member of the Golf Facility and grants to Club Member a limited, non-exclusive right to utilize and enjoy the Golf Facility (the “Membership Right”) for the Term (as hereinafter defined), subject to revocation by Tree Farm for Club Member’s default as provided herein. For the avoidance of doubt,
(a) the Membership Right and Club Member’s utilization of the Golf Facility shall be subject to any and all written rules, regulations, bylaws and standards or codes of conduct of general applicability as may be adopted from time to time by Tree Farm in respect of the Golf Facility in its sole discretion (the “Rules & Regulations”), copies of which shall be made available to Club Member,
(b) subject to the Rules & Regulations, the Membership Right shall enable and permit Club Member’s accompanied (or unaccompanied as provided herein) guests to utilize the Golf Facility on predetermined days that are the subject of a prior reservation submitted by Club Member to Tree Farm and which has been confirmed by Tree Farm, including overnight reservations to enable and permit Club Member to utilize the Golf Facility’s overnight accommodations at the Golf Facility for Club Member and Club Member’s guests; and
(c) the Membership Right shall not entitle Club Member or Club Member’s guests to free, reduced rate or complimentary greens fees, caddie fees, overnight accommodations or food and beverage at the Golf Facility (it being understood that Club Member and Club Member’s guests will be required to pay Tree Farm at Tree Farm’s then-prevailing list rates for greens fees, caddies, overnight accommodations and food and beverage). Notwithstanding the foregoing, Tree Farm shall waive green fees incurred directly by Club Member during the Term (excluding the week the Masters Golf Tournament is held in Augusta, Georgia).
2. Term.
The Membership Right granted hereby shall commence on the Effective Date (the “Commencement Date”) and expire upon the first to occur of (a) Club Member’s death or voluntary resignation, (b) termination of this Agreement by Tree Farm in accordance with the terms of this Agreement, or (c) Tree Farm’s voluntary revocation of the Club Member’s honorary member status, as determined in Tree Farm’s sole discretion, which shall be in writing and shall provide Club Member with no less than thirty (30) days written notice to the Club Member of such revocation (the “Term”). Upon the expiration of the Term, Club Member shall have no right, title, or interest whatsoever with respect to the Property or the Golf Facility.
3. Waiver of Membership Initiation Fee and Dues.
The Club Member shall not be required to pay any initiation fee and shall not be required to pay any monthly member fees or dues, and shall not pay any green fees for Club Member’s use of the golf course, provided that the Club Member will be charged caddie fees, fees for room and board and the Club Member’s guests will pay both green fees and room and board, including overnight reservations to enable and permit Club Member and Club Member’s guests to utilize the Golf Facility’s overnight accommodations at the Golf Facility.
4. Permitted Use.
(a) Club Member and Club Member’s accompanied guests may use the Golf Facility solely for activities that are consistent with those ordinarily conducted at a private, eighteen (18) hole championship golf course and golf facility, and for no other purpose. The use of the Golf Facility by Club Member and Club Member’s accompanied guests shall, for the avoidance of doubt, be subject to the Rules & Regulations, and Club Member agrees to comply and cause Club Member’s accompanied guests to comply with the Rules & Regulations.
(b) The Club Member may arrange for unaccompanied guests to use the Golf Facility solely for activities that are consistent with those ordinarily conducted at a private, eighteen (18) hole championship golf course and golf facility, and for no other purpose. The use of the Golf Facility by Club Member’s unaccompanied guests shall, for the avoidance of doubt, be subject to the Rules & Regulations, and Club Member agrees to comply and cause Club Member’s unaccompanied guests to comply with the Rules & Regulations, who will be charged unaccompanied guest rates.
(c) Club Member’s use of the Golf Facility shall be subject at all times to the right of Tree Farm, its agents, invitees, employees and contractors (as well as other individuals holding membership rights granted by Tree Farm (and their guests) and Tree Farm’s equity owners (and their guests)) to access and utilize the Golf Facility.
(d) Participation as a Club Member in club tournaments held at the Golf Facility is by Tree Farm’s written invitation only.
5. Indemnity.
Club Member shall indemnify, defend and hold harmless Tree Farm from and against any and all loss, claims, liability or costs (including court costs and attorneys’ fees) incurred by reason of (a) any damage to any property (including but not limited to property of Tree Farm and the Golf Facility) or any injury (including but not limited to death) to any person occurring in, on or about the Golf Facility to the extent that such injury or damage shall be caused by or arise from the negligence or intentional misconduct of Club Member or Club Member’s guests; or (b) any breach or default on the part of Club Member in the performance of any covenant or agreement on the part of Club Member to be performed pursuant to this Agreement. The provisions of this Section will survive termination of this Agreement with respect to any claims or liability accruing prior to such termination.
6. Default/Remedies.
(a) Club Member shall be in default under this Agreement if (i) Club Member fails to timely pay any bill or member statement; (ii) fails to comply with any term, covenant or condition of this Agreement or the Rules & Regulations for a period of thirty (30) days after Club Member’s receipt of written notice from Tree Farm of such failure (provided, however, (x) if such failure is non-monetary and cannot reasonably be cured within such thirty (30) day period, Club Member will not be in default hereunder if Club Member commences to cure within such thirty (30) day period and prosecutes the cure to completion in good faith and with due diligence, (y) the applicable cure period in respect of any monetary default by Club Member hereunder shall be ten (10) days rather than thirty (30) days, and (z) no cure period shall apply in respect of any breach by Club Member of this Agreement or the Rules & Regulations which involves the same or similar conduct by Club Member and which was previously the subject of a written breach notification by Tree Farm to Club Member; (iii) Club Member is adjudicated as bankrupt or insolvent according to law; (iv) Club Member makes any assignment for the benefit of creditors; or (v) Tree Farm determines, in its sole discretion, that Club Member is engaging in or has engaged in conduct that is harassing, offensive, unlawful, disparaging or not in accordance with the standards for membership in Tree Farm, or that has or reasonably could have a detrimental effect on Tree Farm or any of its staff, employees, guests or members or their reputation. If Club Member is in default hereunder, Tree Farm may immediately terminate this Agreement by written notice to Club Member. Upon such termination by Tree Farm, Club Member will remove all of Club Member’s effects from the Golf Facility and will no longer have any right of access or use whatsoever in respect of the Golf Facility.
7. Binding Effect; Assignment.
Club Member may not assign or transfer (whether by operation of law or otherwise, and whether in whole or in part) this Agreement or the Membership Right granted hereunder to any other person or entity.
8. Miscellaneous.
(a) Severability. Each covenant, agreement, term, or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any part of this Agreement or the application thereof in any circumstance or to any person or entity shall to any extent be held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement or the application of such part to circumstances or to a person or entity other than those to which it has been held invalid shall be and remain in full force and effect.
(b) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina, without regard to the conflict of laws principles thereof.
(c) Application of Laws. This Agreement is subject to all local, state and federal laws and regulations now or hereafter in force.
(d) Modification. This Agreement may not be modified except by an instrument duly signed by the party against which enforcement is sought. For the avoidance of doubt, any such modification shall be enforceable as against Tree Farm only if Tree Farm’s authorized officer or manager of Tree Farm executes such instrument on behalf of Tree Farm.
(e) Waiver. No failure by Tree Farm to insist upon the strict performance of any term or condition hereof or to exercise any right, power or remedy consequent upon a term thereof shall constitute a waiver of any such term or of any such breach. No waiver by Tree Farm of any term or condition hereof shall be effective unless made in writing. Any waiver of a breach of any provision hereof will not constitute a waiver of any subsequent breach of such provision, or of a breach of any other provision of this Agreement.
(f) Entire Agreement. The parties agree that this instrument contains the entire agreement between them as of the Effective Date, that there are no representations, promises or undertakings not expressed herein, and that there are no collateral agreements, stipulations, promises or undertakings whatsoever by the respective parties in any way affecting the subject matter of this Agreement which are not expressly contained in or referenced in this instrument.
(g) Authority. Each party hereby represents and warrants to the other that the execution and performance of this Agreement by the undersigned individuals on their respective behalf has been authorized by all necessary partnership, corporate or limited liability company actions, and that neither entering into this Agreement nor the performance hereof will violate any other agreement to which it is a party or by which it is bound.
(h) Notices. All notices or other communications hereunder shall be in writing and shall be given in the manner first set forth above.
(i) Subordination. This Agreement is and will automatically be subject and subordinate to the lien of any and all mortgages (which term “mortgage” will include both construction and permanent financing and will include deeds of trust and similar security instruments) which may now or hereafter encumber or otherwise affect the Golf Facility or any real property on which any of the Golf Facility is operated, or Tree Farm’s or any of its subsidiaries’ respective interest therein, and to all and any renewals, extensions, modifications, recastings or refinancings thereof.
(j) Counterparts. This Agreement may be executed in counterparts, which when taken together shall be deemed collectively as one (1) original Agreement. Execution and delivery of this Agreement by DocuSign or pdf scan shall have the same effect as delivery of an original signature.
(k) Third Party Beneficiaries; No Partnership. This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties (excepting parties to whom Club Member may assign this Agreement in accordance with the terms hereof, and excepting any successor or assign to Tree Farm) any right to claim damages or to bring any suit, action or other proceeding against either Tree Farm or Club Member because of any breach hereof or because of any of the terms, covenants, agreements and conditions herein. Nothing contained in this Agreement shall be deemed or be construed to create a partnership or joint venture of or between Tree Farm and Club Member, and Club Member further acknowledges and agrees that, for the avoidance of doubt, Club Member has no ownership interest or expectation thereof in any of the Golf Facility, any real property on which any of the Golf Facility is operated, Tree Farm or any subsidiary of Tree Farm.
(l) No Other Rights. Neither the execution of this Agreement nor any agreement executed in connection herewith, nor the granting of the Membership Right described herein, shall be deemed to grant any other right or to establish any other right by implication or prescription, and the only rights made and granted are the rights that are expressly made and granted by this Agreement.
