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FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
[x] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _________________ to ___________________
Commission File Number 1-9319 Commission File Number 1-9320
CALIFORNIA JOCKEY CLUB BAY MEADOWS OPERATING COMPANY
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(Exact name of registrant as (Exact name of registrant as
specified in its charter) specified in its charter)
DELAWARE DELAWARE
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(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
94-0358820 94-2878485
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(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
2600 South Delaware Street 2600 South Delaware Street
P.O. Box 1117 P.O. Box 5050
San Mateo, California 94403 San Mateo, California 94402
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(Address of principal (Address of principal
executive offices) (Zip Code) executive offices) (Zip Code)
(415) 573-4514 (415) 574-7223
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(Registrant's telephone number, (Registrant's telephone number,
including area code) including area code)
Securities registered pursuant to Section 12 (b) of the Act:
(Title of each class) (Title of each class) Common Stock, $.01 par value per
share Common Stock, $.01 par value per share
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FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
[x] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _________________ to ___________________
Commission File Number 1-9319 Commission File Number 1-9320
CALIFORNIA JOCKEY CLUB BAY MEADOWS OPERATING COMPANY
- --------------------------------- ---------------------------------------
(Exact name of registrant as (Exact name of registrant as
specified in its charter) specified in its charter)
DELAWARE DELAWARE
- --------------------------------- ---------------------------------------
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
94-0358820 94-2878485
- ------------------------------------ -------------------------------------
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
2600 South Delaware Street 2600 South Delaware Street
P.O. Box 1117 P.O. Box 5050
San Mateo, California 94403 San Mateo, California 94402
- ------------------------------------ -------------------------------------
(Address of principal (Address of principal
executive offices) (Zip Code) executive offices) (Zip Code)
(415) 573-4514 (415) 574-7223
- ------------------------------------ -------------------------------------
(Registrant's telephone number, (Registrant's telephone number,
including area code) including area code)
Securities registered pursuant to Section 12 (b) of the Act:
(Title of each class) (Title of each class) Common Stock, $.01 par value per
share Common Stock, $.01 par value per share
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American Stock Exchange, Inc. American Stock Exchange, Inc.
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(Name of each exchange on which (Name of each exchange on which
registered) registered)
Securities registered pursuant to Section 12 (g) of the Act:
None
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(Title of class)
Indicate by check mark whether the registrants (1) have filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrants were required to file such reports), and (2) have been subject to
such filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of the paired voting stock held by non-affiliates of
California Jockey Club as of March 17, 1997, was $256,736,810 based upon a per
share price of $46.00. Directors and executive officers are considered
affiliates for purposes of this calculation, but should not necessarily be
deemed affiliates for any other purpose.
The aggregate market value of the paired voting stock held by non-affiliates of
Bay Meadows Operating Company as of March 17, 1997, was $251,494,650 based upon
a per share price of $46.00. Directors and executive officers are considered
affiliates for purposes of this calculation, but should not necessarily be
deemed affiliates for any other purpose.
5,763,257 shares of California Jockey Club Common Stock were outstanding as of
March 17, 1997.
5,763,257 shares of Bay Meadows Operating Company Common Stock were outstanding
as of March 17, 1997.
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PART I
ITEM 1. BUSINESS
The information set forth in "Business" below includes "forward-looking
statements" within the meaning of Section 21E of the Securities and Exchange
Act of 1934, as amended, and is subject to the safe harbor created by that
section. Readers are cautioned not to place undue reliance on these
forward-looking statements and to note that they speak only as of the date
hereof. Factors that realistically could cause actual results to differ
materially from those set forth in the forward-looking statements include the
following: nonconsummation of the merger agreement with Patriot American
Hospitality, Inc. ("Patriot"), nonconsummation of the Franklin Agreement or the
Iacocca Agreement (as hereinafter defined), failure to secure the necessary
governmental approvals to construct new stalls at the Bay Meadows Racecourse,
and the risk factors set forth in "Risk Factors" in Item 7.
INTRODUCTION
California Jockey Club ("Cal Jockey") operates as an equity real estate
investment trust under the Internal Revenue Code of 1986, as amended, and is the
owner of the Bay Meadows Racecourse (sometimes referred to herein as the
"Racecourse"). Bay Meadows Operating Company ("Bay Meadows") is a gaming and
entertainment company currently conducting horse racing at Bay Meadows
Racecourse in San Mateo, California. The Racecourse abuts the 101 Freeway which
is the main thoroughfare between the cities of San Jose and San Francisco. The
Racecourse is located about halfway between the two cities and is located about
seven miles south of the San Francisco International Airport. Cal Jockey and Bay
Meadows (collectively, the "Companies") are corporations which were incorporated
in 1983. The Companies' predecessor was incorporated in 1932 and began
conducting horse racing at the Racecourse in 1934. This document constitutes the
Annual Report on Form 10-K for both Cal Jockey and Bay Meadows.
Since 1983, Cal Jockey's shares of common stock, par value $.01 per share ("Cal
Jockey Common Stock"), have been paired and trade together with the shares of
common stock, par value $.01 per share ("Bay Meadows Common Stock"), of Bay
Meadows (the "Paired Shares") as a single unit on the American Stock Exchange
(the "AMEX") (symbol "CJ") pursuant to a stock pairing arrangement. The terms
of this pairing arrangement are set forth in the Pairing Agreement, dated as of
February 17, 1983 and amended from time to time thereafter, by and between Cal
Jockey and Bay Meadows (the "Pairing Agreement"). The pairing is evidenced by
"back-to-back" certificates and the certificates bear a legend referring to the
restrictions on transfer imposed by the bylaws of the Companies. As a result, a
stockholder can only purchase or sell an equal number of shares of both
companies.
THE PATRIOT TRANSACTION
On October 31, 1996, Cal Jockey and Bay Meadows entered into a merger agreement
with Patriot American Hospitality, Inc. ("Patriot"). The merger agreement was
approved unanimously by the Boards of Patriot, Cal Jockey and Bay Meadows and
is subject to approval by the shareholders of each of Patriot, Cal Jockey and
Bay Meadows.
Pursuant to the merger agreement, Patriot will merge with and into Cal Jockey,
with Cal Jockey being the surviving company. The shareholders of Cal Jockey
and Bay Meadows will have the option either to tender each of their paired
shares for $33.00 in cash or to retain their paired shares, which will remain
outstanding after the merger and will represent the same number of paired
shares of the Companies' common stock.
MERGER AGREEMENT. On October 31, 1996, Patriot, Cal Jockey and Bay Meadows
entered into a binding business combination agreement (the "October 31, 1996
Agreement") pursuant to which the parties agreed, subject to stockholder
approval and other conditions, to engage in a business transaction. The parties,
together with Patriot American Hospitality Partnership, L.P., a limited
partnership (the "Patriot Partnership"), thereafter entered into an Agreement
and Plan of Merger, dated as of February 24, 1997 (the "Merger Agreement"),
which by its terms supersedes the October 31, 1996 Agreement and more fully
details the transactions to be consummated by the parties.
Pursuant to the Merger Agreement, Patriot will merge with and into Cal Jockey
(the "Merger"), with Cal Jockey being the surviving company. In connection with
the Merger, Cal Jockey's name will be changed to "Patriot American Hospitality,
Inc." ("New Patriot REIT") and Bay Meadows' name will be changed to "Patriot
American Hospitality Operating Company" ("New Patriot Operating Company").
Patriot stockholders will be entitled to receive for each share of common stock,
no par value per share, of Patriot ("Patriot Common Stock") held by them at the
effective time of the Merger, as adjusted as a result of the two-for-one split
of Patriot stock announced in February 1997, 0.519 shares of common stock, par
value $.01 per share, of New Patriot REIT ("New Patriot REIT Common Stock") and
0.519 shares of common stock, par value $.01 per share, of New Patriot Operating
Company ("New Patriot Operating Company Common Stock") (subject to certain REIT
qualification requirements), which shares will be paired and transferable only
as a single unit. In addition, each outstanding Paired Share which is not
tendered pursuant to the joint self tender offer of Cal Jockey and Bay Meadows
(as described below), will remain outstanding after the Merger and will, without
any action on the part of the stockholders of Cal Jockey and Bay Meadows,
represent the same number of paired shares of New Patriot REIT Common Stock and
New Patriot Operating Company Common Stock.
In connection with the Merger, Bay Meadows will form an operating partnership
(the "New Patriot Operating Partnership") into which Bay Meadows will contribute
its assets in exchange for limited partnership units of the New Patriot
Operating Partnership, and Cal Jockey will contribute certain of its assets to
the Patriot Partnership in exchange for limited partnership units of the Patriot
Partnership. Upon completion of the Merger and the transactions contemplated by
the Merger Agreement (the "Related Transactions"), substantially all of the
operations of New Patriot REIT and New Patriot Operating Company will be
conducted through their respective operating partnerships. The Board of
Directors of each of Patriot, Cal Jockey and Bay Meadows has approved the
October 31, 1996 Agreement, the Merger Agreement and the Related
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Transactions, including, without limitation, the Merger, the Subscription (as
hereinafter defined), the issuance of up to approximately 30,500,000 shares of
Cal Jockey Common Stock and 30,500,000 shares of Bay Meadows Common Stock, the
contribution of the assets of Bay Meadows to the New Patriot Operating
Partnership and the contribution of certain of the assets of Cal Jockey to the
Patriot Partnership.
THE SUBSCRIPTION. By operation of the Merger, each issued and outstanding share
of Patriot Common Stock will be converted into the right to receive 0.519
shares of New Patriot REIT Common Stock subject to certain REIT qualification
requirements described below. The Patriot Partnership will, in connection with
the Merger, subscribe (the "Subscription") for shares of Bay Meadows Common
Stock (which in connection with the Merger will become New Patriot Operating
Company Common Stock) (the "Subscribed Shares") in an amount equal to the number
of shares of New Patriot REIT Common Stock that will be issued to Patriot
stockholders in the Merger. Immediately prior to the Merger, the Patriot
Partnership will fund the Subscription and Patriot and the Patriot Partnership
will designate the Patriot stockholders as the recipients of the Subscribed
Shares, in compliance with the Pairing Agreement, on the basis of 0.519
Subscribed Shares for each share of Patriot Common Stock outstanding at the
Effective Time, subject to certain REIT qualification requirements described
below. The result of the Merger and the Subscription will be that Patriot
stockholders will have the right to receive 0.519 shares of New Patriot REIT
Common Stock and 0.519 shares of New Patriot Operating Company Common Stock,
subject to certain REIT qualification requirements described below, for each
share of Patriot Common Stock held by them at the Effective Time, which shares
of New Patriot REIT Common Stock and New Patriot Operating Company Common Stock
will be paired and transferable only as a single unit.
So that New Patriot REIT will continue to qualify and maintain REIT status, the
Amended and Restated Certificates of Incorporation of New Patriot REIT and New
Patriot Operating Company (the "Restated Charters") will provide that no person
or entity may own, or be deemed to own by virtue of certain attribution rules of
the Code, in excess of 9.8% (the "Ownership Limit") of the total outstanding
shares of any class or series of New Patriot REIT Common Stock and New Patriot
Operating Company Common Stock or preferred stock of New Patriot REIT or New
Patriot Operating Company. If any holder of Patriot Common Stock would receive
in the Merger and the Subscription a number of paired shares of New Patriot REIT
Common Stock and New Patriot Operating Company Common Stock which would cause
such holder or any other person or entity to own, or be deemed to own, paired
shares of New Patriot REIT Common Stock and New Patriot Operating Company Common
Stock in excess of the Ownership Limit, then such holder shall acquire no right
or interest in such number of paired shares of New Patriot REIT Common Stock and
New Patriot Operating Company Common Stock that would cause such holder or any
other person or entity to exceed the Ownership Limit, but such holder shall, in
lieu of receiving those paired shares which would cause the Ownership Limit to
be exceeded (the "Excess Paired Shares"), have the right to be paid by New
Patriot REIT an amount in cash for such Excess Paired Shares equal to the
product of the fair market value per Excess Paired Share multiplied by the
number of such Excess Paired Shares.
THE SELF TENDER OFFER. In connection with the Merger, Cal Jockey and Bay Meadows
will commence a joint self tender offer (the "Offer") to purchase for cash at a
combined price of $33.00 per Paired Share up to that percentage of the issued
and outstanding Paired Shares of Cal Jockey Common Stock and Bay Meadows Common
Stock such that upon consummation of the Merger the stockholders of Cal Jockey
and Bay Meadows prior to the Merger will own at least 1.0% of the paired shares
of New Patriot REIT Common Stock and New Patriot Operating Company Common Stock.
The obligation of Cal Jockey and Bay Meadows to accept for payment and pay for
their respective portion of the Paired Shares validly tendered and not withdrawn
pursuant to the Offer will be subject to the satisfaction or waiver of the
conditions to the Merger Agreement and the Merger becoming effective pursuant to
the General Corporation Law of the State of Delaware and the Virginia Stock
Corporation Act. The purpose of the Offer is to permit the holders of Paired
Shares of Cal Jockey Common Stock and Bay Meadows Common Stock to receive cash
in the amount of $33.00 per Paired Share if such holders do not wish to become
holders of the paired shares of New Patriot REIT Common Stock and New Patriot
Operating Company Common Stock after the Merger. On the fifth business day
following the date Cal Jockey and Bay Meadows publicly announce that all
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of the conditions to the Merger Agreement have been satisfied or waived, the
Offer will expire and the acceptance for payment of the validly tendered Paired
Shares shall be conditioned only upon the Merger becoming effective. In the
event the Merger Agreement is terminated in accordance with its terms, the Offer
will simultaneously terminate. On March 17, 1997, the closing price of the
Paired Shares on the AMEX was $46.00.
FINANCING THE OFFER. Patriot will provide Cal Jockey and Bay Meadows with the
funds necessary to satisfy their payment obligations under the Offer by
borrowing the necessary amounts under its financing sources.
CONDITIONS TO THE MERGER AND THE OFFER. Consummation of the Merger and the
Offer is subject to various conditions (which must be satisfied or waived),
including: (i) approval of a proposal to adopt the Merger Agreement and the
Related Transactions, by the holders of two-thirds of the outstanding shares of
Patriot Common Stock, by the holders of a majority of the outstanding shares of
Cal Jockey Common Stock and by the holders of a majority of the outstanding
shares of Bay Meadows Common Stock; (ii) approval of a proposal to amend and
restate the Certificate of Incorporation of Cal Jockey and the Bylaws of Cal
Jockey by the holders of a majority of the outstanding shares of Cal Jockey
Common Stock; and (iii) approval of a proposal to amend and restate the
Certificate of Incorporation of Bay Meadows and the Bylaws of Bay Meadows by
the holders of a majority of the outstanding shares of Bay Meadows Common
Stock. These proposals are currently expected to be voted on at special
meetings to be held by the parties in May or June 1997. Although each of the
aforementioned proposals will be voted on separately, because each of the
proposals is a condition to closing, if any of the proposals is not adopted,
the parties will not be required to consummate the Offer, the Merger or any of
the Related Transactions. Prior to consummation of the Merger, Cal Jockey will
distribute to its stockholders a dividend in the amount of $0.10 per Paired
Share plus the amount per Paired Share equal to the proceeds generated from the
sale of Cal Jockey's 100,000 shares of Santa Anita Realty Enterprises, Inc.
stock, less the original purchase price for this stock, divided by the number of
Paired Shares outstanding. There can be no assurances that the proposal
conditions or other conditions to consummation of the Merger will be satisfied
or waived.
SALE TO PAINEWEBBER. Patriot and PaineWebber Incorporated ("PaineWebber") have
agreed in principle that following the close of the Merger, an affiliate of
PaineWebber will purchase substantially all of the land of Cal Jockey,
including the land subject to the Franklin Agreement and Iacocca Agreement, for
a purchase price of $83 million. New Patriot REIT would retain ownership of the
improvements located on the land. Simultaneously with the consummation of such
purchase, the PaineWebber affiliate and New Patriot REIT would enter into a
ground lease covering that portion of land on which the Racecourse is situated
for a term of seven years. New Patriot REIT would then sublease the Racecourse
land and related improvements to New Patriot Operating Company.
CALIFORNIA JOCKEY CLUB
Cal Jockey is incorporated under the laws of the State of Delaware. Cal Jockey's
principal executive offices are located at 2600 South Delaware Street, P.O. Box
1117, San Mateo, California 94403.
PROPERTIES
Cal Jockey's principal asset is the Racecourse, a horse race track located on
approximately 175 acres of contiguous land in San Mateo, California. The
principal Racecourse facilities include:
- - the main one-mile dirt horse race track with six furlongs and 1-1/4 mile
chutes, inside of which is a seven furlong turf course;
- - the track's infield area, on which is situated a nine hole par three golf
course;
- - a main structure, which contains a grandstand, a clubhouse and a premier
seating and dining club (the "Turf Club"), all of which can accommodate
approximately 25,000 people for racing events;
- - a parking area, which can accommodate approximately 10,000 automobiles, a
portion of which is provided by an easement granted by the County of San
Mateo;
- - a barn and stable area situated on approximately 38 acres and containing
approximately 1,550 horse stalls; and
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- - a 5/8-mile training track oval situated on approximately 40 acres adjacent
to the barn and stable area (the "Training Track Area").
In addition, Cal Jockey owns an approximately 2 acre parcel in close proximity
to the Racecourse on which an indoor tennis club is located (the "Tennis Club
Parcel") and an approximately 1-1/2 acre parcel that abuts a street known as El
Camino Real and is separated from the 175 acre site by railroad tracks.
Historically, the entire 175 acre site has been used in conjunction with
Thoroughbred racing.
1983 REORGANIZATION
In 1983, the Companies' predecessor was reorganized into two companies, Cal
Jockey (which became the owner of the 175 acre site) and Bay Meadows (which
operates Bay Meadows Racecourse). Cal Jockey is engaged in managing its real
estate holdings, although it does not have active business operations. Cal
Jockey has historically generated revenue through the lease or sale of its
assets. Substantially all of Cal Jockey's revenue has been derived from its
lease with Bay Meadows. See "Lease of Racing Facility." Cal Jockey intends to
continue to meet the requirements for classification as a real estate investment
trust. So long as Cal Jockey qualifies as a real estate investment trust, it is
able to distribute its otherwise taxable income to its stockholders without
incurring a corporate level tax on that income.
POTENTIAL FOR ADDITIONAL INCOME
Dating back to the early 1970's, California Jockey Club (the predecessor to the
Companies before the 1983 reorganization) and subsequently both the Bay Meadows
and the Cal Jockey Boards of Directors concluded that the Training Track Area
could be developed for commercial purposes without adversely affecting Bay
Meadows' ability to carry on live Thoroughbred racing. The Cal Jockey Board of
Directors continues to believe that there is an opportunity to generate
additional income for stockholders by leasing or selling a portion of Cal
Jockey's 175 acres. The Cal Jockey Board of Directors believes that exploring
alternative means of generating stockholder income is prudent because of
negative trends in Thoroughbred racing. Evidence of these trends includes: (1)
the continued decline of on-track attendance at Bay Meadows, (2) the continued
decline in the quantity and quality of Thoroughbreds nationally and at Bay
Meadows, and (3) increased competition in the form of the new Seattle
Thoroughbred racing facility (Emerald Downs), other types of legalized gambling
and a widening array of professional and amateur sporting events. Accordingly,
Cal Jockey has engaged in the leasing and sale of a portion of its 175 acres.
PENDING SALES AND NEGOTIATIONS
In 1995, the Cal Jockey Board of Directors concluded that it would be in the
best interests of its stockholders to sell a substantial portion (approximately
32 acres) of the barn and stable area (the "Stable Area") and the Training
Track Area, rather than to develop them or continue to lease them to Bay
Meadows. The decisions reflected Cal Jockey's desire to seek out opportunities
for additional income. In addition, the Cal Jockey Board of Directors was
motivated by the substantial investment that Cal Jockey likely would be
required to make to renovate the existing Racecourse barns and to mitigate the
current water runoff problem associated with the continued operation of the
existing Racecourse barns (see "Water Treatment System") if the Stable Area is
not sold and continues to be used for the stabling of horses. Further, Cal
Jockey believes that the increased presence in San Mateo of the purchaser of
the Stable Area (Property Resources, Inc. and its affiliated entities) should
enhance the likelihood of obtaining the necessary Entitlements (as hereinafter
defined) for both transactions. See "The Entitlement Process." Accordingly, in
May 1995 and December 1995 Cal Jockey entered into agreements to sell the
Stable Area and the Training Track Area, respectively. See "Terms of the
Pending Sales of the Training Track and Stable Areas." By engaging in these
transactions, which it entered into prior to the Merger Agreement, Cal Jockey
seeks to achieve substantial liquidity which can be reinvested in income
generating properties, generating additional income for its stockholders. There
can be no assurances that these sales will be consummated.
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In July 1996, Cal Jockey entered into an Agreement of Purchase and Sale with
Public Storage, Inc. (the "Public Storage Agreement") to sell the Tennis Club
Parcel for approximately $2,200,000. Public Storage, Inc. intends to convert
the land into mini-storage units. The sale of the Tennis Club Parcel is subject
to various contingencies including approval by the City of San Mateo of a
rezoning of the property and, therefore, no assurance can be given that such
sale will be consummated.
In November 1996, Cal Jockey entered into a non-subordinated ground lease (the
"Borders Lease") with Borders, Inc. ("Borders"), a bookstore chain. The Borders
Lease covers 2.3 acres of land formerly used by Bay Meadows as a parking lot and
land adjacent to the parking lot. The San Mateo Planning Commission voted to
approve the development of a Borders bookstore on the site on October 14, 1996.
The initial term of the Borders Lease is for 20 years with a fixed net annual
rent of $278,500 for years 1 through 10, $362,050 for years 11 through 15 and
$416,350 for years 16 through 20. The Borders Lease has eight five-year renewal
options with an annual Consumer Price Index adjustment beginning in the fifth
option term.
Cal Jockey is about to enter into an agreement with the County of San Mateo,
(the "County"), which owns certain adjoining property commonly known as the San
Mateo Expo Center (the "Expo Center"). Under the agreement, the County will
relinquish certain easements (or a portion thereof) that encumber a portion of
the property being improved as a four lane public street, one of the primary
off-site improvements required as a condition to obtaining the Entitlements (as
defined below). In consideration of the County relinquishing these easement
rights, Cal Jockey shall cause a portion of the County's parking lot at the
Expo Center to be paved and shall relinquish a portion of Cal Jockey's parking
easement that encumbers the Expo Center property. Cal Jockey will also (i)
agree to allow Expo Center personnel to use the Delaware Street entrance to Bay
Meadows, as well as any entrance from Saratoga Drive into Bay Meadows to
accommodate Expo Center traffic and parking and (ii) accede to various County
requests regarding parking fees.
TERMS OF THE PENDING SALES OF THE TRAINING TRACK AND STABLE AREAS
STABLE AREA. On May 31, 1995, Cal Jockey entered into an Agreement of Purchase
and Sale with Property Resources, Inc. ("Property Resources"), a subsidiary of
Franklin Resources, Inc., (as amended, the "Franklin Agreement"), providing for
the sale of the Stable Area. Assuming all other conditions precedent are
satisfied or waived, escrow is to close 330 days following the date on which Cal
Jockey obtains the Entitlements (as defined below).
The Franklin Agreement contemplates the sale of the Stable Area for a purchase
price of approximately $21,000,000. In addition, Property Resources is obligated
to fund 44% of the cost of various off-site improvements required by the City of
San Mateo and the State of California in connection with the entitlements for
the development of the property (the "Entitlements"). Property Resources intends
to develop the Stable Area with an office complex for use by Franklin Resources,
Inc. and its affiliated entities.
The transaction is subject to a number of conditions precedent including that of
Cal Jockey obtaining from the City of San Mateo all necessary permits to develop
the office complex. To date, Property Resources has deposited $350,000 into an
escrow account as required by the Franklin Agreement. Future deposits are
required upon satisfaction of certain conditions. The escrowed amounts, plus
interest, are refundable if the conditions to closing by Property Resources are
not satisfied, and will serve as liquidated damages to Cal Jockey if such
conditions are satisfied but Property Resources fails to consummate the purchase
of the Stable Area.
TRAINING TRACK AREA. In December 1995, Cal Jockey entered into an Agreement of
Purchase and Sale (as amended, the "Iacocca Agreement") with Lee Iacocca &
Associates, Inc. ("Iacocca") providing for the sale of the Training Track Area.
In the Third Amendment, effective June 28, 1996, Iacocca assigned its rights
under the prior agreement to Airdial Company, LLC, a newly-formed limited
liability company ("Airdial"), the members of which include some of the
principals involved with Iacocca.
The development plan for the Training Track Area calls for the construction of
single-family and multi-family housing units, a superior first class hotel and
neighborhood retail uses. The Iacocca Agreement contemplates the sale of the
Training Track Area to Airdial for a purchase price of $30,750,000, subject to
adjustment if certain of the Entitlements are not obtained. In addition, Airdial
is obligated to fund 53% of the off-site improvements required by the City of
San Mateo and the State of California in connection with the Entitlements for
the development of the property. See "--Stable Area."
To date, Airdial has delivered to escrow an irrevocable standby letter of credit
in favor of Cal Jockey in the sum of $500,000. Within three days after Cal
Jockey obtains the Entitlements, Airdial is obligated to deliver to escrow a
second such letter of credit also in the amount of $500,000. These letters of
credit are released if the conditions to
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closing are not satisfied. The parties further agreed that $1,000,000 shall be
the amount of liquidated damages to Cal Jockey if all conditions to Airdial's
purchase are satisfied or waived, but Airdial fails to consummate the purchase
of the Training Track Area.
Closing of the transaction is subject to a number of conditions precedent
including Cal Jockey obtaining from the City of San Mateo the necessary
Entitlements to proceed with development plans, together with a development
agreement. If the conditions are satisfied or waived, it is contemplated that
escrow would close in Fall 1998.
THE ENTITLEMENT PROCESS. As noted above, Cal Jockey is charged with the
responsibility of obtaining the Entitlements for both the Stable Area and the
Training Track Area developments. The development plan being proposed covers
both developments as part of one plan. To assist in obtaining the Entitlements,
Cal Jockey has retained Calthorpe Associates, one of the premier land planning
firms in Northern California. Calthorpe Associates, together with a team of
other consultants, is developing a specific plan covering both developments. The
public comment period closed on November 25, 1996 and the final Environmental
Impact Report ("EIR") and specific plan has been prepared. It is anticipated
that the San Mateo Planning Commission and the City Council will vote on final
certification of the EIR and approval of the specific plan at a meeting
currently scheduled for late April 1997. However, there can be no assurances
that Cal Jockey will be successful in obtaining the necessary Entitlements to
avoid termination of the Franklin Agreement or the Iacocca Agreement.
COST OF ENTITLEMENT PROCESS. Through December 31, 1996, Cal Jockey has expended,
in connection with the Entitlement process, $2,242,000 for the services of
Calthorpe Associates, engineers, lawyers and other consultants. These amounts
have been capitalized and added to the basis in land.
POSSIBLE TAX CONSEQUENCES. Both the Franklin Agreement and the Iacocca Agreement
provide that the purchasers will cooperate with Cal Jockey in structuring the
transactions as tax-deferred exchanges. It is the present intention of Cal
Jockey's Board of Directors to seek income-generating properties that would meet
the investment criteria to be established for this purpose by a committee of the
Cal Jockey Board of Directors. To the extent the sales proceeds are used to
defray Cal Jockey's portion of the traffic circulation and other off-site
improvement costs or to construct new facilities on Cal Jockey's retained
property or are retained by Cal Jockey, the sales
-9-
<PAGE> 10
proceeds will not qualify for tax-deferred treatment and will not be available
for distribution to stockholders. However, it is Cal Jockey's present intention
to borrow the funds for such off-site improvements or new facilities, so that
all of the proceeds could qualify for tax-deferred treatment. There can be no
assurances that the transactions will qualify as tax-deferred exchanges or that
suitable properties for exchange will be located and the exchanges can be
effectuated within the relatively short time periods allowed by applicable IRS
regulations. If the sales of the Training Track Area or the Stable Area cannot
be qualified as tax-deferred exchanges, but the proceeds qualify for capital
gains treatment, Cal Jockey can elect to pass through the gain to its
stockholders who would be taxed at applicable capital gains rates. If the
proceeds are not distributed but they qualify for capital gains treatment, the
gain will be taxed to Cal Jockey at applicable capital gains rates. Cal Jockey's
basis in the land being sold under the Iacocca Agreement and the Franklin
Agreement is estimated at approximately $27,000 per acre.
FINANCING CAL JOCKEY'S SHARE OF OFF-SITE IMPROVEMENT COSTS
Based upon the current cost estimates, if neither the Franklin Agreement nor the
Iacocca Agreement is terminated, it appears that Cal Jockey's proportionate
share of the off-site improvement costs will be approximately $330,000. Due to
the inherent uncertainties involved in these estimates, there can be no
assurances that these cost estimates will not be further revised or such
revisions may not be significant. Cal Jockey intends to use internally generated
funds or to borrow whatever sums are required to defray these costs. However,
there is no assurance that Cal Jockey will have sufficient internally generated
funds or will be able to borrow these funds.
PLANNING FOR TRAINING AND STABLING
Recognizing that the proposed sale of the Training Track Area and the Stable
Area might require locating off-site areas to carry out these activities, Cal
Jockey explored, with Bay Meadows, numerous properties in a variety of nearby
locales. None of these jointly investigated properties has proved to be
appropriate.
An alternative under consideration is a proposal to construct 954 new stalls at
Bay Meadows, some of which might be recessed into the ground on the northern end
of the infield of the main track with the balance located in a portion of the
existing parking area just north of the existing grandstand. A tunnel under the
race tracks would have to be constructed in order to connect the stable areas.
This alternative presents a number of complex planning, financing and
construction issues. No approval of such a proposal has been given by Cal Jockey
or the City of San Mateo, and any approval by Cal Jockey would be contingent on
the results of economic, environmental and other feasibility studies. There can
be no assurances that the necessary permits or financing will be secured or
agreement with the City of San Mateo will be reached as necessary to implement
this alternative.
LEASE OF RACING FACILITY
Bay Meadows leases Bay Meadows Racecourse from Cal Jockey. Pursuant to the
terms of the lease agreement, which commenced on April 1, 1993 and expired on
March 31, 1996, Cal Jockey received the greater of (a) $3,000,000 annually or
(b) the sum of 1.5% of the on-track pari-mutuel handle when there were live
races at Bay Meadows, 1% of the pari-mutuel handle wagered at Northern
California satellite wagering facilities receiving races from Bay Meadows, 1%
of the pari-mutuel handle wagered at Bay Meadows when it was acting as a
satellite wagering facility for other host associations conducting racing in
Northern California, 25% of the net commissions from exported and improted
races from Southern California and interstate locations, and between 60% and
90% of various non-racing sublease rental income. In addition, Cal Jockey also
received a specified percentage of the annual pari-mutuel handle in excess of
$350,000,000.
The Master Lease Agreement pursuant to which Bay Meadows leased the Racecourse
Properties from Cal Jockey expired on March 31, 1996. Cal Jockey and Bay
Meadows have had discussions regarding the extension of the Master Lease
Agreement. The companies now have conflicting views concerning the existence of
any Master Lease Agreement extension. Cal Jockey believes that no lease exists
and that Bay Meadows is a tenant at will paying rent at the rate in the prior
Master Lease Agreement. Bay Meadows believes that the Master Lease Agreement has
been extended for an additional three years with a ten percent increase in rent
but otherwise substantially on the same terms as the previous lease. Bay Meadows
has, however, continued to pay rent at a rental rate equivalent to that
contained in the expired lease agreement through the first quarter of 1997. No
amounts of additional rent , in any, have been accrued at December 31, 1996. In
the event that the Companies reach a reconciliation on any lease extension,
retroactive changes in the rental amounts, in any, will be recorded in the
period that such reconciliation occurs. No assurances can be given concerning
the possible effects that the ultimate resolution of this matter will have on
the future operations of the Companies.
-10-
<PAGE> 11
SEASONAL VARIATIONS IN BUSINESS
Cal Jockey is subject to significant seasonal variations in revenues primarily
due to the fact that the lease revenues are affected by the seasonality of
Thoroughbred racing. See "Lease of Racing Facility" and "BAY MEADOWS OPERATING
COMPANY -- Bay Meadows' Horse Racing Season." The following table sets forth
certain financial information concerning Cal Jockey for the quarterly periods
indicated:
CALIFORNIA JOCKEY CLUB
<TABLE>
<CAPTION>
QUARTERS ENDED 1996
--------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS AND RACING DAYS)
<S> <C> <C> <C> <C>
Number of live racing days 63 0 25 27
Total revenues $ 2,338 $ 527 $ 1,340 $ 1,207
Costs and expenses 407 484 1,850(1) 3,887(1)
------- ------- ------- -------
Net income (loss) $ 1,931 $ 43 $ (510) $(2,680)
======= ======= ======= =======
Net income (loss) per share $ .34 $ .01 $ (.09) $(.47)
======= ======= ======= =======
</TABLE>
(1) Includes merger related costs of $3,504,000 and legal fees of $1,124,000.
<TABLE>
<CAPTION>
QUARTERS ENDED 1995
--------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS AND RACING DAYS)
<S> <C> <C> <C> <C>
Number of live racing days 20 10 27 51
Total revenues $ 903 $ 734 $1,482 $2,122
Costs and expenses 324 351 431 412
------ ------ ------ ------
Net income $ 579 $ 383 $1,051 $1,710
====== ====== ====== ======
Net income per share $ .10 $ .07 $ .18 $ .30
====== ====== ====== ======
</TABLE>
-11-
<PAGE> 12
<TABLE>
<CAPTION>
QUARTERS ENDED 1994
--------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS AND RACING DAYS)
<S> <C> <C> <C> <C>
Number of live racing days 21 0 24 68
Total revenues $1,083 $ 444 $1,300 $2,349
Costs and expenses 343 347 325 541
------ ------ ------ ------
Net income $ 740 $ 97 $ 975 $1,808
====== ====== ====== ======
Net income per share $ .13 $ .02 $ .17 $ .31
====== ====== ====== ======
</TABLE>
CAPITAL IMPROVEMENTS
In 1996, capital improvement expenditures were $271,000 which primarily
consisted of electrical, plumbing and flooring improvements related to offices
and dining areas.
WATER TREATMENT SYSTEM
The City of San Mateo (the "City"), along with the State of California, has
mandated that water runoff from Bay Meadows' barn area be disconnected from the
municipal sewer collection system. Cal Jockey is cooperating with the City and
State Regional Water Quality Control Board to resolve this situation. If the
Stable Area is sold as proposed to Property Resources, the problem with water
runoff as it presently exists is expected to be eliminated. If the Franklin
Agreement were terminated or the proposal for new barn construction failed to
be approved, the costs associated with resolving the matter are estimated to be
approximately $1,500,000.
EMPLOYEES
At December 31, 1996, Cal Jockey had three employees.
COMPETITION
Cal Jockey's financial condition and results of operations are affected by the
various competitive factors affecting Bay Meadows. See the information set forth
below under the caption "BAY MEADOWS OPERATING COMPANY -- Competition."
BAY MEADOWS OPERATING COMPANY
Bay Meadows is organized under the laws of the State of Delaware. Bay Meadows'
principal executive offices are located at Bay Meadows Racecourse, 2600 South
Delaware Street, P.O. Box 5050, San Mateo, California 94402.
Bay Meadows is a gaming and entertainment company currently engaged primarily in
the business of conducting and offering pari-mutuel wagering on Thoroughbred
racing at the Racecourse. Additionally, Bay Meadows acts as an off-track
satellite wagering facility, allowing patrons to wager on horse races at other
tracks even when live Thoroughbred racing is not being conducted at the
Racecourse. In addition to live Thoroughbred racing at the Racecourse, Bay
Meadows simulcasts its live horse races to as many as 31 sites in California and
450 sites in the remainder of the world. Also, Bay Meadows accepts simulcasts of
horse races conducted throughout the United States, Canada, Mexico, Australia
and Hong Kong. Bay Meadows generates revenues from commissions on pari-mutuel
wagering, admissions, parking, program sales and the food and beverage
concessions at the Racecourse.
-12-
<PAGE> 13
Substantially all of Bay Meadows' revenues are derived from the Thoroughbred
racing activities conducted at Bay Meadows. Annual revenues and net income have
historically fluctuated based to a large extent on the number of days during any
given year that live horse racing is conducted at the Racecourse. Selected
comparative figures for the last four calendar years are as follows:
<TABLE>
<CAPTION>
1996 1995 1994 1993 1992
(IN THOUSANDS, EXCEPT FOR HORSE RACING DAYS)
<S> <C> <C> <C> <C> <C>
Number of live horse racing days 115 108 113 104 111
Commissions (revenue derived from
pari-mutuel wagering) $ 15,880 $ 14,916 $ 14,871 $ 12,690 $ 14,128
Total revenues of Bay Meadows $ 53,472 $ 50,256 $ 51,187 $ 44,642 $ 48,537
Bay Meadows rent paid to Cal Jockey $ 4,918 $ 4,762 $ 4,777 $ 3,607 $ 4,229
Income of Bay Meadows before
income tax provision $ 715 $ 936 $ 1,140 $ 174 $ (792)
</TABLE>
Bay Meadows also generates revenues from subletting the racetrack facilities to
the San Mateo County Fair for horse racing events (historically, a two week
horse race meet), as well as to trade shows and others for various events and
from operating an indoor tennis club near the racetrack facilities and a nine
hole golf course located on the infield of the racetrack. See "Effects of Other
Cal Jockey Transactions."
BAY MEADOWS' HORSE RACING SEASON
California law permits a racing association in the Northern California Racing
Zone (such as Bay Meadows) to conduct no more than 22 weeks of live horse
racing each year. In calendar years 1996 and 1995, Bay Meadows conducted 115
and 108 live horse racing days, respectively. The CHRB has granted Bay Meadows
102 racing days for the calendar year 1997 horse racing season, allocated
during the periods from early January through late March and late August
through mid-November. However, until relatively recently, Bay Meadows' horse
racing season historically ran from late August through late January. In such
years the number of horse racing days in a calendar year included horse racing
days for two different horse racing seasons.
The following table sets forth information relating to live horse racing days
and the attendance and pari-mutuel handle for the calendar years indicated.
-13-
<PAGE> 14
<TABLE>
<CAPTION>
CALENDAR YEARS
----------------------------------------------------------------------------
1996 1995 1994 1993 1992
(IN THOUSANDS, EXCEPT FOR HORSE RACING DAYS)
<S> <C> <C> <C> <C> <C>
Number of live horse racing days 115 108(1) 113 104 111
Total on-track attendance 511 489 536 527 588
Average daily on-track attendance 4.4 4.5 4.7 5.1 5.3
Total intertrack attendance 595 568 652 708 777
Average daily intertrack attendance 5.2 5.3 5.8 6.8 7.0
Total on-track and intertrack attendance 1,106 1,057 1,188 1,236 1,365
Average daily on-track and intertrack attendance 9.6 9.8 10.5 11.9 12.3
Live - on-track pari-mutuel handle $ 60,159 $ 61,261(1) $ 75,889 $ 90,126 $ 112,664
Live - N. CA network pari-mutuel handle $ 69,188 $ 66,720(1) $ 82,482 $ 109,347 $ 125,099
Live - exported pari-mutuel handle $ 253,323 $ 214,686(1) $ 163,452(2) $ 42,364(2) $ 31,021
Live - imported pari-mutuel handle $ 122,942 $ 115,293(1) $ 100,218 $ 24,479 $ 10,256
Non-merged handle $ 8,267 $ 6,330(1) $ 7,170 $ 8,740 $ 5,679
Total pari-mutuel handle $ 513,879 $ 464,290 $ 429,211 $ 275,056 $ 284,719
</TABLE>
(1) Does not include two racing days which were rained out in January 1995.
(2) The increase between calendar years 1993 and 1994 was due in large part
to a change in California law which permitted wagers on Bay Meadows'
horse races to be places at off-track locations in Southern California.
PARI-MUTUEL REVENUES
All wagering at Bay Meadows is pari-mutuel, meaning that individuals wager
against each other and not against the operator of the facility. Bay Meadows, as
the horse race track operator, has no interest in the results of any horse race.
Bay Meadows places the wagers into a pool and deducts both its commission and a
variety of statutory deductions from the wagers, the amount of which is fixed by
the State of California.
In California, other horse racing associations, certain fairs and certain
Indian Reservations operate as off-track wagering facilities. Off-track
wagering on horse races conducted at Bay Meadows is permitted at 31 locations
in California, 14 of which comprise the Northern California Off-Track Network
("Live-N. CA Network").
Legislation has been enacted in certain states permitting the transmission of
pari-mutuel wagers across state lines. This format permits patrons wagering in
those states on horse races at Bay Meadows to participate in the same
pari-mutuel pool as Bay Meadows patrons and patrons at other California
satellite locations. Off-track wagering on Bay Meadows' live horse races is
conducted in as many as 31 sites in California and up to 450 sites throughout
the rest of the world.
During Bay Meadows' live meets, pari-mutuel revenues and respective commission
rates are derived from four sources: (i) wagers made at Bay Meadows on horse
races at Bay Meadows ("Live-On-Track") (5.4%-6.9%); (ii) wagers made throughout
the Live-N. CA Network on horse races at Bay Meadows (3.3%-4.9%); (iii) wagers
made throughout locations in Southern California and at out-of-state locations
on horse races conducted at Bay Meadows ("Live-Export") (1.3%-1.5%); and (iv)
wagers made at Bay Meadows and throughout the Live-N. CA Network on horse races
conducted in Southern California and at out-of-state locations ("Live-Import")
(2.6%-5.2%). Additionally, during its live horse race meet, Bay Meadows
receives fees from certain out-of-state locations that accept wagers on Bay
Meadows' horse races which are not included in Bay Meadows' pari-mutuel pool
("Nonmerged Fees"). During the remainder of the year when Bay Meadows is not
conducting live horse racing, Bay Meadows receives satellite fees generated
through its operation as an off-track wagering facility ("Satellite Fees").
-14-
<PAGE> 15
The following table sets forth Bay Meadows' revenue derived from pari-mutuel
handle (net of statutory payments) for the calendar years indicated:
<TABLE>
<CAPTION>
CALENDAR YEARS
----------------------------------------------------------------------
1996 1995 1994 1993 1992
(IN THOUSANDS, EXCEPT FOR HORSE RACING DAYS)
<S> <C> <C> <C> <C> <C>
Live race days 115 108 113 104 111
Revenue:
Live - On-Track $ 3,921 $ 4,020 $ 5,002 $ 5,956 $ 7,426
Live - N. CA Network $ 3,061 $ 2,911 $ 3,223 $ 4,751 $ 5,417
Live - Exported $ 2,974 $ 2,441 $ 1,950 $ 859 $ 498
Live - Imported $ 5,751 $ 5,299 $ 4,407 $ 1,072 $ 293
Nonmerged Fees $ 287 $ 77 $ 101 $ 52 $ 51
Satellite Fees $ 1,694 $ 1,702 $ 1,488 $ 1,448 $ 1,586
</TABLE>
SEASONAL VARIATIONS IN BUSINESS
Bay Meadows' revenues are subject to seasonal variations as a result of the
allocation of racing days by the CHRB. Historically, the Bay Meadows racing meet
commenced in August each year and ended the following January. However, the 1995
horse racing season was comprised of three smaller meets held during the months
of March-April, August-November and December 1995-January 1996. The 1996 horse
racing season was comprised of two smaller meets held during late January
through late March and late August through early November. For 1997, Bay
Meadows' season has been divided into two meets, one from late January through
late March and the second from late August through mid-November. See
"--Regulation." Seasonal variations are reflected in the financial information
for Bay Meadows Operating Company and its subsidiary, Bay Meadows Catering, set
forth below for the quarterly periods indicated.
BAY MEADOWS OPERATING COMPANY AND SUBSIDIARY
<TABLE>
<CAPTION>
QUARTERS ENDED 1996
----------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
(IN THOUSANDS, EXCEPT PER SHARE DATA AND RACING DAYS)
<S> <C> <C> <C> <C>
Number of live racing days 63 0 25 27
Total revenues $ 26,692 $ 2,636 $ 12,080 $ 12,064
Costs and expenses $ 23,557 $ 3,946 $ 12,270 $ 12,984
Net income (loss) $ 1,877 $ (782) $ (98) $ (542)
Net income (loss) per share $ .33 $ (.14) $ (.02) $ (.09)
</TABLE>
-15-
<PAGE> 16
<TABLE>
<CAPTION>
QUARTERS ENDED 1995
-----------------------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
(IN THOUSANDS, EXCEPT PER SHARE DATA AND RACING DAYS)
<S> <C> <C> <C> <C>
Number of live racing days 20 10 27 51
Total revenues $ 9,587 $ 7,238 $ 13,058 $ 20,373
Costs and expenses $ 9,461 $ 7,465 $ 13,022 $ 19,372
Net income (loss) $ 68 $ (123) $ 20 $ 512
Net income (loss) per share $ .01 $ .02 $ .01 $ .09
</TABLE>
<TABLE>
<CAPTION>
QUARTERS ENDED 1994
----------------------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
(IN THOUSANDS, EXCEPT PER SHARE DATA AND RACING DAYS)
<S> <C> <C> <C> <C>
Number of live racing race days 21 0 24 68
Total revenues $ 9,979 $ 2,421 $ 11,716 $ 27,071
Costs and expenses $ 9,774 $ 3,549 $ 11,621 $ 25,103
Net income (loss) $ 205 $ (1,128) $ 443 $ 1,072
Net income (loss) per share $ .04 $ (.20) $ .08 $ .18
</TABLE>
REGULATION
Horse racing is highly regulated in California. As a result, Bay Meadows faces
an increasing number of limitations on how it conducts its Thoroughbred racing
operations. The scheduling, length and conduct of meets and the distribution of
the pari-mutuel purse is determined by California Law and the CHRB. The CHRB is
charged with regulating horse racing and wagering at horse racing meets in
California. The CHRB is also charged with the responsibility of licensing horse
racing associations on an annual basis to conduct horse racing meets.
To conduct a Thoroughbred racing meet and to act as a satellite facility, Bay
Meadows is required to secure, on an annual basis, a license from the CHRB.
Although Bay Meadows has been granted an annual license each year since 1934,
including one for the 1997 horse racing season, no assurance can be given that
Bay Meadows will continue to receive this annual license.
As a condition of the issuance of the annual license, California law requires
that a certain number of horse racing days be conducted as charity days. The net
proceeds from these charity days, up to a maximum amount of 0.2% of on-track
handle on live horse races for the meet, are distributed to beneficiaries
through a nonprofit organization approved by the CHRB.
The CHRB is also responsible for allocating horse racing days to horse racing
associations; Bay Meadows can only conduct live Thoroughbred horse racing on
days allocated to it by the CHRB. No assurance can be given that competition for
horse racing days will not affect the allocation of horse racing days to Bay
Meadows in the future. See "--Competition."
Following consummation of the Merger, New Patriot Operating Company will
have to file an amendment to Bay Meadows' CHRB 1997 application for its 1997
license reflecting the corporate restructuring that will occur in the Merger.
In informal discussions,
-16-
<PAGE> 17
representatives of the CHRB have indicated that it would not object to such an
amendment to the 1997 application. No assurances can be given, however, that the
CHRB will not object to such an amendment when it is filed.
LEGISLATION
Because Thoroughbred racing is highly regulated by the State of California, the
enactment of new legislation can impact Bay Meadows in both positive and
negative ways. In 1996, a new law was passed by the California Legislature
reducing the effective license fee payable by Bay Meadows from 3.83% to 3.52%
commencing January 1, 1997.
Because of the myriad legislative bills relating to gaming and horse racing
introduced each year in the California Legislature, it is impossible for Bay
Meadows to identify which will receive serious consideration, much less be
enacted. Accordingly, Bay Meadows is unable to predict the impact which future
legislation may have on its operations.
There is, however, considerable concern in the horse racing industry about
potential legislation which may result in the expansion of gaming, particularly
gambling on Indian reservations, and which would likely would negatively impact
horse racing.
COMPETITION
Horse racing dates are allocated annually by the CHRB and, to the extent
possible, are allocated in a manner to avoid overlaps in Northern California.
Historically, the dates allocated to Bay Meadows have not overlapped with those
of Golden Gate Fields, the only other horse racing association in the San
Francisco Bay Area. However, Bay Meadows has been allocated dates, from time to
time, that have resulted in it conducting racing concurrently in Northern
California with the California State Fair in Sacramento, California and the Big
Fresno Fair in Fresno, California. Over the last two years, competition for
horse racing dates has increased among Bay Meadows, Golden Gate Fields and some
county fairs. It can no longer be assumed that the CHRB will grant a racetrack
its historic racing dates or that dates granted will not overlap with those
granted to other racing on operations in Northern California.
Although Bay Meadows has little direct competition from other tracks in the San
Francisco Bay Area when Bay Meadows is conducting live horse racing, competition
is developing through businesses in various states or foreign countries
accepting wagers on races at Bay Meadows placed by telephone or via the
Internet. Bay Meadows is not able to estimate the magnitude of telephone or
Internet wagering or the impact such wagering will have on its results of
operations or financial condition.
To some extent, Bay Meadows also competes for patrons with off-track wagering
facilities in Northern California. Because of distance and traffic congestion, a
patron might find wagering at an off-track wagering facility to be more
convenient.
The San Francisco Bay Area annually has numerous professional and amateur
sporting events and other entertainment attractions which compete with Bay
Meadows for the sports and entertainment dollar. Bay Meadows also competes with
other forms of legalized gambling, particularly Indian gaming, and other forms
such as the California State lottery and local card clubs. It is very difficult,
however, to evaluate the competitive impact of these other forms of
entertainment and gambling other than to say they are significant.
-17-
<PAGE> 18
During the last few years, racetracks throughout the United States have
experienced a decline in their horse population. As a result of this decline,
there has been a reduction in the size of the fields competing in horse races.
Generally, the amount wagered on a given race is impacted by the size of the
field. Bay Meadows competes for horses with other tracks throughout the United
States and, particularly, with tracks in Southern California, Arizona and
Washington.
PROPOSED SALES OF STABLE AREA AND TRAINING TRACK AREA
As discussed above (see "--CALIFORNIA JOCKEY CLUB--Pending Sales and
Negotiations"), Cal Jockey has entered into an agreement to sell substantially
all of the Stable Area where most of the horses racing at Bay Meadows are
stabled during Bay Meadows' meets. Cal Jockey has also entered into an agreement
to sell the adjoining Training Track Area, on which a 5/8 mile training track is
now situated. Since the sales of the Stable Area and the Training Track Area
were announced, Bay Meadows and Cal Jockey have been investigating and
considering various alternative stabling arrangements.(See "--CALIFORNIA JOCKEY
CLUB--Planning for Training and Stabling.")
Bay Meadows has publicly proposed a plan for the construction of 954 stalls on
the property being retained by Cal Jockey. Patriot, which has agreed to a
business combination agreement with Cal Jockey and Bay Meadows (see "--The
Patriot Transaction") has indicated its support for such plan. Property
Resources, the purchaser of the Stable Area has indicated its support for such
plan, has agreed to amend the Franklin Agreement as part of the implementation
of the plan and has indicated its intent to permit Bay Meadows to continue to
use 1,100 existing stalls in the Stable Area through March 1998. No approval to
this plan has been given by Cal Jockey, with any approval contingent on the
results of economic, environmental and other feasibility studies. Implementation
of the plan is subject to a number of conditions including the arrangement of
financing acceptable to Patriot and the receipt of the requisite governmental
approvals.
EFFECTS OF OTHER CAL JOCKEY TRANSACTIONS
Cal Jockey recently entered an agreement with Borders for the long-term ground
lease of a parking lot adjacent to the Bay Meadows Racecourse. As a result of
this transaction, Bay Meadows has lost a number of convenient parking spaces for
its patrons and an important pedestrian access to its facility. However, there
are an excess number of parking spaces available at Bay Meadows, the remaining
spaces may not be as convenient for certain patrons and there can be no
assurance that the parking revenue currently being generated will not be
adversely affected.
Bay Meadows manages and operates the Sundown Tennis Club, an indoor tennis
facility on land in close proximity to the Racecourse. On July 18, 1996, Cal
Jockey entered an agreement to sell the Tennis Club Parcel.(See "--CALIFORNIA
JOCKEY CLUB--Pending Sales and Negotiations.") For the twelve months ended
December 31, 1996, Bay Meadows' operating income associated with the Sundown
Tennis facility was $70,000.
Bay Meadows also manages and operates a nine-hole golf course in the infield of
the racetrack. The recent opening of a golf facility in close proximity to Bay
Meadows has had an adverse impact on the results of operations of the Bay
Meadows' golf course. Further, Bay Meadows' golf course will be eliminated if
new stables are built as planned. For the twelve months ended December 31, 1996,
Bay Meadows' operating income associated with the golf course was $95,000.
CONCESSIONAIRE
Bay Meadows Catering ("Catering"), a wholly owned subsidiary of Bay Meadows,
provides food and beverage services at the Turf Club and at refreshment stands
located in the Grandstand and Clubhouse areas of the racetrack facility.
Catering also enters into contracts with racing associations and groups which
sublease Bay Meadows Racecourse to provide such food and beverage service.
-18-
<PAGE> 19
CAPITAL IMPROVEMENTS
For the twelve month period ending December 31, 1996, Bay Meadows expended
$1,285,000 in capital improvements consisting primarily of costs relating to
construction of a television studio, control room and associated equipment,
enterprise networking system and a POS system.
EMPLOYEES
Bay Meadows employs approximately 200 employees throughout the year and an
additional 350-550 seasonal employees on horse racing days. Substantially all of
Bay Meadows' employees, other than the administrative staff, are members of
various unions. Bay Meadows believes it has good relations with its employees
and their unions.
ITEM 2. PROPERTIES
Information with respect to the property owned by Cal Jockey and Bay Meadows is
set forth under Item 1 - "Business" and incorporated herein by reference.
ITEM 3. LEGAL PROCEEDINGS
Bay Meadows and Cal Jockey are, in the ordinary course of business, involved in
litigation and other legal matters. In addition, Bay Meadows and/or Cal Jockey
is a party to the following legal proceedings.
Volkman et al. v. California Jockey Club et al.
On or about July 3, 1996, plaintiff stockholders filed a petition for writ of
mandate in San Mateo County Superior Court against Cal Jockey and its directors,
seeking an order directing Cal Jockey to hold its annual meeting of stockholders
earlier than the date set by Cal Jockey. A judgment so directing Cal Jockey was
entered, and the meeting was held on August 30, 1996. Cal Jockey does not intend
to appeal, and has settled the matter in its entirety with payment of certain
fees and expenses incurred by the plaintiffs.
California Jockey Club v. Bay Meadows Operating Company et al.
On August 13, 1996, Cal Jockey filed a complaint in United States District Court
for the Northern California District of California against Bay Meadows, its
President (F. Jack Liebau), and the members of the California Jockey Club
Shareholders Committee, a group of stockholders supporting a slate of nominees
to the Cal Jockey Board of Directors in opposition to those nominated by Cal
Jockey's management. The complaint alleged violations of federal securities law
by reason of defendants' failure to make required filings and disclosures in
connection with the Cal Jockey proxy contest. The complaint sought to compel
defendants to make the required disclosures and to enjoin them from soliciting
or voting proxies. On November 7, 1996, Cal Jockey, with the consent of Bay
Meadows, requested that the case be placed on inactive status through an order
of administrative closure and stay. Bay Meadows believes this suit is without
merit.
Bay Meadows Foundation v. Bay Meadows Operating Company and California Jockey
Club
On December 29, 1995, the Bay Meadows Foundation filed a complaint in San Mateo
Superior Court against Cal Jockey and Bay Meadows. The complaint alleges failure
to properly calculate and pay charity proceeds as required by law and includes
causes of action for violation of statute, breach of fiduciary duty and
imposition of a constructive trust and accounting. Specifically, the complaint
alleges that Bay Meadows improperly deducted rent payments made to its
affiliate, Cal Jockey, from the charity net proceeds. The complaint also seeks
punitive damages and attorney's fees. On March 25, 1996, Cal Jockey and Bay
Meadows filed their answer to the complaint. The answer denies the allegations
of the complaint and asserts
-19-
<PAGE> 20
affirmative defenses against the Bay Meadows Foundation. Specifically, Cal
Jockey and Bay Meadows maintain that the deduction of rent payments was lawful
and consistent with both the administrative determination made by the California
Horse Racing Board ("CHRB") in 1991 that such rent payments were deductible
under the financial reporting instructions subsequently promulgated by the CHRB.
The parties are currently engaged in civil discovery and Cal Jockey and Bay
Meadows plan to vigorously defend themselves against the lawsuit.
Pati Misskelley v. Bay Meadows Operating Company and Frank Trigeiro et al.
On June 4, 1996, the plaintiff, a former accounts receivable clerk, filed suit
against Bay Meadows and certain of its employees in the United States District
Court for the Northern District of California, alleging gender and age
discrimination. The plaintiff was terminated by Bay Meadows after her position
was eliminated as part of a restructuring of the accounting department. In her
suit, the plaintiff seeks unspecified damages. Bay Meadows believes that this
suit is without merit.
Property Resources, Inc. v. Bay Meadows, Operating Company, et al.
On August 16, 1996, Property Resources, Inc. ("PRI"), a subsidiary of Franklin
Fund, Inc., filed suit in the San Mateo County Superior Court against Bay
Meadows, its directors and others, for intentional interference with PRI's
contract with Cal Jockey for the sale of real property on which Bay Meadows'
stables are located. PRI sought a temporary restraining order which would have
prevented Bay Meadows and its management from communicating with its
stockholders, Cal Jockey, San Mateo city officials or the press about a wide
range of topics, including on-site stabling of horses at Bay Meadows. On August
15, 1996, the Court denied PRI's request for the temporary restraining order. On
November 7, 1996, the San Mateo Superior Court dismissed PRI's remaining claims
with leave to amend. The parties subsequently settled this matter with the
agreement that the parties would pay their respective legal fees and costs, and
the lawsuit was subsequently dismissed on February 10, 1997.
Pauline Madera v. Bay Meadows Operating Company and Morris Webb
On December 20, 1995, Ms. Madera, an employee of Bay Meadows Catering filed a
complaint in San Mateo County Superior Court seeking unspecified damages for
sexual battery, intentional infliction of emotional distress, negligent
infliction of emotional distress and sexual harassment. Neither Ms. Madera nor
Mr. Webb were employed in a management or supervisory position by Bay Meadows.
Bay Meadows has settled this matter.
Management of the Companies believe that the pending legal actions against
either of the Companies will not have a material impact on the separate or
combined financial statements of the Companies, taken as a whole.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable.
PART II
ITEM 5. MARKET FOR REGISTRANTS' COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The following table sets forth, for the fiscal quarters indicated, the high
and low sales prices for the Paired Common Stock, and the cash dividends paid
by Cal Jockey on the CJC Common Stock for the periods indicated. The prices are
as reported by the AMEX.
<TABLE>
<CAPTION>
Cash Dividends
Per Share
High Low Paid by Cal Jockey
---- --- ------------------
<S> <C> <C> <C>
Fiscal 1996 Quarter Ended:
March 31, 1996 14-3/4 14-5/8
June 30, 1996 17-3/8 17-1/8 $.40
September 30, 1996 20-1/8 19-3/4
December 31, 1996 40-7/8 40-3/8
</TABLE>
-20-
<PAGE> 21
<TABLE>
<CAPTION>
Cash Dividends
Per Share
High Low Paid by Cal Jockey
---- --- ------------------
<S> <C> <C> <C>
Fiscal 1995 Quarter Ended:
March 31, 1995 17-1/4 13-3/4
June 30, 1995 16-3/4 14-1/2 $.25
September 30, 1995 16-3/8 15-5/8
December 31, 1995 16-3/8 14 $.40
</TABLE>
As of March 17, 1997, there were approximately 2,640 stockholders of record of
the Cal Jockey Common Stock and approximately 2,640 stockholders of record of
the Bay Meadows Common Stock. On March 17, 1997, the closing price of the
Paired common stock as reported on AMEX was $46.00.
Cal Jockey has paid, and intends to continue to pay, regular semi-annual
dividends (except for fourth quarter 1996) based on management's estimate of
earnings for the entire calendar year and, if necessary, to pay special
dividends after the close of the year to effect distribution of at least 95% of
its taxable net income (other than net capital gains), so as to continue to
qualify as a real estate investment trust.
Bay Meadows has not paid cash dividends on the Bay Meadows Common Stock since
its formation and does not expect to pay cash dividends in the foreseeable
future.
ITEM 6. SELECTED FINANCIAL DATA
The selected financial data set forth below should be read in conjunction with
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," the financial statements and related notes thereto.
COMBINED SELECTED FINANCIAL DATA
CALIFORNIA JOCKEY CLUB AND
BAY MEADOWS OPERATING COMPANY AND SUBSIDIARY
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------------------------------------------------------
1996 1995 1994 1993 1992
(IN THOUSANDS, EXCEPT PER SHARE DATA AND RACING DAYS)
<S> <C> <C> <C> <C> <C>
Number of live racing days 115 108 113 104 111
Operating Data:
Revenues $ 53,932 $ 50,709 $ 51,575 $ 44,993 $ 48,985
Net income (loss) (791)(2) 4,200 4,212 1,153(1) 2,150
Net income (loss) per share (.13)(2) .73 .73 .20(1) .37
Cash dividends per share .40 .65 .60 .30 .60
Balance Sheet Data:
Total assets $ 27,676 $ 37,935 $ 36,786 $ 44,993 $ 33,999
</TABLE>
- ----------
(1) Includes a charge of $1,400,000 recorded as a result of litigation
settlement.
(2) Includes merger related costs of $3,995,000 and legal fees of $1,549,000.
-21-
<PAGE> 22
SELECTED FINANCIAL DATA
CALIFORNIA JOCKEY CLUB
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------------------------------------------------------
1996 1995 1994 1993 1992
(IN THOUSANDS, EXCEPT PER SHARE DATA AND RACING DAYS)
<S> <C> <C> <C> <C> <C>
Number of live racing days 115 108 113 104 111
Operating Data:
Revenues $ 5,412 $ 5,241 $ 5,176 $ 3,984 $ 4,736
Net income (loss) (1,216)(2) 3,723 3,620 980 (1) 2,854
Net income (loss) per share (.21)(2) .65 .63 .17 (1) .49
Cash dividends per share .40 .65 .60 .30 .60
Balance Sheet Data:
Total assets 23,374 $ 22,147 $ 22,129 $ 21,914 $ 23,950
</TABLE>
- ----------
(1) Includes a charge of $1,400,000 recorded as a result of litigation
settlement.
(2) Includes merger related costs of $3,504,000 and legal fees of
$1,124,000.
CONSOLIDATED SELECTED FINANCIAL DATA
BAY MEADOWS OPERATING COMPANY AND SUBSIDIARY
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------------------------------------------------------
1996 1995 1994 1993 1992
(IN THOUSANDS, EXCEPT PER SHARE DATA AND RACING DAYS)
<S> <C> <C> <C> <C> <C>
Number of live racing days 115 108 113 104 111
Operating Data:
Revenues $ 53,472 $ 50,256 $ 51,187 $ 44,642 $ 48,537
Net income 455 477 592 173 (692)
Net income per share .08 .08 .10 .03 (.12)
Cash dividends per share -- -- -- -- --
Balance Sheet Data:
Total assets $ 6,634 $ 16,357 $ 16,648 $ 10,821 $ 11,263
</TABLE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion and analysis provides information that management
believes is relevant to an assessment and understanding of the Companies'
financial condition and results of operations. The discussion should be read in
connection with Item 8 - " Financial Statements and Supplementary Data."
The information set forth in "Management's Discussion and Analysis of Financial
Condition and Results of Operations" below includes "forward-looking statements"
within the meaning of Section 21E of the Securities and Exchange Act of 1934, as
amended, and is subject to the safe harbor created by that section. Readers are
cautioned not to place undue reliance on these forward-looking statements and to
note that they speak only as of the date hereof. Factors that realistically
could cause actual results to differ materially from those in the
forward-looking statements are set forth below and include the following:
nonconsummation of the Merger Agreement, the Franklin Agreement or the Iacocca
Agreement, failure to secure the necessary governmental approvals to construct
new stalls at the Racecourse, as well as the risk factors set forth in this Item
7.
-22-
<PAGE> 23
GENERAL
The results of operations of Cal Jockey and Bay Meadows are dependent upon the
operations of Bay Meadows Racecourse as a live Thoroughbred racing facility and
as a simulcast wagering facility for other racing associations. The operations
of this facility are the primary source of the Companies' respective revenues
and net income. Cal Jockey's income is almost entirely dependent upon collection
of rent from Bay Meadows pursuant to a master lease.
Bay Meadows' income is primarily dependent upon the success of the Thoroughbred
racing meet it conducts. The total number of Bay Meadows' racing days has
increased from 81 days in 1985 to a high of 115 days in 1996. Bay Meadows plans
to conduct 104 racing days in the 1997 calendar year. Since the introduction of
intertrack wagering in October 1985, the components of Bay Meadows' revenues
have continued to change. Starting with the 1990-1991 racing meet, several
interstate locations were included in Bay Meadows' pari-mutuel pools.
Additionally, the expansion of intrastate wagering has positively impacted the
handle on exported races. While all of these factors have contributed to an
increase in the total pari-mutuel handle from $192,378,000 in 1985 to
$513,880,000 in 1996, the profitability of each of the components of the handle
is different. In 1996, the total pari-mutuel handle was comprised of (i) wagers
made at Bay Meadows on horse races at Bay Meadows (11.7%), (ii) wagers made
throughout the Northern California Off-track Network on horse races at Bay
Meadows (13.5%), (iii) wagers made throughout locations in Southern California
and at out-of-state locations on horse races conducted at Bay Meadows (50.9%);
and (iv) wagers made at Bay Meadows and throughout the Northern California
Off-Track Network on horse races conducted in Southern California and at
out-of-state locations (23.9%). (See "BAY MEADOWS OPERATING COMPANY--Pari-Mutuel
Revenues").
In addition, the related decline in daily average on-track attendance from
approximately 8,700 in 1985 to approximately 4,400 in 1996 has had a material
impact on non-wagering revenue sources (food, beverage and gift shop sales,
admissions, parking fees and program sales). The daily average on-track
attendance for 1996 decreased approximately 2% compared to the prior year.
Under the terms of the master lease agreement, Bay Meadows' percentage rental
payments to Cal Jockey are based on the amount of pari-mutuel handle derived
from wagers on Bay Meadows' live Thoroughbred racing meet and wagers placed at
Bay Meadows Racecourse when it serves as a simulcast wagering facility for other
racing associations (See Item 1 - "CALIFORNIA JOCKEY CLUB -- Lease of Racing
Facilities"). Bay Meadows also collects additional revenue by subleasing the
racecourse facilities to the San Mateo County Fair and others.
On October 31, 1996, Cal Jockey and Bay Meadows entered into a business
combination agreement with Patriot American Hospitality, Inc. ("Patriot"). The
agreement was approved unanimously by the Boards of Patriot, Cal Jockey and Bay
Meadows and is subject to approval by the shareholders of each of Patriot, Cal
Jockey and Bay Meadows. The parties, together with Patriot American Hospitality
Parnership, L.P., a limited partnership (the "Patriot Partnership"), thereafter
entered into an Agreement and Plan of Merger, dated as of February 24, 1997
(the "Merger Agreement"), which by its terms supersedes the October 31, 1996
Agreement and more fully details the transactions to be consummated by the
parties.
Pursuant to the Merger Agreement, Patriot will merge with and into Cal Jockey,
with Cal Jockey being the surviving company. In connection with the Merger, Cal
Jockey's name will be changed to "Patriot American Hospitality, Inc." ("New
Patriot REIT") and Bay Meadows' name will be changed to "Patriot American
Hospitality Operating Company" ("New Patriot Operating Company"). The
shareholders of Cal Jockey and Bay Meadows will have the option either to
tender each of their paired shares for $33.00 in cash or to retain their paired
shares, which will then remain outstanding after the Merger and will represent
the same number of paired shares of New Patriot REIT common stock and New
Patriot Operating Company common stock. (See Item 1 --"BUSINESS--THE PATRIOT
TRANSACTION").
Patriot loaned $2,900,000 to Cal Jockey for payment of the breakup fee due upon
termination of the prior merger agreement with Hudson Bay Partners, LP ("Hudson
Bay"). Patriot will be entitled to receive a $5,000,000 termination fee, and
the repayment of the $2,900,000 loan for the Hudson Bay termination fee in the
event the Cal Jockey and Bay Meadows boards of directors receive a higher
unsolicited offer which the accept. All merger related costs have been expensed
as incurred. Such amounts include the breakup fee, legal and accounting costs
related to the transaction.
CALIFORNIA JOCKEY CLUB
RESULTS OF OPERATIONS: YEAR ENDED DECEMBER 31, 1996 COMPARED WITH YEAR ENDED
DECEMBER 31, 1995
In 1996, total revenues for Cal Jockey increased $171,000 (3%), compared to the
prior year. Rental income derived from the leasing of its racing facility is
based on pari-mutuel wagering at Bay Meadows and increased $175,000 (4%) as a
result of seven more racing days in 1996 than in 1995. Total interest income
decreased $3,000 from the prior year, primarily as a result of a lower average
balance of investments.
Expenses for the year ended December 31, 1996, increased $5,110,000 (337%),
primarily as a result of costs related to acquisition proposals and Cal
Jockey's proxy contest. Legal fees increased from $80,000 for the year ended
December 31, 1995 to $1,124,000 for the year ended December 31, 1996. The
increase in legal fees are similarly attributed to the proxy contest. General
and administrative costs increased $565,000 primarily due to the proxy
contest.
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<PAGE> 24
RESULTS OF OPERATIONS: YEAR ENDED DECEMBER 31, 1995 COMPARED WITH YEAR ENDED
DECEMBER 31, 1994
In 1995, total revenues for Cal Jockey increased $65,000 (1%), compared to the
prior year. Rental income derived from the leasing of its racing facility
decreased $34,000 (1%). This decrease was primarily the result of Bay Meadows
racing five fewer days in 1996 compared to the prior year. Total
interest income increased $106,000 from the prior year, primarily as a result of
a higher average balance of investments.
While total expenses for 1995 decreased $38,000 (2%) compared to 1994, General
and Administrative expense increased $145,000. The 33% increase in general and
administrative expenses is due to Cal Jockey's employment of a real estate
manager, as of September 1, 1994, and the overhead associated with having an
employee.
LIQUIDITY AND CAPITAL RESOURCES
During 1996, Cal Jockey's primary sources of capital were from proceeds of
maturing securities and a note payable. Net cash used in operating activities
was $1,655,000, consisting primarily of a net loss excluding depreciation, and
$1,763,000 increase in receivables from Bay Meadows, offset by an increase of
$424,000 in accounts payable and accrued liabilities. The net loss for 1996
was primarily due to merger related costs, and increases in legal expense and
general and administrative costs. Receivables from Bay Meadows increased due
primarily to amounts related to the rental of the race facility. Net cash
provided by investing activities was $1,210,000, consisting of net proceeds of
$2,614,000 on maturities of securities held to maturity, offset by purchases of
$1,404,000 of property plant and equipment. Net cash provided by financing
activities was $594,000, consisting of proceeds of $2,900,000 from a note
payable with Patriot in connection with the merger agreement, offset by
$2,306,000 paid in dividends on common stock.
Cash and cash equivalents increased by $149,000 during 1996 from $989,000 at the
end of 1995 to $1,138,000 at the end of 1996. The note payable to Patriot bears
interest of 5% per annum and principal and accrued interest on the note payable
to Patriot American is due the earlier of June 30, 1997 or termination of the
Merger Agreement. Cal Jockey's financial condition and results of operations
are affected by Thoroughbred racing. This is due to the fact that the lease
revenues are dependent on Bay Meadows operations. During 1996, there were seven
more race days than 1995 (115 v. 108). In 1997, Bay Meadows has been allocated
11 less Thoroughbred racing days than in 1996. This is expected to negatively
impact revenues and profitability for 1997.
Cal Jockey anticipates that funds generated internally and its cash reserves
will be sufficient to meet its liquidity requirements for the foreseeable
future.
INFLATION
Inflation is not expected to materially impact Cal Jockey.
BAY MEADOWS OPERATING COMPANY
RESULTS OF OPERATIONS: YEAR ENDED DECEMBER 31, 1996 COMPARED WITH YEAR ENDED
DECEMBER 31, 1995
Total revenues increased $3,216,000 (6%) for 1996, compared with 1995. This
was primarily due to an increase in pari-mutuel revenues of $2,521,000.
Pari-mutuel revenues increased due primarily to an additional seven more live
racing days in 1996 than 1995 (115 vs. 108).
Concession revenues increased $546,000, and admissions, programs, parking and
other racing income increased $64,000, having been positively impacted by the
same factors which affected pari-mutuel revenues.
During 1996, there were charges in the components of pari-mutuel wagering. Live
on-track wagering decreased 2% while live off-track racing in Northern
California increased 4%. Wagers made on Southern California on races conducted
at Bay Meadows increased from $132,033,000 in 1995 to $144,361,260 (9%). Bay
Meadows receives a fee of 2.5% of handle on these races and is required to pay
50% of the fee received to horse owners as purses. In addition, wagers made at
out-of-state locations on races conducted at Bay Meadows increased $28,246,000
from $88,985,000 in 1995 to $117,231,000 in 1996. Fees on these races generally
range from 2.5% to 3.75% of the handle on these races at the export locations
and are statutorily divided among purses, the State of California and incentive
awards.
-24-
<PAGE> 25
Management believes revenues earned are a better financial barometer than
handle. Handle derived from out-of-state locations is far less profitable than
wagering within California. Admissions, programs, parking and other racing
revenue increased from $5,164,000 in 1995 to $5,228,000 in 1996.
Total costs and expenses increased $3,437,000 (7%) for the year ended
December 31, 1996, compared with the prior year. This was primarily due to
increases in expenses associated with higher operating revenues, including (i)
purses and incentive awards ($1,308,000), (ii) direct operating costs
($1,547,000) and (iii) racing facility rental ($181,000). Additionally, legal
expenses of $425,000 were incurred related to litigation commenced by Cal
Jockey with respect to its proxy contest and other legal matters. Another
$491,000 of expenses were incurred related to the proposed merger transactions.
RESULTS OF OPERATIONS: YEAR ENDED DECEMBER 31, 1995 COMPARED WITH YEAR ENDED
DECEMBER 31, 1994
Total revenues decreased $931,000 (2%) for 1995, compared with the prior year
because of a large decrease in pari-mutuel revenue which was partially offset by
producer fees, rental of racing facility revenues, concession sales and other
income. This decrease was primarily due to Bay Meadows racing five fewer days in
calendar year 1995 as compared to 1994 (108 vs. 113).
Compared to 1994, there was a change in the components of pari-mutuel wagering.
While wagering decreased on-track and off-track in Northern California, wagers
increased at locations in Southern California and out-of-state on races
conducted at Bay Meadows. Wagers made in Southern California on races conducted
at Bay Meadows increased from $100,737,000 in 1994 to $132,033,000 in 1995. Bay
Meadows receives a fee of up to 2.5% of handle on these races and is required to
pay 50% of the fee received to horse owners as purses. In addition, wagers made
at out-of-state locations on races conducted at Bay Meadows increased
$19,100,000 from $69,885,000 in 1994 to $88,985,000 in 1995. Fees on these races
generally range from 2.5% to 3.75% of the handle on these races at the export
location and are statutorily divided among purses, the State of California and
incentive awards.
Management believes fees earned are a better financial barometer than handle
because, with the advent of simulcasting, handle has become less meaningful.
Simulcast handle is sometimes counted by more than one track, and handle derived
from out-of-state locations is far less profitable than wagering within
California. Admissions, programs, parking and other racing income decreased
$235,000 due primarily to a decrease in the number of race days.
Total costs and expenses decreased $727,000 (2%) for the year ended December
31, 1995, compared with 1994. This was primarily due to decreases in expenses
associated with lower operating revenues, including (i) purses and incentive
awards ($1,038,000), (ii) commissions paid to guest locations ($136,000), and
(iii) racing facility rental ($38,000). General and administrative expenses
decreased $136,000 (4%) for the year ended December 31, 1995, compared with
1994. Compared to 1994, direct operating expenses increased by $344,000 in 1995.
In addition, $666,000 in expenses were incurred in connection with the
unsuccessful attempt to establish a Card Club, compared to $209,000 in 1994. A
loss on disposal of fixed assets in the amount of $99,000 was recorded in 1995
due to accelerated replacement of certain fixed assets.
INFLATION
Inflation is not expected to materially impact Bay Meadows.
LIQUIDITY AND CAPITAL RESOURCES
Cash and cash equivalents decreased to $889,000 at December 31, 1996 from
$6,318,000 at December 31, 1995. Net cash used in operating activities was
$4,144,000, consisting primarily of a $3,319,000 decrease in accounts payable
and accrued liabilities, a $1,014,000 decrease in accrued purses, a $3,056,000
decrease in amounts due to Thoroughbred horse owners, and a $4,477,000 decrease
in uncashed pari-mutual tickets and vouchers, offset by a $1,944,000 decrease
in accounts receivable, a $3,056,000 decrease of amounts held on deposit for
Thoroughbred horse owners, and a $1,763,000 increase amounts payable to Cal
Jockey. The net cash used in operating activities were primarily due to the
timing of live race days in 1996 as compared to 1995. At December 31, 1995,
Bay Meadows was racing live, whereas at December 31, 1996 the race meet had
concluded over a month earlier, therefore allowing for all assets and
liabilities to be settled prior the year end. Net cash used in investing
activities was $1,285,000 for the purchase of property, plant and equipment.
Net cash from financing activities was zero, consisting of $4,000,000 in
proceeds and subsequent repayment of a note payable.
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<PAGE> 26
As of December 31, 1996, Bay Meadows' current liabilities exceeded its current
assets by $3,048,000. The current ratio (current assets to current liabilities)
was .38 to 1 as of December 31, 1996, as compared to .81 to 1 as of December 31,
1995. This was primarily due to the changes in the 1996 racing calendar. For the
calendar year 1997, Bay Meadows has been allocated eleven less Thoroughbred
racing days than in the prior year, which is expected to negatively impact
revenues and profitability in 1997.
Bay Meadows is dependent on Cal Jockey's assistance in securing a bank line of
credit for its working capital needs throughout the year. Bay Meadows received a
signed commitment from Cal Jockey to guaranty a $2,500,000 bank line of credit.
Bay Meadows obtained this bank line of credit on March 10, 1997, and it is
available through February 1, 1998. Bay Meadows anticipates that it may be
required to borrow or seek an alternative source of funds to ensure liquidity
after that date if the Merger is not consummated.
RISK FACTORS
REAL ESTATE INVESTMENT RISKS
General Risks
Cal Jockey's investments will be subject to varying degrees of risk generally
incident to the ownership of real property. The underlying value of Cal
Jockey's real estate investments and Cal Jockey's income and ability to make
distributions to its stockholders will be dependent upon the ability of Cal
Jockey to manange its real property in a manner sufficient to maintain or
increase revenues and to generate sufficient income in excess of operating
expenses. Income from investments may be adversely affected by changes in
national economic conditions, changes in local market conditions due to changes
in general or local economic conditions and neighborhood characteristics,
changes in interest rates, the impact of present or future environmental
legislation and compliance with environmental laws, the ongoing need for
capital improvements, changes in real estate tax rates and other operating
expenses, adverse changes in govermental rules and fiscal policies, adverse
changes in zoning laws, civil unrest, acts of God, including earthquakes and
other natural disasters (which may result in uninsured losses), acts of war and
other factors which are beyond the control of Cal Jockey.
Value and Illiquidity of Real Estate
Real estate investments are relatively illiquid. The ability of Cal Jockey to
vary its portfolio in response to changes in economic and other conditions will
therefore be limited. If Cal Jockey must sell an investment, there can be no
assurance that Cal Jockey will be able to dispose of it in the time period it
desires or that the sales price of any investment will recoup or exceed the
amount of Cal Jockey's investment.
Property Taxes
Cal Jockey's and Bay Meadow's racing facilities are subject to real property
taxes. The real property taxes on the racing facilities in which Cal Jockey
invests may increase or decrease as property tax rates change and as the value
of the properties are assessed or reassessed by taxing authorities. If property
taxes increase as a result of such reappraisals or reassessments, Cal Jockey's
ability to make expected distributions to its stockholders could be adversely
affected.
POTENTIAL RISKS RELATED TO ENTITLEMENTS FOR FRANKLIN AGREEMENT AND IACOCCA
AGREEMENT.
As a condition to consummation of the land sale transactions contemplated by
the Franklin Agreement and the Iacocca Agreement, Cal Jockey is required to
secure certain planning, land use, and zoning Entitlements from the City of San
Mateo allowing the development of the subject properties. Cal Jockey also is
required to obtain final certification of an EIR analyzing the environmental
effects (such as impacts on traffic flow, air quality, and growth inducement)
of certain of the Entitlements. The City of San Mateo has scheduled a series of
Planning Commission and City Council meetings to evaluate the Entitlements and
the EIR, culminating in a final City Council meeting currently expected to be
held on Tuesday, April 22, 1997 at which meeting the City Council is expected
to make a final decision as to the certification of the EIR with a decision as
to approval of the Entitlements shortly thereafter. Although Cal Jockey
anticipates approval of the Entitlements and certification of the EIR, it is
possible that the schedule for the final decision could be delayed and it also
is possible that the Entitlements and/or EIR could be rejected or subject to
significant or changed conditions of approval. Any such delay, rejection, or
addition of significant or changed conditions could have an effect on the
obligations of Property Resources and Airdial to consummate the purchase of the
Stable Area and the Training Track Area. In addition, both the Franklin
Agreement and the Iacocca Agreement require as a condition to the buyers'
obligations to consummate the sale transactions, that Cal Jockey secure a
Development Agreement vesting the rights of Property Resources and Airdial to
develop the property subject to set conditions and fees. While a draft of such
agreement has been submitted to the City of San Mateo, city officials have not
yet indicated whether the city will agree to execute such an agreement. Such a
failure of the city to agree to a Development Agreement could give rise to
rights of termination of the Franklin Agreement and the Iacocca Agreement by
Property Resources and Airdial, respectively.
REIT TAX RISKS
Dependence on Qualification as a REIT
Cal Jockey operates in a manner designed to permit it to qualify as a REIT for
federal income tax purposes, but no assurance can be given that Cal Jockey will
be able to continue to operate in a manner so as to qualify or remain so
qualified. Qualification as a REIT involves the application of highly technical
and complex Code provisions for which there are only limited judicial or
administrative interpretations. Qualification as a REIT also involves the
determination of various factual matters and circumstances not entirely within
Cal Jockey's control. In addition, no assurance can be given that new
legislation, new regulations, administrative interpretations or court decisions
will not change the tax laws with respect to qualification as a REIT or the
federal income tax consequences of such qualification. Cal Jockey, however, is
not aware of any currently pending tax legislation that would adversely affect
the ability of Cal Jockey to continue to qualify as a REIT.
If Cal Jockey were to fail to qualify as a REIT, Cal Jockey would be subject to
federal income tax (including any applicable alternative minimum tax) on its
taxable income at corporate rates. In addition, unless entitled to relief under
certain statutory provisions, Cal Jockey also would be disqualified from
treatment as a REIT for the four taxable years following the year during which
qualification is lost. This treatment would reduce the net earnings of Cal
Jockey available for distribution to stockholders because of the additional tax
liability to Cal Jockey for the year or years involved. In addition,
distributions would no longer be required to be made.
HORSE RACING INDUSTRY RISKS
Regulation of Gaming Operations
Bay Meadows' pari-mutuel wagering operations are contingent upon the continued
governmental acceptance of such operations as forms of legalized gambling. As a
form of gambling, pari-mutuel wagering is subject to extensive licensing and
regulatory control by the CHRB and other California authorities. These
regulatory authorities have broad powers with respect to the licensing of
gaming operations, and may revoke, suspend, condition or limit the gaming
operations of Bay Meadows. Any such change in regulations may have a material
adverse effect on Bay Meadows' financial condition and results of operations.
Stable Area
Bay Meadows' operations are conducted at the Racecourse. Cal Jockey has agreed
to sell the Stable Area of the Racecourse pursuant to the Franklin Agreement.
The purchaser of the Stable Area has indicated its intention to tear down the
existing stables on or about March 1998. Bay Meadows has publicly proposed a
plan for the construction of 954 on-site stalls replacing the stalls to be torn
down and Patriot has indicated its support for this plan. The cost for the
construction of such stalls is estimated to be between $8 million to $10
million. There can be no assurance that Bay Meadows will obtain in a timely
fashion the necessary governmental approvals to construct such stalls before
March 1998. If such replacement stalls are not built as contemplated, Bay
Meadows' financial condition and results of operations may be adversely
affected. Further, any prolonged suspension of operations at the facility due
to destruction of or material damage to the facility or for other reasons could
have a material adverse effect on Bay Meadows' financial condition and results
of operations. Bay Meadows intends to maintain property and business
interruptions insurance to protect against such types of disruption, but there
can be no assurance that the proceeds of such insurance would be adequate to
repair or rebuild its facilities in such event or to compensate Bay Meadows
for losses incurred during the period of any such disruption.
Dependence on Relationship with Owners and Trainers Associations
Bay Meadows' Thoroughbred horse racing operations requires it to maintain good
working relationships with the Thoroughbred Owners of California (the "Owners
Association"), the organization recognized by the CHRB as representing owners
of Thoroughbreds participating in horse racing meets at the Racecourse, and the
California Horsemen's Benevolent and Protective Association (the "Trainers
Association"), the organization recognized by the CHRB as representing
trainers. If Bay Meadows is unable to continue its present relationships with
the Owners Association or the Trainers Association or finds itself unable to
attract a sufficient number of horses to its live horse race meets, such events
could have a material adverse effect on Bay Meadows' financial condition and
results of operations.
Competition
Thoroughbred horse racing, and gaming generally, are competitive industries. Bay
Meadows competes in regional markets with other horse race courses, off-track
betting, state-run lotteries and Indian reservation gaming. Many of these
competitors have resources that exceed those of Bay Meadows. Bay Meadows also
competes locally with other sporting and entertainment businesses. Approval of
legislation legalizing casinos and other forms of gaming or expansion of gaming
at Indian reservations could increase competition for Bay Meadows in the future
and could have a material adverse effect on Bay Meadows' financial condition and
results of operations. Also, Bay Meadows may face increasing competition from
businesses accepting wagers by telephone and via the Internet.
Declines in On-Track Attendance
Many race tracks across the nation, including the Racecourse, are experiencing
declines in on-track attendance. There can be no assurance that Bay Meadows
will not experience further declines in on-track attendance, which declines
could have a material adverse effect on its results of operations.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information required by Item 8 has been provided on pages F-1 through F-27
of this Annual Report on Form 10-K.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
<TABLE>
<CAPTION>
CALIFORNIA JOCKEY CLUB
NAME AGE DIRECTOR PRINCIPAL OCCUPATION AND
FROM BUSINESS EXPERIENCE
<S> <C> <C> <C>
James P. Conn 59 1983- Managing Director and Chief Investment Officer of Financial Security
present Assurance since 1993. Director of Santa Anita Realty Enterprises.
Former President and Chief Executive Officer of Bay Meadows
(Thoroughbred racing) from March 1988 to November 1992. Director of
Gabelli Equity Trust (publicly-held investment company) and Gabelli
Asset Fund since 1988. Director of Gabelli Global Multi-Media Trust
and Gabelli Global Growth Fund. Director of the former California
Jockey Club from 1969 until its reorganization on March 31, 1983.
David M. Gjerdrum 51 1996- President of KERMA, Inc. an electronic marketing and system consulting
present firm, since 1991.
James M. Harris* 64 1983- President and Treasurer of the Company since 1983, and Secretary since
present September 1996. Vice President of Cazenove, Inc., International
Stockbrokers, for more than five years (until retirement in 1992).
Director of the former California Jockey Club from 1969 until its
</TABLE>
-26-
<PAGE> 27
<TABLE>
<S> <C> <C> <C>
reorganization on March 31, 1983.
Brian M. Herrera 43 1992- President, Herrera Cadillac (auto dealership) since October 1991.
1996
Marylin Kyne Gunderson 74 1983- Private investor for more than five years. Secretary of the Company
1996 from 1985 to 1989.
Richard E. Perazzo 50 1990- Self-employed Certified Public Accountant since 1990. Chief Financial
1996 Officer and Treasurer of Bay Meadows Operating Company from 1983 to
1989. Controller of the former California Jockey Club from 1976 to
1983. Director of Bay Meadows Operating Company from 1983 to 1989.
Kjell H. Qvale* 77 1991- Chairman of the Board of Cal Jockey since 1991, and Secretary from
present 1991 through September 1996. Chairman of the Board of British Motor
Car Distributors, Ltd. (an automotive sales company) since 1948.
Chairman of the Board of KJB Development Corp. (an automobile and
investment company) for over 35 years. Chairman of the Board of
First National Bank of Marin. Prior to 1991, President and
Director of Pacific Racing Association d.b.a. Golden Gate Fields
(Thoroughbred racing), over 2 years.
Ronald J. Volkman 59 1996- Chairman of the Board and President of ATX, Inc., a real estate
present development company, since 1991. Chairman of the Board of Dallas
Pump Service & Supply Co. Inc. and Four Seasons Travel Inc. since 1991.
</TABLE>
- --------------
*Executive Officers of Cal Jockey
There is no family relationship among any of Cal Jockey's executive officers,
directors or nominees for director.
COMPLIANCE WITH SECTION 16(a) OF THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Securities Exchange Act of 1934 requires Cal Jockey's
directors and executive officers, and persons who own more than ten percent of a
registered class of its equity securities, to file with the Securities and
Exchange Commission and the American Stock Exchange initial reports of ownership
and reports of changes in ownership of Common Stock and other equity securities
of Cal Jockey. Executive officers, directors and greater than ten-percent
shareholders are required by SEC regulation to furnish Cal Jockey with copies of
all Section 16(a) forms they file.
To Cal Jockey's knowledge, based solely on review of the copies of such reports
furnished to Cal Jockey and written representations that no other reports were
required, during the fiscal year ended December 31, 1996, all executive
officers, directors and greater than ten-percent beneficial owners complied with
any applicable Section 16(a) filing requirements.
-27-
<PAGE> 28
<TABLE>
<CAPTION>
BAY MEADOWS OPERATING COMPANY
NAME AGE DIRECTOR PRINCIPAL OCCUPATION AND
SINCE BUSINESS EXPERIENCE
<S> <C> <C> <C>
Eugene F. 59 1983 Vice President - Racing of the Bay Meadows since March 1995. Director
Barsotti, Jr. of Racing of the Company since September 1987. Assistant Racing
Secretary of Bay Meadows Racing Association and Pacific Racing
Association from 1975 until September 1987. Director of the former
California Jockey Club from 1981 until its reorganization in 1983.
F. Scott Gross 50 1996 President and COO of Primus Management, Inc., company specializing in
acquisition, development and finance and operation of hospitals.
President and CEO of National Medical Enterprises (health care
company) from 1984 to 1987. Operates J & L Thoroughbred Racing Stable.
Greg S. Gunderson 46 1996 District Sales and Marketing for TCI of California. General Manager
and CEO of Portland Meadows Racetrack from 1989 to 1992. Director of
Bay Meadows 1983 - 1988. Director of Marketing for Bay Meadows from
1977 to 1988 and Operations Manager from 1974 to 1976.
John C. Harris 53 1992 Chairman of the Board since October 1992. Owner and Chief Executive
Officer of Harris Farms, Inc., a diversified agricultural production
and marketing company. Thoroughbred owner and breeder for over 25
years. Director and past president of California Thoroughbred
Breeders Association. Member of the Jockey Club.
Lee R. Tucker 65 1990 Secretary of the Bay Meadows since June 1995. President and Chairman
of the Board of L.M., Inc. (food brokers and investment) since 1980.
Anthony J. Zidich 68 1991 Treasurer of the Bay Meadows since January 1993. City Treasurer, City
of Daly City, since 1972. Director of the Peninsula Quarter Horse
Racing Association since 1980. Director of the Horseman's Quarter
Horse Racing Association since 1989.
EXECUTIVE OFFICERS OF BAY MEADOWS
F. Jack Liebau* 58 1994 President and Chief Executive Officer of the Bay Meadows since
November 1992 and a Director since January 1994. Director and past
president, California Thoroughbred Breeders Association. Member of
the Jockey Club. From 1987-1996, President and Director of N.J.
Financial Corporation and its affiliated companies. From 1985 -1995
Of Counsel, and from 1981-1986, Partner, Morgan, Lewis & Bockius (law
firm). From 1968-1981, Partner, Adams, Duque & Hazeltine (law firm).
</TABLE>
-28-
<PAGE> 29
<TABLE>
<S> <C> <C>
Frank Trigeiro 58 Vice President - Finance of the Bay Meadows since March 1995. Vice
President - Finance of the Maryland Jockey Club from 1986 to 1994;
Chief Financial Officer and Director of the Southern California Racing
Association, 1979 to 1983; Chief Financial Officer of the Northern
California Racing Association, 1979 to 1983; Officer and Director of
Racing Management, Inc., 1979 to 1983; Controller of the Golden Bear
Raceway, 1975 to 1983; and Controller of Calny Food Services, Inc., a
publicly held national fast food company. Mr. Trigeiro spent eight
years in the public accounting profession prior to the foregoing
endeavors.
</TABLE>
- -----------------
*Also a director of Bay Meadows.
There is no family relationship among any of the Company's executive officers,
directors or nominees for director.
COMPLIANCE WITH SECTION 16(A) OF THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Securities Exchange Act of 1934 requires Bay Meadows'
directors and executive officers, and persons who own more than ten percent of a
registered class of its equity securities, to file with the Securities and
Exchange Commission and the American Stock Exchange initial reports of ownership
and reports of changes in ownership of Common Stock and other equity securities
of Cal Jockey. Executive officers, directors and greater than ten-percent
shareholders are required by SEC regulation to furnish Bay Meadows with copies
of all Section 16(a) forms they file.
To Bay Meadows' knowledge, based solely on review of the copies of such reports
furnished to Bay Meadows and written representations that no other reports were
required, during the fiscal year ended December 31, 1996, all Section 16(a)
filing requirements applicable to its executive officers, directors and greater
than ten-percent beneficial owners were complied with.
ITEM 11. EXECUTIVE COMPENSATION
CALIFORNIA JOCKEY CLUB
Cal Jockey's executive officers serve in such capacities without compensation
for their services. For 1996, members of the Board of Directors received a fee
of $14,000 for twelve months of service, adjusted pro rata to reflect actual
months served. During 1996, each director was also provided a food and beverage
allowance of $1,000 for use by the director and his or her guests in the
Directors Room and Turf Club at Bay Meadows Racecourse. The Directors who are
appointed to various committees serve in such capacities without
compensation for their services.
The members of Cal Jockey's Audit Committee are James Conn, David Gjerdrum and
James Harris. The functions of the Audit Committee are to review the annual
financial statements with the Company's independent public accountants prior to
publication, to review their work, approve any non-audit services performed by
them, and to make annual recommendations to the Board of Directors for the
appointment of independent public accountants for the ensuing year.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION:
Cal Jockey does not compensate its executive officers for their services.
Accordingly, there is no Compensation Committee and no report on executive
compensation included in this Annual Report.
BAY MEADOWS OPERATING COMPANY
The following table discloses compensation earned for each of the three fiscal
years ended December 31, 1994-1996, by Bay Meadows' Chief Executive Officer at
the end of 1996 and each executive officer of Bay Meadows at the end of
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<PAGE> 30
1996 whose aggregate cash compensation in 1996 exceeded $100,000 (all such
executive officers, including the President and Chief Executive Officer, are
collectively referred to herein as the "Named Executive Officers").
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
LONG-TERM
COMPENSATION
ANNUAL COMPENSATION AWARDS
----------------------------- ------------------------
SECURITIES UNDERLYING
NAME AND PRINCIPAL OPTIONS/ ALL OTHER
POSITION SALARY BONUS SARS (#) COMPENSATION
YEAR ($) ($) ($)
<S> <C> <C> <C> <C>
F. Jack Liebau 1996 258,900(a)(b) 35,000 20,000(e) 11,250(c)
President and CEO 1995 225,000(a) 50,000(d) 25,000 11,250(c)
1994 206,250(a) 50,000(d) 20,000 15,750(c)
Frank Trigeiro 1996 125,900(b) 5,000 7,500(e) 8,750(c)
Vice President-Finance 1995 115,000 7,500 8,625(c)
</TABLE>
(a) From March 1, 1994 to February 29, 1996, Mr. Liebau was employed by Bay
Meadows pursuant to a written employment agreement. Although Mr. Liebau
continues to be employed substantially in accordance with the terms of that
employment agreement, the term of the written agreement has not been
formally extended.
(b) During 1996, Messrs. Liebau and Trigeiro were each provided living
accomodations by Bay Meadows valued at $25,300 and $12,600, respectively.
Each of the named executive officers also has the use of an automobile
owned by Bay Meadows.
(c) Contribution to pension plan.
(d) Bonus attributable to services rendered during the indicated year, and paid
in 1996.
(e) The information regarding stock options granted during 1996 included in
Note 7 of the Notes to the Financial Statements--STOCK OPTION PLAN is
incorporated herein by reference.
OPTION/SAR GRANTS IN LAST FISCAL YEAR
The following table sets forth certain information concerning Options/SARs
granted during 1996 to the Named Executive Officers:
<TABLE>
<CAPTION>
POTENTIAL REALIZABLE
VALUE AT ASSUMED
ANNUAL RATES OF STOCK
PRICE APPRECIATION
INDIVIDUAL GRANTS FOR OPTION TERM (a)
- -------------------------------------------------------------------------------------- -----------------------------
NUMBER OF
SECURITIES % OF TOTAL
UNDERLYING OPTIONS/SARS
OPTIONS/ GRANTED TO EXERCISE OR
SARS EMPLOYEES IN BASE PRICE EXPIRATION
NAME GRANTED (#) FISCAL YEAR ($/SHARE) DATE 5% ($) 10% ($)
<S> <C> <C> <C> <C> <C> <C>
F. Jack Liebau 20,000(b) 38.10% $14.75 3/2/2001 185,524 470,154
Frank Trigeiro 7,500(b) 14.29% $14.75 3/29/2001 169,571 176,308
</TABLE>
(a) These columns present hypothetical future values of the stock obtainable
upon exercise of the options net of the exercise price, assuming that the
market price of the Paired Common Stock appreciates at a five and ten
percent compound annual rate over the ten-year term of the options. The five
and ten percent rates of stock price appreciation are presented as examples
pursuant to the Proxy Rules and do not necessarily reflect managment's
assessment of the Companies' future stock performance. The potential
realizable values presented are not intended to indicate the value of the
options.
(b) The information regarding stock options granted during 1996 included in
Note 7 of the Notes to the Financial Statements--STOCK OPTION PLAN is
incorporated herein by reference.
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<PAGE> 31
AGGREGATED OPTIONS/SAR EXERCISES IN LAST FISCAL YEAR AND
FISCAL YEAR-END OPTIONS/SAR VALUES
The following table summarizes options and SARs exercised during 1996 and
presents the value of unexercised options and SARs held by the Named Executive
Officers at December 31, 1996:
<TABLE>
<CAPTION>
VALUE OF
NUMBER OF UNEXERCISED
UNEXERCISED IN-THE-MONEY
OPTIONS/SARS OPTIONS/SARS
SHARES AT FISCAL AT FISCAL
ACQUIRED VALUE YEAR-END (#) YEAR-END ($)
ON EXERCISE REALIZED EXERCISABLE (E)/ EXERCISABLE (E)/
NAME (#) ($) UNEXERCISABLE (U) UNEXERCISABLE (U)
<S> <C> <C> <C> <C>
F. Jack Liebau 0 N/A 86,667 E 2,264,175 E
8,333 U (a) -- U
Frank Trigeiro 0 N/A 7,500 E 195,938 E
</TABLE>
(a) The stock option agreement underlying these options provides that vesting
of these options will accelerate upon a change in control of Bay Meadows.
Accordingly, the options will become exercisable when the Merger is
consummated.
PENSION PLANS
The table that follows shows the estimated annual benefits payable upon
retirement to non-union employees of Bay Meadows under the California Race Track
Pension Plan. Participants are fully vested after five years of service.
<TABLE>
<CAPTION>
AVERAGE ANNUAL
EARNINGS 5 YEARS 10 YEARS 20 YEARS 30 YEARS 40 YEARS
<C> <C> <C> <C> <C> <C>
$ 50,000 $ 6,250 $ 12,500 $ 25,000 $ 37,500 $ 50,000
100,000 12,500 25,000 50,000 75,000 100,000
150,000 and over 18,750 37,500 75,000 112,500 118,800 (a)
</TABLE>
(a) In accordance with Section 415 Limits - IRS Code.
The compensation covered by the above plan is annual earnings of an employee.
The covered compensation is the same as the compensation reported in the Summary
Compensation Table under the Salary column (up to a maximum of $150,000 per
year). The pension table above sets forth estimated annual retirement benefits,
payable (as a straight-life annuity), assuming retirement at age 65, using the
normal form of benefit under the above plan; the benefits listed are not subject
to any deduction for social security or other offset amounts.
-31-
<PAGE> 32
The number of years of credited service at December 31, 1996, for the Named
Executive Officers is as follows: Mr. F. Jack Liebau (four years) and Frank
Trigeiro (two years).
There were no Long-Term Incentive Plan Awards granted or options repriced during
1996.
COMPENSATION OF DIRECTORS
For 1996, members of the Board of Directors received an annual fee of $12,000
each. Eugene F. Barsotti, Jr. and F. Jack Liebau, as employees of Bay Meadows,
received no such annual fee. The Directors who are appointed to various
committees serve in such capacities without compensation for their services.
During 1996, each director was also provided a food and beverage allowance of
$1,000 for use by the director and his guests in the Directors Room and Turf
Club at Bay Meadows Racecourse.
CHANGES IN CONTROL ARRANGEMENTS
Bay Meadows has in effect severance agreements with certain members of senior
management, including Messrs. Liebau and Trigeiro. These agreements, which were
entered on August 30, 1996, each provide that if, following a change in control
of Bay Meadows, the respective employee's employment is terminated prior to
January 1, 1998, or within 24 months following a change in control of Bay
Meadows prior to January 1998, he or she will be entitled to receive (i) payment
of full base salary from the date of notice of termination to the date of
termination (but no less than 30 days) at the highest rate in effective during
the 12 months immediately preceding the notice of termination, (ii) a lump sum
payment equal to the amount of his or her annual base salary at the highest rate
in effective during the 12 months immediately preceding notice of termination
and the amount of any bonuses or other incentive compensation paid during the 12
months immediately preceding notice of termination or calendar year 1996,
whichever is greater (or, with respect to Mr. Liebau, two times the sum of such
amounts), (iii) at his or her option, either continued contributions to his or
her retirement plan through January 1, 1998 or a lump sum equal to the actuarial
equivalent of the additional retirement pension to which he or she would have
been entitled had he or she continued service under such plan for an additional
two years, (iv) the right to purchase any Bay Meadows automobile assigned to him
or her for book value, (v) payment of all legal fees and expenses incurred as a
result of the termination and (vi) continued coverage under Bay Meadows' health
care and welfare benefit plans for two years.
STOCK PERFORMANCE GRAPH
The following graph shows a comparison of cumulative returns during the five
year period ended December 31, 1996, of the Paired Common Stock (BMOC/CJC),
Standard and Poor's 500 Composite Index (S&P 500 Index), and the National
Association of Real Estate Investment Trust's all REIT Index:
-32-
<PAGE> 33
[STOCK PERFORMANCE GRAPH]
<TABLE>
<CAPTION>
1990 1991 1992 1993 1994 1995 1996
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
BMOC/CJC 100 106 100 116 139 148 423
S & P 500 Index 100 131 140 155 157 218 268
All REIT Index 100 136 155 186 192 221 299
</TABLE>
The stock performance graph assumes that the original investment in the Paired
Common Stock and the amount invested in the two indexes was $100 on December 31,
1990, and that all dividends during the period were reinvested.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION:
The members of Bay Meadows' Compensation Committee are Lee R. Tucker (Chairman),
John C. Harris, and Anthony J. Zidich. Since October 1992, Mr. Harris has served
as Bay Meadows' Chairman of the Board.
COMPENSATION COMMITTEE REPORT
The Compensation Committee is composed of three outside directors and is
responsible for annually reviewing the compensation paid to all of the officers
of the Bay Meadows. The Compensation Committee develops recommendations with
respect to the Board of Directors for adoption and/or modification.
The Compensation Committee seeks to provide the Bay Meadows' executive officers
with reasonable and sufficient compensation to attract and retain experienced
individuals as executive officers. The Bay Meadows' executive officers are
primarily compensated through their salaries, although Bay Meadows has a stock
option plan. Bay Meadows does not have any formal bonus plan or restricted stock
plan.
In exercising its judgment as to the appropriate compensation to be paid to each
executive officer, the Compensation Committee reviews annually the experience
and performance of each executive officer as well as the Bay Meadows' overall
performance. There is, however, no specific quantifiable relationship between
Bay Meadows performance and the compensation levels for executive officer. The
Compensation Committee also
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<PAGE> 34
considers the compensation packages at other publicly-traded companies which run
Thoroughbred racing meets. As part of its review in 1996, the Compensation
Committee considered the results of a compensation study performed by outside
consultants at the request of the Compensation Committee. In comparing the Bay
Meadows' salaries to those paid by other companies, the Compensation Committee
takes into account the small number of executive officers at Bay Meadows, the
responsibilities resulting from Bay Meadows being publicly held and the limited
forms of compensation it uses. The Compensation Committee also takes into
account prior salary adjustments, as well as the relative salary levels of Bay
Meadows' executive officers.
Mr. Liebau was appointed as President and Chief Executive Officer of the Company
in November 1992. In view of the factors considered by the Compensation
Committee which are discussed above, Mr. Liebau's base compensation was
increased from $225,000 to $265,000 in 1996. Specifically, in setting Mr.
Liebau's salary last year, the Committee took into account a number of factors
including the results of the compensation study performed by the outside
consultants, salaries paid by other gaming companies, Bay Meadows and Mr.
Liebau's performances, Mr. Liebau's prior experience as a lawyer and corporate
executive, his knowledge of the Thoroughbred industry and the amount of time he
was spending in fulfilling his duties as President and CEO.
Compensation Committee
Lee R. Tucker, Chairman
John C. Harris, Member
Anthony J. Zidich, Member
STOCK OPTION COMMITTEE REPORT
The Company has a stock option plan, and from time to time options have been
awarded to executive officers and other employees. The stock option plan is a
part of the compensation package for executive officers and stock options can
augment an employee's salary.
On March 29, 1996, Mr. Liebau was granted stock options to purchase up to 20,000
shares of BMOC Common Stock at the March 29, 1996 market price of $14.75. On
March 29, 1996 Mr. Trigeiro was granted stock options to purchase up to 7,500
shares of BMOC Common Stock at the March 29, 1996 market price of $14.75. The
levels of the option grants were based on the judgment of the Board taking into
account the Company's overall performance, the recipient's compensation level,
the levels of prior option grants to the Company's executive officers and key
employees and the levels of prior option grants to the Company's former
officers. Other grants of options were made to various key employees during
1996.
Stock Option Committee
Lee R. Tucker, Chairman
John C. Harris, Member
Anthony J. Zidich, Member
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
CALIFORNIA JOCKEY CLUB
SECURITY OWNERSHIP
The following table sets forth, as of March 17, 1997, the number of shares of
Paired Common Stock owned (i) by each director, (ii) by all directors and
executive officers as a group, and (iii) by all those known by Cal Jockey to be
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<PAGE> 35
beneficial owners of more than five percent (5%) of Paired Common Stock,
together with the percentage of stock so owned. Cal Jockey has no executive
officers who are not also directors.
<TABLE>
<CAPTION>
AMOUNT AND NATURE
OF BENEFICIAL PERCENTAGE
NAMES OF BENEFICIAL OWNER (1) OWNERSHIP (2) OF TOTAL (7)
<S> <C> <C> <C>
James P. Conn 55,000 (3) 1.0 %
David M. Gjerdrum 24,010 (4) *
James M. Harris 17,012 (5) *
Kjell H. Qvale 85,000 1.5 %
Ronald J. Volkman 1,000 *
FMR Corporation 421,500 (6) 7.3 %
All directors and executive officers
as a group (5 persons) 182,022 3.2 %
</TABLE>
- --------------
*Less than one percent (1%) of the outstanding Paired Common Stock.
(1) The address of all persons, other than FMR Corporation is 2600 S. Delaware
Street, P.O. Box 1117, San Mateo, CA 94403. The address of FMR Corporation
is 82 Devonshire Street, Boston, MA 02109.
(2) Unless otherwise indicated in the footnotes and subject to community
property laws where applicable, each named stockholder has sole voting and
investment power with respect to the shares of Paired Common Stock
beneficially owned by such stockholder.
(3) Includes 20,000 shares issuable upon exercise of outstanding stock options
exercisable within 60 days of March 17, 1997.
(4) Includes 24,000 shares held in a testamentary trust of which Mr. Gjerdrum
is a residual beneficiary and pursuant to which he will receive
approximately 8,000 shares upon the demise of his mother.
(5) Includes 4,000 shares owned by Mr. Harris' mother for which Mr. Harris
holds a power of attorney.
(6) A Schedule 13G filing dated February 10, 1997 was made by FMR
Corporation. The Schedule 13G indicates that FMR Corporation is a parent
holding company with sole voting power over 28,800 shares and sole
dispositive power over 421,500 shares.
(7) Percentages shown indicate what the total percentage beneficial ownership
of Paired Common Stock would be for each named stockholder if such holder,
but no other stockholder, whether or not named, exercised those of his or
her stock options that were exercisable on March 17, 1997, or which will
become exercisable 60 days thereafter.
CHANGES IN CONTROL
On October 31, 1996, Patriot American Hospitality, Inc. ("Patriot"), Cal Jockey
and Bay Meadows entered into a binding business combination agreement (the
"October 31, 1996 Agreement") pursuant to which the parties agreed to engage in
a business combination transaction. The parties, together with Patriot American
Hospitality Partnership, L.P., thereafter entered into an Agreement and Plan of
Merger, dated as of February 24, 1997 (the "Merger Agreement"), which by its
terms supersedes the October 31, 1996 Agreement and more fully details the
-35-
<PAGE> 36
transactions to be consummated by the parties. The Merger Agreement
contemplates that Patriot will merge with and into Cal Jockey, with Cal Jockey
being the surviving company. For a more complete description of the Patriot
transaction, see "Item 1. Business--The Patriot Transaction" hereto, which is
incorporated herein by reference.
BAY MEADOWS OPERATING COMPANY
SECURITY OWNERSHIP
The following table sets forth, as of March 17, 1997, the number of shares of
Paired Common Stock owned (i) by each director, (ii) by all directors and
executive officers as a group, and (iii) by all those known by Bay Meadows to
be beneficial owners of more than five percent (5%) of the Paired Common Stock,
together with the percentage of stock so owned.
<TABLE>
<CAPTION>
AMOUNT AND NATURE
OF BENEFICIAL PERCENTAGE
NAMES OF BENEFICIAL OWNER (1) OWNERSHIP (2) OF TOTAL(10)
<S> <C> <C>
Eugene F. Barsotti, Jr 55,634 (3)(4) *
F. Scott Gross 3,000 *
Greg S. Gunderson 49,636 *
John C. Harris 71,245 (5) 1.1 %
Lee R. Tucker 7,300 *
Anthony J. Zidich 5,000 *
F. Jack Liebau 96,667 (6) 1.0 %
Frank Trigeiro 7,500 (7) *
FMR Corporation 421,500 (8) 7.3 %
All Directors and executive officers
as a group (8 persons) 295,982 (9) 5.1 %
</TABLE>
- --------------
*Less than one percent (1%) of the outstanding Paired Common Stock.
(1) The address of all persons, other than FMR Corporation is c/o Bay Meadows
Operating Company, 2600 South Delaware Street, San Mateo, CA 94402. The
address of FMR Corporation is 82 Devonshire Street, Boston, MA 02109.
(2) Unless otherwise indicated in the footnotes and subject to community
property laws where applicable, each named stockholder has sole voting and
investment power with respect to the shares of Paired Common Stock
beneficially owned by such stockholder.
(3) Includes 43,692 shares held in a revocable trust, 100 shares held in an
Individual Retirement Account for the benefit of his wife, and 176 shares
held in an Individual Retirement Account for the benefit of Mr. Barsotti.
(4) Includes 11,666 shares issuable upon exercise of outstanding stock options
within 60 days of March 17, 1997.
(5) Includes 9,000 shares of Paired Common Stock held by Harris Farms, Inc.,
of which Mr. Harris is the sole shareholder.
(6) Includes 86,667 shares issuable upon exercise of outstanding stock options
exercisable within 60 days of March 17, 1997.
-36-
<PAGE> 37
(7) Includes 7,500 shares issuable upon exercise of outstanding stock options
exercisable within 60 days of March 17, 1997.
(8) A Schedule 13G filing dated February 10,1997 was made by FMR
Corporation. The Schedule 13G indicates that FMR Corporation is a parent
holding company with sole voting power over 28,800 shares and sole
dispositive power over 421,500 shares.
(9) Includes 94,167 shares issuable upon exercise of outstanding stock options
exercisable within 60 days of March 17, 1997.
(10) Percentages shown indicate what the total percentage beneficial ownership
of Paired Common Stock would be for each named stockholder if such holder,
but no other stockholder, whether or not named, exercised those of his
stock options that were exercisable on March 17, 1997, or which will
become exercisable 60 days thereafter.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information regarding certain relationships and related transactions is
included in Note 13 of Notes to the Financial Statements - Related Party
Transactions and incorporated herein by reference.
-37-
<PAGE> 38
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K.
(a) (1) Index to Financial Statements.
<TABLE>
<CAPTION>
PAGE IN
DESCRIPTION FORM 10-K
<S> <C>
Independent Auditors' Report F-1
Combined Balance Sheets of California Jockey Club and Bay Meadows Operating
Company and Subsidiary as of December 31, 1996 and 1995 F-2
Separate and Combined Statements of Income (Loss) of California Jockey Club and
Bay Meadows Operating Company and Subsidiary for the Years Ended
December 31, 1996, 1995, and 1994 F-3, F-4, F-5
Combined Statements of Stockholders' Equity of California Jockey Club and
Bay Meadows Operating Company and Subsidiary for the Years Ended
December 31, 1996, 1995 and 1994 F-6
Combined Statements of Cash Flows of California Jockey Club and Bay Meadows
Operating Company and Subsidiary for the Years Ended December 31, 1996,
1995 and 1994 F-7
Balance Sheets of California Jockey Club as of December 31, 1996 and 1995 F-8
Statements of Stockholders' Equity of California Jockey Club for the Years Ended
December 31, 1996, 1995 and 1994 F-9
Statements of Cash Flows of California Jockey Club for the Years Ended
December 31, 1996, 1995 and 1994 F-10
Consolidated Balance Sheets of Bay Meadows Operating Company and Subsidiary
as of December 31, 1996 and 1995 F-11
Consolidated Statements of Stockholders' Equity of Bay Meadows Operating
Company and Subsidiary for the Years Ended December 31, 1996, 1995 and 1994 F-12
Consolidated Statements of Cash Flows of Bay Meadows Operating Company and
Subsidiary for the Years Ended December 31, 1996, 1995 and 1994 F-13
Notes to Financial Statements F-14 - F-27
</TABLE>
(a) (2) Financial Statement Schedule. The financial statement schedules
listed below are filed with this report:
All schedules for which provision is made in the applicable rules and
regulations of the Securities and Exchange Commission are omitted because they
are not required under the related instructions or are not applicable or the
required information is shown in the financial statements or notes thereto.
-38-
<PAGE> 39
(a)(3) Exhibits
The exhibits listed in the accompanying Exhibit Index are filed as part of, or
incorporated by reference into, this Annual Report on Form 10-K.
-39-
<PAGE> 40
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrants have duly caused this report to be signed on their
behalf by the undersigned, thereunto duly authorized.
CALIFORNIA JOCKEY CLUB BAY MEADOWS OPERATING COMPANY
By: /s/ James M. Harris By: /s/ F. Jack Liebau
------------------------------- ------------------------------
James M. Harris F. Jack Liebau
President, Treasurer and Secretary President and
Chief Executive Officer
Date: March 31, 1997 Date: March 31, 1997
By: /s/ Frank Trigeiro
------------------------------
Frank Trigeiro
Vice President - Finance
Date: March 31, 1997
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrants in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Eugene F. Barsotti, Jr. Director, March 31, 1997
- ------------------------------
(Eugene F. Barsotti, Jr.) Bay Meadows Operating Company
/s/ James P. Conn Director, March 31, 1997
- ------------------------------
(James P. Conn) California Jockey Club
/s/ David M. Gjerdrum Director, March 31, 1997
- ------------------------------
(David M. Gjerdrum) California Jockey Club
/s/ Greg S. Gunderson Director, March 31, 1997
- ------------------------------
(Greg S. Gunderson) Bay Meadows Operating Company
-40-
<PAGE> 41
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ James M. Harris Director, President, Treasurer and Secretary, March 31, 1997
- --------------------------
(James M. Harris) California Jockey Club (Principal Executive
Officer and Principal Financial Officer and
Financial Accounting Officer)
/s/ F. Jack Liebau Director, March 31, 1997
- --------------------------
(F. Jack Liebau) Bay Meadows Operating Company (Principal
Executive Officer
/s/ Kjell H. Qvale Chairman, March 31, 1997
- --------------------------
(Kjell H. Qvale) California Jockey Club
/s/ Lee R. Tucker Director, March 31, 1997
- --------------------------
(Lee R. Tucker) Bay Meadows Operating Company
/s/ Ronald J. Volkman Director, March 31, 1997
- --------------------------
(Ronald J. Volkman) California Jockey Club
/s/ Anthony J. Zidich Director, March 31, 1997
- --------------------------
(Anthony J. Zidich) Bay Meadows Operating Company
</TABLE>
-41-
<PAGE> 42
INDEPENDENT AUDITORS' REPORT
Board of Directors and Stockholders
California Jockey Club
San Mateo, California
and
Board of Directors and Stockholders
Bay Meadows Operating Company
San Mateo, California
We have audited the accompanying balance sheets of California Jockey Club,
consolidated balance sheets of Bay Meadows Operating Company and subsidiary,
and combined balance sheets of California Jockey Club and Bay Meadows Operating
Company and subsidiary (the "Companies") as of December 31, 1996 and 1995, and
the related statements of income (loss), stockholders' equity and cash flows of
the respective entities for the each of the three years in the period ended
December 31, 1996. These financial statements are the responsibility of the
Companies' management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such financial statements present fairly, in all material
respects, the financial position of California Jockey Club, of Bay Meadows
Operating Company and subsidiary and of the combined Companies at December 31,
1996 and 1995, and the results of their operations and their cash flows for
each of the three years in the period ended December 31, 1996 in conformity
with generally accepted accounting principles.
As discussed in Note 2, the Companies have entered into a proposed merger
agreement with Patriot American Hospitality, Inc. ("Patriot"). The proposed
merger is subject to the approval by the shareholders of Patriot and the paired
shareholders of the Companies. Also, as discussed in Notes 7 and 8, certain
disputes between the Companies have not been resolved concerning stock options
for Cal Jockey Stock which Bay Meadows asserts were granted during 1996 and the
Master Lease Agreement between the Companies, which Bay Meadows asserts has
been extended.
DELOITTE & TOUCHE LLP
March 28, 1997
San Francisco, California
F-1
<PAGE> 43
CALIFORNIA JOCKEY CLUB AND
BAY MEADOWS OPERATING COMPANY AND SUBSIDIARY
<TABLE>
<CAPTION>
COMBINED BALANCE SHEETS
DECEMBER 31, 1996 AND 1995
(In thousands, except share and per share amounts)
- -----------------------------------------------------------------------------------------------------------------------------
DECEMBER 31,
--------------------------
ASSETS 1996 1995
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 2,027 $ 7,307
Securities available for sale (at fair value) 2,612 1,187
Securities held to maturity (at cost, fair value of $4,479 in 1996 and $7,076 in 1995) 4,463 7,077
Amounts held on deposit for Thoroughbred horse owners 3,056
Accounts receivable (net of allowance for doubtful accounts of $77 in 1996 and $82 in 1995) 527 2,442
Prepaid expenses and other current assets 525 377
---------- ----------
Total current assets 10,154 21,446
---------- ----------
PROPERTY, PLANT AND EQUIPMENT:
Land 691 691
Land held for sale 3,083 1,954
Racing plant 24,177 23,906
Tennis facility held for sale 308 308
Equipment and leasehold improvements 11,032 10,088
---------- ----------
Total 39,291 36,947
Accumulated depreciation and amortization (22,092) (20,759)
---------- ----------
Property, plant and equipment - net 17,199 16,188
---------- ----------
OTHER ASSETS (net of accumulated amortization of
$1,374 in 1996 and $1,221 in 1995) 96 223
---------- ----------
DEFERRED INCOME TAXES 227 78
---------- ----------
TOTAL $ 27,676 $ 37,935
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 1,328 $ 4,676
Accrued liabilities 1,983 1,530
Note payable 2,900
Accrued purses 1,014
Due to Thoroughbred horse owners 3,056
Income taxes payable 75
Uncashed pari-mutuel tickets and vouchers 4,477
---------- ----------
Total current liabilities 6,211 14,828
---------- ----------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Common Stock (paired shares), $.01 par value: authorized, 10,000,000 shares each;
issued and outstanding: 5,763,257 shares each in 1996 and 1995 116 116
Additional paid in capital 18,385 18,385
Retained earnings 1,750 4,817
Unrealized gain (loss) on securities available for sale 1,214 (211)
---------- ----------
Total stockholders' equity 21,465 23,107
---------- ----------
TOTAL $ 27,676 $ 37,935
========== ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-2
<PAGE> 44
CALIFORNIA JOCKEY CLUB AND
BAY MEADOWS OPERATING COMPANY AND SUBSIDIARY
<TABLE>
<CAPTION>
SEPARATE AND COMBINED STATEMENTS OF INCOME (LOSS)
YEAR ENDED DECEMBER 31, 1996
(In thousands, except share and per share amounts)
- -----------------------------------------------------------------------------------------------------------------------------------
BAY MEADOWS
CALIFORNIA OPERATING
JOCKEY COMPANY AND
CLUB SUBSIDIARY ELIMINATIONS COMBINED
<S> <C> <C> <C> <C>
REVENUES:
Pari-mutuel revenue $ 41,476 $ 41,476
Producer fees 683 683
Admissions, programs, parking and other racing income 5,228 5,228
Concession sales 3,038 3,038
Rental of racing facility $ 4,918 1,521 $ (4,918) 1,521
Interest and dividend income 484 182 (8) 658
Other income 10 1,344 (26) 1,328
--------- --------- --------- ---------
Total 5,412 53,472 (4,952) 53,932
--------- --------- --------- ---------
COSTS AND EXPENSES:
Purses and incentive awards 17,054 17,054
Commissions paid to guest tracks 2,614 2,614
Direct operating costs 20,950 20,950
Cost of concession sales 926 926
Depreciation and amortization 932 754 1,686
Racing facility rental 4,943 (4,918) 25
Marketing 1,436 1,436
General and administrative expense 1,068 3,019 (34) 4,053
Loss on disposal of fixed assets 145 145
Merger related costs 3,504 491 3,995
Legal expense 1,124 425 1,549
--------- --------- --------- ---------
Total 6,628 52,757 (4,952) 54,433
--------- --------- --------- ---------
INCOME (LOSS) BEFORE INCOME TAX PROVISION (1,216) 715 (501)
INCOME TAX PROVISION 260 260
--------- --------- --------- ---------
NET INCOME (LOSS) $ (1,216) $ 455 $ - $ (761)
========= ========= ========= =========
NET INCOME (LOSS) PER SHARE $(.21) $.08 $(.13)
========= ========= =========
WEIGHTED AVERAGE NUMBER OF COMMON
SHARES OUTSTANDING 5,763,257 5,763,257 5,763,257
========= ========= =========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-3
<PAGE> 45
CALIFORNIA JOCKEY CLUB AND
BAY MEADOWS OPERATING COMPANY AND SUBSIDIARY
<TABLE>
<CAPTION>
SEPARATE AND COMBINED STATEMENTS OF INCOME
YEAR ENDED DECEMBER 31, 1995
(In thousands, except share and per share amounts)
- -------------------------------------------------------------------------------------------------------------------------
BAY MEADOWS
CALIFORNIA OPERATING
JOCKEY COMPANY AND
CLUB SUBSIDIARY ELIMINATIONS COMBINED
<S> <C> <C> <C> <C>
REVENUES:
Pari-mutuel revenue $ 38,955 $ 38,955
Producer fees 704 704
Admissions, programs, parking and other racing income 5,164 5,164
Concession sales 2,492 2,492
Rental of racing facility $ 4,743 1,510 $ (4,743) 1,510
Interest and dividend income 487 190 677
Other income 11 1,241 (45) 1,207
--------- ---------- --------- ----------
Total 5,241 50,256 (4,788) 50,709
--------- ---------- --------- ----------
COSTS AND EXPENSES:
Purses and incentive awards 15,746 15,746
Commissions paid to guest tracks 2,548 2,548
Direct operating costs 19,403 19,403
Cost of concession sales 856 856
Depreciation and amortization 935 680 1,615
Racing facility rental 4,762 (4,743) 19
Marketing 1,401 1,401
General and administrative expense 503 2,896 (45) 3,354
Loss on disposal of fixed assets 99 99
Card club costs 666 666
Legal expense 80 263 343
--------- ---------- --------- ----------
Total 1,518 49,320 (4,788) 46,050
--------- ---------- --------- ----------
INCOME BEFORE INCOME TAX PROVISION 3,723 936 4,659
INCOME TAX PROVISION 459 459
--------- ---------- --------- ----------
NET INCOME $ 3,723 $ 477 $ - $ 4,200
========= ========== ========= ==========
NET INCOME PER SHARE $.65 $.08 $.73
========= ========== ==========
WEIGHTED AVERAGE NUMBER OF COMMON
SHARES OUTSTANDING 5,759,668 5,759,668 5,759,668
========= ========== ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-4
<PAGE> 46
CALIFORNIA JOCKEY CLUB AND
BAY MEADOWS OPERATING COMPANY AND SUBSIDIARY
SEPARATE AND COMBINED STATEMENTS OF INCOME
YEAR ENDED DECEMBER 31, 1994
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
BAY MEADOWS
CALIFORNIA OPERATING
JOCKEY COMPANY AND
CLUB SUBSIDIARY ELIMINATIONS COMBINED
<S> <C> <C> <C> <C>
REVENUES:
Pari-mutuel revenue $ 40,161 $ 40,161
Producer fees 669 669
Admissions, programs, parking and other racing income 5,399 5,399
Concession sales 2,490 2,490
Rental of racing facility $ 4,777 1,555 $(4,777) 1,555
Interest and dividend income 381 81 462
Other income 18 832 (11) 839
--------- --------- ------- ---------
Total 5,176 51,187 (4,788) 51,575
--------- --------- ------- ---------
COSTS AND EXPENSES:
Purses and incentive awards 16,784 16,784
Commissions paid to guest tracks 2,684 2,684
Direct operating costs 19,059 19,059
Cost of concession sales 715 715
Depreciation and amortization 956 724 1,680
Racing facility rental 4,800 (4,777) 23
Marketing 1,274 1,274
General and administrative expense 397 2,945 (11) 3,331
Loss on disposal of fixed assets 162 503 665
Card club costs 209 209
Legal expense 41 350 391
--------- --------- ------- ---------
Total 1,556 50,047 (4,788) 46,815
--------- --------- ------- ---------
INCOME BEFORE INCOME TAX PROVISION 3,620 1,140 4,760
INCOME TAX PROVISION 548 548
--------- --------- ------- ---------
NET INCOME $ 3,620 $ 592 $ -- $ 4,212
========= ========= ======= =========
NET INCOME PER SHARE $.63 $.10 $.73
==== ==== ====
WEIGHTED AVERAGE NUMBER OF COMMON
SHARES OUTSTANDING 5,753,257 5,753,257 5,753,257
========= ========= =========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-5
<PAGE> 47
CALIFORNIA JOCKEY CLUB AND
BAY MEADOWS OPERATING COMPANY AND SUBSIDIARY
<TABLE>
<CAPTION>
COMBINED STATEMENTS OF STOCKHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(In thousands, except per share amounts)
- -------------------------------------------------------------------------------------------------------------------------
UNREALIZED
GAIN (LOSS) ON
ADDITIONAL SECURITIES
COMMON PAID IN RETAINED AVAILABLE
STOCK CAPITAL EARNINGS FOR SALE TOTAL
<S> <C> <C> <C> <C> <C>
BALANCE AT JANUARY 1, 1994 $ 116 $ 18,262 $ 3,603 $ 21,981
NET INCOME 4,212 4,212
DIVIDENDS, $.60 PER PAIRED SHARE (3,452) (3,452)
UNREALIZED LOSS ON SECURITIES
AVAILABLE FOR SALE $ (23) (23)
------- --------- -------- ---------- ---------
BALANCE AT DECEMBER 31, 1994 116 18,262 4,363 (23) 22,718
NET INCOME 4,200 4,200
DIVIDENDS, $.65 PER PAIRED SHARE (3,746) (3,746)
STOCK OPTIONS EXERCISED 123 123
UNREALIZED LOSS ON SECURITIES
AVAILABLE FOR SALE $ (188) (188)
------- --------- -------- ---------- ---------
BALANCE AT DECEMBER 31, 1995 116 18,385 4,817 (211) 23,107
NET LOSS (761) (761)
DIVIDENDS, $.40 PER PAIRED SHARE (2,306) (2,306)
UNREALIZED GAIN ON SECURITIES
AVAILABLE FOR SALE 1,425 1,425
------- --------- -------- ---------- ---------
BALANCE AT DECEMBER 31, 1996 $ 116 $ 18,385 $ 1,750 $ 1,214 $ 21,465
======= ========= ======== ========== =========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-6
<PAGE> 48
CALIFORNIA JOCKEY CLUB AND
BAY MEADOWS OPERATING COMPANY AND SUBSIDIARY
<TABLE>
<CAPTION>
COMBINED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(IN THOUSANDS)
- ------------------------------------------------------------------------------------------------------------------------
1996 1995 1994
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net income (loss) $ (761) $ 4,200 $ 4,212
Adjustments to reconcile net income (loss) to net cash provided by (used in)
operating activities:
Depreciation and amortization 1,686 1,615 1,680
Deferred income taxes (149) (121) 43
Loss on disposal of fixed assets 145 99 665
Changes in operating assets and liabilities:
Accounts receivable 1,915 (1,091) 84
Amounts held on deposit for Thoroughbred horse owners 3,056 (53) (214)
Income taxes receivable and payable (75) (297) 394
Prepaid expenses and other current assets (174) (180) 175
Accounts payable (3,348) 1,513 2,254
Accrued liabilities 453 (1,686) 260
Accrued purses (1,014) (836) 970
Due to Thoroughbred horse owners (3,056) 53 214
Uncashed pari-mutuel tickets and vouchers (4,477) 2,056 839
------- ------- ------
Net cash provided by (used in) operating activities (5,799) 5,272 11,576
------- ------- ------
INVESTING ACTIVITIES:
Purchase of securities held to maturity (13,461) (11,005) (1,398)
Maturities of securities held to maturity 16,075 10,498 1,250
Purchase of property, plant and equipment (2,689) (3,191) (2,054)
------- ------- ------
Net cash used in investing activities (75) (3,698) (2,202)
------- ------- ------
FINANCING ACTIVITIES:
Proceeds from notes payable 6,900
Repayment of notes payable (4,000) (1,475)
Stock options exercised 123
Dividends on Common Stock (2,306) (3,746) (3,452)
------- ------- ------
Net cash provided by (used in) financing activities 594 (3,623) (4,927)
------- ------- ------
(DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS (5,280) (2,049) 4,447
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 7,307 9,356 4,909
------- ------- ------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 2,027 $ 7,307 $ 9,356
======= ======= ======
NONCASH INVESTING ACTIVITY - Accrued but unpaid purchase
of property, plant and equipment $ 170
========
OTHER CASH FLOW INFORMATION:
Interest paid $ 118 $ 53 $ 88
Income taxes paid 955 65 301
Income taxes refunded 236 189
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-7
<PAGE> 49
CALIFORNIA JOCKEY CLUB
<TABLE>
<CAPTION>
BALANCE SHEETS
DECEMBER 31, 1996 AND 1995
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
- -------------------------------------------------------------------------------------------------------------
1996 1995
ASSETS
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 1,138 $ 989
Securities available for sale (at fair value) 2,612 1,187
Securities held to maturity (at cost, fair value of $4,479 in 1996
and $7,076 in 1995) 4,463 7,077
Accounts receivable 36 7
Receivable from Bay Meadows Operating Company 2,332 569
Prepaid expenses 3
-------- ---------
Total current assets 10,584 9,829
-------- ---------
PROPERTY, PLANT AND EQUIPMENT:
Land 691 691
Land held for sale 3,083 1,954
Racing plant 24,177 23,906
Tennis facility 308 308
Equipment 460 456
-------- ---------
Total 28,719 27,315
Accumulated depreciation (15,929) (14,997)
-------- ---------
Property, plant and equipment - net 12,790 12,318
-------- ---------
TOTAL $ 23,374 $ 22,147
======== =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 184 $ 129
Accrued liabilities 509 140
Note payable 2,900
-------- ---------
Total current liabilities 3,593 269
======== =========
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Common Stock, $.01 par value, authorized 10,000,000 shares;
issued and outstanding 5,763,257 shares in 1996 and 5,763,257 shares in 1995 58 58
Additional paid in capital 17,597 17,597
Retained earnings 912 4,434
Unrealized gain (loss) on securities available for sale 1,214 (211)
-------- ---------
Total stockholders' equity 19,781 21,878
-------- ---------
TOTAL $ 23,374 $ 22,147
======== =========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-8
<PAGE> 50
CALIFORNIA JOCKEY CLUB
<TABLE>
<CAPTION>
STATEMENTS OF STOCKHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
- ---------------------------------------------------------------------------------------------------------
UNREALIZED
GAIN (LOSS) ON
ADDITIONAL SECURITIES
COMMON PAID IN RETAINED AVAILABLE
STOCK CAPITAL EARNINGS FOR SALE TOTAL
<S> <C> <C> <C> <C> <C>
BALANCE AT JANUARY 1, 1994 $ 58 $ 17,478 $ 4,289 $ 21,825
NET INCOME 3,620 3,620
DIVIDENDS, $.60 PER SHARE (3,452) (3,452)
UNREALIZED LOSS ON SECURITIES
AVAILABLE FOR SALE $ (23) (23)
-------- ---------- ---------- --------- ----------
BALANCE AT DECEMBER 31, 1994 58 17,478 4,457 (23) 21,970
NET INCOME 3,723 3,723
DIVIDENDS, $.65 PER SHARE (3,746) (3,746)
STOCK OPTIONS EXERCISED 119 119
UNREALIZED LOSS ON SECURITIES
AVAILABLE FOR SALE $ (188) (188)
-------- ---------- ---------- --------- ----------
BALANCE AT DECEMBER 31, 1995 58 17,597 4,434 (211) 21,878
NET LOSS (1,216) (1,216)
DIVIDENDS, $.40 PER SHARE (2,306) (2,306)
UNREALIZED GAIN ON SECURITIES
AVAILABLE FOR SALE 1,425 1,425
-------- ---------- ---------- --------- ----------
BALANCE AT DECEMBER 31, 1996 $ 58 $ 17,597 $ 912 $ 1,214 $ 19,781
======== ========== ========== ========= ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-9
<PAGE> 51
CALIFORNIA JOCKEY CLUB
<TABLE>
<CAPTION>
STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(In thousands)
- ------------------------------------------------------------------------------------------------------------------------------------
1996 1995 1994
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net income (loss) $ (1,216) $ 3,723 $ 3,620
Adjustments to reconcile net income (loss) to net cash
provided by (used in) operating activities:
Depreciation 932 935 956
Loss on disposal of fixed assets 162
Changes in operating assets and liabilities:
Accounts receivable (29) 46 49
Receivable from Bay Meadows Operating Company (1,763) 1,422 (1,670)
Prepaid expenses and other assets (3) 32 (9)
Accounts payable 55 34 67
Accrued liabilities 369 76 3
-------- -------- --------
Net cash provided by (used in) operating activities (1,655) 6,268 3,178
-------- -------- --------
INVESTING ACTIVITIES:
Purchase of securities held to maturity (13,461) (11,005) (1,398)
Maturities of securities held to maturity 16,075 10,498 1,250
Purchase of property, plant and equipment (1,404) (1,557) (945)
-------- -------- --------
Net cash provided by (used in) investing activities 1,210 (2,064) (1,093)
-------- -------- --------
FINANCING ACTIVITIES:
Proceeds of note payable 2,900
Stock options exercised 119
Dividends on common stock (2,306) (3,746) (3,452)
-------- -------- --------
Net cash provided by (used in) financing activities 594 (3,627) (3,452)
-------- -------- --------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 149 577 (1,367)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 989 412 1,779
-------- -------- --------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 1,138 $ 989 $ 412
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-10
<PAGE> 52
BAY MEADOWS OPERATING COMPANY AND SUBSIDIARY
<TABLE>
<CAPTION>
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1996 AND 1995
(In thousands, except share and per share amounts)
- ------------------------------------------------------------------------------------------------------------------------------------
1996 1995
ASSETS
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 889 $ 6,318
Amounts held on deposit for Thoroughbred horse owners 3,056
Accounts receivable (net of allowance for doubtful accounts of $77 in 1996 and $82 in 1995) 491 2,435
Prepaid expenses and other current assets 522 377
-------- --------
Total current assets 1,902 12,186
-------- --------
PROPERTY, PLANT AND EQUIPMENT:
Equipment and leasehold improvements 10,572 9,631
Accumulated depreciation and amortization (6,163) (5,761)
-------- --------
Property, plant and equipment - net 4,409 3,870
-------- --------
OTHER ASSETS (net of accumulated amortization of $1,374 in 1996 and $1,221 in 1995) 96 223
-------- --------
DEFERRED INCOME TAXES 227 78
-------- --------
TOTAL $ 6,634 $ 16,357
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 1,144 $ 4,547
Accrued liabilities 1,474 1,390
Accrued purses 1,014
Due to Thoroughbred horse owners 3,056
Payable to California Jockey Club 2,332 569
Income taxes payable 75
Uncashed pari-mutuel tickets and vouchers 4,477
-------- --------
Total current liabilities 4,950 15,128
-------- --------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Common Stock .01 par value authorized 10,000,000 shares; issued and outstanding:
5,763,257 shares in 1996 and 1995 58 58
Additional paid in capital 788 788
Retained earnings 838 383
-------- --------
Total stockholders' equity 1,684 1,229
-------- --------
TOTAL $ 6,634 $ 16,357
======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-11
<PAGE> 53
BAY MEADOWS OPERATING COMPANY AND SUBSIDIARY
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(In thousands, except per share amounts)
- -------------------------------------------------------------------------------
ADDITIONAL
COMMON PAID IN RETAINED
STOCK CAPITAL EARNINGS TOTAL
<S> <C> <C> <C> <C>
BALANCE AT JANUARY 1, 1994 $ 58 $ 784 $ (686) $ 156
NET INCOME 592 592
------ ------ ------ ------
BALANCE AT DECEMBER 31, 1994 58 784 (94) 748
STOCK OPTIONS EXERCISED 4 4
NET INCOME 477 477
------ ------ ------ ------
BALANCE AT DECEMBER 31, 1995 58 788 383 1,229
NET INCOME 455 455
------ ------ ------ ------
BALANCE AT DECEMBER 31, 1996 $ 58 $ 788 $ 838 $1,684
====== ====== ====== ======
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-12
<PAGE> 54
BAY MEADOWS OPERATING COMPANY AND SUBSIDIARY
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(In thousands)
- -------------------------------------------------------------------------------------------------------
1996 1995 1994
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net income $ 455 $ 477 $ 592
Adjustments to reconcile net income to net cash
provided by (used in) operating activities:
Depreciation and amortization 754 680 724
Deferred income taxes (149) (121) 43
Loss on disposal of fixed assets 145 99 503
Changes in operating assets and liabilities:
Accounts receivable 1,944 (1,137) 35
Amounts held on deposit for Thoroughbred horse owners 3,056 (53) (214)
Income taxes receivable and payable (75) (297) 394
Prepaid expenses and other assets (171) (212) 184
Accounts payable (3,403) 1,479 2,187
Accrued liabilities 84 (1,762) 257
Accrued purses (1,014) (836) 970
Due to Thoroughbred horse owners (3,056) 53 214
Payable to California Jockey Club 1,763 (1,422) 1,670
Uncashed pari-mutuel tickets and vouchers (4,477) 2,056 839
--------- --------- ---------
Net cash (used in) provided by operating activities (4,144) (996) 8,398
--------- --------- ---------
INVESTING ACTIVITIES
Purchase of property, plant and equipment (1,285) (1,634) (1,109)
--------- --------- ---------
FINANCING ACTIVITIES:
Proceeds from note payable 4,000
Repayment of note payable (4,000) (1,475)
Stock options exercised 4
--------- --------- ---------
Net cash (used in) provided by financing activities - 4 (1,475)
--------- --------- ---------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (5,429) (2,626) 5,814
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 6,318 8,944 3,130
--------- --------- ---------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 889 $ 6,318 $ 8,944
--------- --------- ---------
NONCASH INVESTING ACTIVITY - Accrued but unpaid purchase of
property, plant and equipment $ 170
---------
OTHER CASH FLOW INFORMATION:
Interest paid $ 118 $ 53 $ 88
Income taxes paid 955 765 301
Income taxes refunded 236 189
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-13
<PAGE> 55
CALIFORNIA JOCKEY CLUB AND
BAY MEADOWS OPERATING COMPANY AND SUBSIDIARY
NOTES TO FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
- --------------------------------------------------------------------------------
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION - California Jockey Club ("Cal Jockey") is a real
estate investment trust which owns the Bay Meadows Racecourse and other
real property located in San Mateo, California. Cal Jockey leases the
racing facility to Bay Meadows Operating Company ("Bay Meadows"). The
shares of Cal Jockey and Bay Meadows are paired one-for-one and can only
be transferred in units. The Combined Financial Statements include the
accounts of both Cal Jockey and Bay Meadows. Bay Meadows is engaged in
operating and subleasing the facility, and operates a portion of the food
and beverage concessions. All significant inter-company transactions and
accounts have been eliminated in consolidation and combination. Certain
prior year amounts have been reclassified to conform to the 1996
presentation. The Companies' fiscal year ends December 31. At December 31,
1995 and 1994 Bay Meadows was conducting a Thoroughbred horse racing meet.
At December 31, 1996 the Thoroughbred horse racing meet had been
completed. Accordingly, certain assets and liabilities related to the
racing meet had been settled as of December 31, 1996.
In order to conduct a Thoroughbred horse racing meet and to act as a
satellite facility, Bay Meadows needs to secure, on an annual basis, a
license from the California Horse Racing Board ("CHRB"). The issuance of
this annual license to Bay Meadows is essential for it to continue to
conduct Thoroughbred horse racing meets at Bay Meadows Racecourse.
Although Bay Meadows has received a license for the 1997 race meet, there
is no assurance that Bay Meadows will continue to receive this annual
license. Bay Meadows has been granted an annual license each year since
1934.
Thoroughbred racing is highly regulated by state law and the number of
weeks available for racing in Northern California is subject to statute.
The statute dictates the number of racing weeks allowed in the Northern
California Racing Zone. There is no assurance that competition for racing
weeks will not affect the allocation of racing weeks to Bay Meadows in the
future.
USE OF ESTIMATES - The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from
those estimates.
PROPERTY, PLANT AND EQUIPMENT - Property is carried at cost. At December
31, 1996, land and land held for sale was $3,774,000. Land held for sale
includes $2,242,000 in costs incurred to develop the land including zoning
and engineering costs. Additionally, the tennis facility held for sale is
subject to an agreement to sell the property to Public Storage, Inc. for
approximately $2,200,000. (See Note 11 - Proposed Land Sales). No
assurance can be gained that activities will ultimately result in the
development or sale of such land. Depreciation and amortization are
computed on the straight-line method over the estimated useful lives of 30
years for plant and from 3 to 20 years for equipment. Leasehold
improvements are amortized over their useful lives from 3 to 20 years.
Expenditures for property additions and betterments are added to the
property accounts, while those for maintenance and repairs are expensed as
incurred.
F-14
<PAGE> 56
On January 1, 1996, the Companies adopted SFAS No. 121, "Accounting for
the Impairment of Long-Lived Assets and Long-Lived Assets to be Disposed
Of". SFAS No. 121 establishes recognition and measurement criteria for
impairment losses whenever events or changes in circumstances indicate
that the carrying value of assets may not be recoverable. Prior to the
adoption of SFAS No. 121, assets were assessed for impairment based on
their replacement costs or market value, or the undiscounted future cash
flows expected to be generated by the assets. Additionally, assets are
assessed for impairment when they are taken out of service or replaced.
Such replacements resulted in write-downs for the Companies of $145,000,
$99,000 and $665,000 in 1996, 1995 and 1994, respectively. Because the
impairment criteria required under SFAS No. 121 are substantially similar
to those previously used by the Companies, the adoption of SFAS No. 121
did not have a material effect on the financial statements.
CASH AND CASH EQUIVALENTS - consist of demand deposits held in banks,
money market funds and certificates of deposit with maturities of three
months or less at the date of acquisition.
REVENUE - Bay Meadows records Pari-mutuel revenues and Admissions, parking
and other racing income associated with Thoroughbred horse racing at Bay
Meadows Racetrack daily based upon cash received. Costs and expenses
associated with Thoroughbred horse racing revenues, including purses and
incentive awards, commissions paid to guest tracks, and direct operating
costs are charged against income in those periods in which they
Thoroughbred horse racing revenues are recognized. Other costs and
expenses are recognized as they are incurred throughout the year.
LEGAL EXPENSES - Legal expenses include all attorney fees incurred by the
Companies with the exception of fees incurred in conjunction with the
proposed merger agreement (see Note 2 - Proposed Merger Agreement). Such
amounts are included in Merger Related Costs.
SECURITIES AVAILABLE FOR SALE AND SECURITIES HELD TO MATURITY - The
Companies classify investments into three categories: held to maturity,
trading, and available for sale. The Companies have no trading securities.
Securities which the Company has the ability and intent to hold to
maturity are recorded at cost with any discount or premium amortized using
a method that is not materially different from the interest method.
Securities held to maturity consist of certificates of deposit and
government securities with maturities greater than three months when
acquired.
Securities available for sale are reported at fair value with net
unrealized gains and losses excluded from earnings and reported as a
separate component of stockholders' equity. Securities available for sale
consist of investments in the common stock of a publicly traded Real
Estate Investment Trust (See Note 13 - Related Party Transactions).
AMOUNTS HELD ON DEPOSIT FOR THOROUGHBRED HORSE OWNERS - Amounts represent
purses, net of entry fees, collected by Bay Meadows and placed on deposit
for the benefit of certain Thoroughbred owners, while Bay Meadows conducts
its racing meet. These amounts and 55% of the interest earned thereon,
both of which are not available for Bay Meadows' purposes, are the
property of such Thoroughbred owners and are physically segregated in
accordance with the agreement.
OTHER ASSETS - principally include amounts capitalized and amortized over
an eight-year useful life relating to the purchase of racing rights.
STOCK-BASED COMPENSATION - The Companies account for stock-based awards to
employees using the intrinsic value method in accordance with APB No. 25,
Accounting for Stock Issued to Employees. The Companies have adopted the
disclosure requirements of SFAS No. 123 "Accounting for Stock Based
Compensation" (See Note 7 - Stock Option Plan).
EARNINGS PER SHARE - Earnings per share have been computed by dividing net
earnings by the weighted average number of common shares outstanding.
F-15
<PAGE> 57
2. PROPOSED MERGER AGREEMENT
On October 31, 1996, Cal Jockey and Bay Meadows entered into a
merger agreement with Patriot American Hospitality, Inc. ("Patriot").
The acquisition agreement was approved unanimously by the Boards of
Patriot, Cal Jockey, and Bay Meadows and is subject to approval by the
shareholders of each of Patriot, Cal Jockey and Bay Meadows. The parties,
together with Patriot American Hospitality Partnership, L.P., a limited
partnership (the "Patriot Partnership"), thereafter entered into an
Agreement and Plan of Merger, dated as of February 24, 1997 (the "Merger
Agreement"), which by its terms supersedes the October 31, 1996 Agreement
and more fully details the transactions to be consummated by the parties.
Pursuant to the Merger Agreement, Patriot will merge with and into Cal
Jockey, with Cal Jockey being the surviving company. In connection with
the Merger, Cal Jockey's name will be changed to "Patriot American
Hospitality, Inc." ("New Patriot REIT") and Bay Meadows' name will be
changed to "Patriot American Hospitality Operating Company" ("New Patriot
Operating Company"). The shareholders of Cal Jockey and Bay Meadows will
have the option either to tender each of their paired shares for $33.00 in
cash or to retain their paired shares, which will then remain outstanding
after the Merger and will represent the same number of paired shares of
New Patriot REIT Common Stock and New Patriot Operating Company Common
Stock.
Patriot and PaineWebber Incorporated ("PaineWebber") have agreed in
principle that following the close of the Merger, an affiliate of
PaineWebber will purchase substantially all of the land owned by Cal
Jockey, including the land subject to the Franklin Agreement and the
Iacocca Agreement, for a purchase price of $83,000,000. New Patriot REIT
would retain ownership of the improvements located on the land.
Simultaneously with the consummation of such purchase, the PaineWebber
affiliate and New Patriot REIT would enter into a ground lease covering
that portion of land on which the Racecourse is situated. New Patriot REIT
would then sublease the Racecourse land and related improvements to New
Patriot Operating Company.
In connection with the Proposed PaineWebber Land Sale, New Patriot REIT
would assign all of its rights and benefits under existing leases,
contracts, permits and entitlements to the PaineWebber affiliate, and the
PaineWebber affiliate would assume all of New Patriot REIT's development,
lease and contract obligations.
Pursuant to the Merger Agreement, Patriot loaned $2,900,000 to Cal Jockey
(see Note 6) for payment of the breakup fee due upon termination of the
prior merger agreement with Hudson Bay Partners, LP ("Hudson Bay").
Patriot will be entitled to receive a $5,000,000 termination fee and the
repayment of the $2,900,000 loan for the Hudson Bay termination fee in the
event the Cal Jockey and Bay Meadows Boards of Directors receive and
accept a higher unsolicited offer. All merger related costs have been
expensed as incurred. Such amounts include the aforementioned breakup fee
as well as legal and accounting costs related to the proposed merger
agreements. These costs are shown as merger related costs for purposes of
disclosure on the separate and combined statements of income (loss).
3. SECURITIES AVAILABLE FOR SALE
The following table is a summary of securities available for sale at
December 31, 1996 and 1995 (in thousands, except share amount):
<TABLE>
<CAPTION>
1996
------------------------------------------
UNREALIZED UNREALIZED MARKET
COST GAIN LOSS VALUE
<S> <C> <C> <C> <C>
Santa Anita Realty Enterprises (100,000 common shares) $1,398 $1,214 $2,612
</TABLE>
F-16
<PAGE> 58
<TABLE>
<CAPTION>
1995
------------------------------------------
UNREALIZED UNREALIZED MARKET
COST GAIN LOSS VALUE
<S> <C> <C> <C> <C>
Santa Anita Realty Enterprises (100,000 common shares) $1,398 $ (211) $ 1,187
</TABLE>
These securities have no maturity.
4. SECURITIES HELD TO MATURITY
The following table is a summary of securities held to maturity at
December 31, 1996 and 1995 (in thousands):
<TABLE>
<CAPTION>
1996
------------------------------------------
UNREALIZED UNREALIZED MARKET
COST GAIN LOSS VALUE
<S> <C> <C> <C> <C>
Certificates of deposit $ 500 $ 500
U.S. Treasury obligations 3,963 $ 16 -- 3,979
-------- -------- -------- --------
Total $ 4,463 $ 16 -- $ 4,479
======== ======== ======== ========
</TABLE>
These securities mature in 1997.
<TABLE>
<CAPTION>
1995
------------------------------------------
UNREALIZED UNREALIZED MARKET
COST GAIN LOSS VALUE
<S> <C> <C> <C> <C>
Certificates of deposit $ 300 $ (1) $ 299
U.S. Treasury obligations 6,777 $ 1 (1) 6,777
-------- -------- -------- --------
Total $ 7,077 $ 1 $ (2) $ 7,076
======== ======== ======== ========
</TABLE>
These securities matured in 1996.
5. INCOME TAXES
Cal Jockey intends to continue to qualify as a real estate investment
trust as defined in the Internal Revenue Code and, as such, will not be
taxed on that portion of its taxable income which is distributed to
stockholders. Dividends to stockholders are determined by taxable income
which may differ from financial accounting income. Dividends paid during
the years ended December 31, 1996, 1995 and 1994, were taxable as ordinary
income to stockholders.
F-17
<PAGE> 59
The income tax provision of Bay Meadows consists of the following (in
thousands):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------
1996 1995 1994
<S> <C> <C> <C>
Current:
Federal $ 311 $ 482 $ 379
State 98 98 126
----- ----- -----
Total Current 409 580 505
----- ----- -----
Deferred:
Federal (79) (99) 35
State (70) (22) 8
----- ----- -----
Total Deferred (149) (121) 43
----- ----- -----
Total $ 260 $ 459 $ 548
===== ===== =====
</TABLE>
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components of
Bay Meadows' deferred tax liabilities and assets, are as follows (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
---------------
1996 1995
<S> <C> <C>
Deferred tax assets:
Book over tax depreciation $ 107 $ 167
Book over tax amortization 164 143
Book expenses not yet deductible 171 67
Other 37 25
----- -----
Total deferred tax assets 479 402
Valuation allowance for deferred tax assets (120) (264)
----- -----
Net deferred tax assets 359 138
----- -----
Deferred tax liabilities:
Tax over book amortization 10
Other 132 50
----- -----
Total deferred tax liabilities 132 60
----- -----
Net deferred tax asset $ 227 $ 78
===== =====
</TABLE>
The change in the valuation allowance is due to a reassessment of various
deferred tax assets as a result of continued earnings at Bay Meadows.
F-18
<PAGE> 60
The reasons for the difference between total tax expense and the amount
computed by applying the statutory Federal income tax rate of 34% to income
before income taxes, are as follows (in thousands):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------
1996 1995 1994
<S> <C> <C> <C>
Tax at statutory rate $ 243 $ 318 $ 388
State income taxes, net of Federal tax benefit 43 57 70
Non deductible expenses 61 189
Impact of rate change on deferred taxes 10 (113)
Increase (decrease) in valuation allowance (144) 74 183
Other 47 (66) (93)
----- ----- -----
Total $ 260 $ 459 $ 548
===== ===== =====
</TABLE>
6. NOTES PAYABLE
Pursuant to the Merger Agreement (see Note 2), Patriot provided Cal
Jockey with a $2,900,000 million loan to be used in settlement of a
termination fee to Hudson Bay as required by the agreement with Hudson
Bay. At December 31, 1996, the note payable to Patriot is $2,900,000
million bearing interest of 5% per annum. Principal and accrued interest
is due the earlier of June 30, 1997 or termination of the Merger
Agreement.
On March 10, 1997, Bay Meadows signed a loan agreement with a bank for a
$2,500,000 line of credit with interest at the bank's reference rate. In
connection with the execution of the credit agreement, Cal Jockey has
agreed to provide collateral, and to continue to guarantee the line of
credit. Bay Meadows has agreed to pay Cal Jockey a fee equal to .25% per
annum of the value of the collateral that secures the line of credit. The
line of credit agreement expires on February 1, 1998. During 1996 Bay
Meadows had a similar line of credit in which Bay Meadows drew
$4,000,000. That line of credit was canceled and repaid in full on
October 29, 1996.
7. STOCK OPTION PLAN
In May 1988, the stockholders of Bay Meadows approved the 1988 Stock
Option Plan. The stock options have terms not exceeding ten years and
exercise prices not less than the fair market value of the paired shares
on the date the options were granted. Generally the right to exercise the
options either vests immediately or over a three-year period on an annual
basis, with the vesting date determined at the time of grant. The stock
options are issued pursuant to option agreements providing that all
options will become vested upon a change in control of Bay Meadows.
Accordingly, all options will become exercisable when the Merger is
consummated. 250,000 shares of the Companies' Common Stock have been
reserved for issuance under the 1988 plan, with 180,000 available for
future option grants at December 31, 1996. As additional consideration
for Bay Meadows entering into the 1993 lease (see Note 8), Cal Jockey
agreed to grant Bay Meadows options to acquire 51,000 unpaired shares of
Cal Jockey unpaired Common Stock. Such options can be exercised by Bay
Meadows only if and to the extent any employees of Bay Meadows to whom
stock options have been granted as of December 31, 1992, exercise their
respective options. The purchase price shall be 97% of the stock option
price payable by the employee exercising his or her option and shall be
payable only at such time the option is exercised.
During 1993 and 1994 Bay Meadows issued options, outside the 1988 Plan,
to purchase 50,000 shares at a weighted average exercise price of $12.98
per share to an officer of Bay Meadows that are exercisable at December
31, 1996.
F-19
<PAGE> 61
If Bay Meadows desires to grant additional options to its employees, Cal Jockey
may grant additional options to Bay Meadows. Bay Meadows has agreed to a similar
reciprocal agreement should Cal Jockey desire to grant stock options to its
employees. As of December 31, 1996, Cal Jockey has granted options to Bay
Meadows of which 107,500 are outstanding.
Bay Meadows has granted options for 162,000 paired shares to persons who are or
were Bay Meadows Officers and Employees. Bay Meadows maintains that Cal Jockey
has agreed to and is obligated to provide stock options to Bay Meadows for the
purchase of 162,000 shares of Cal Jockey stock to match the options granted by
Bay Meadows. Cal Jockey has acknowledged agreement to provide options to
purchase 107,500 shares of Cal Jockey stock to back up the option grants by Bay
Meadows. The difference relates to options for paired shares which Bay Meadows
granted to certain Bay Meadows Officers and Employees in 1996. In order to show
the greatest possible dilution, the above disclosures assume that the options
were granted by both Companies. However, there has been no resolution of this
difference and no determination has been made as to the possible effects, which
could be material, of the ultimate resolution of this uncertainty on the
accompanying financial statements if is determined that the options for all or
a portion of the difference were not granted in 1996 by Cal Jockey.
Accordingly, no amounts have been recorded as of December 31, 1996 for any
additional compensation expense or contingent liabilities that might result
from the ultimate resolution of this matter.
Option activity under the Plan is as follows:
<TABLE>
<CAPTION>
WEIGHTED
NUMBER AVERAGE
OF EXERCISE
SHARES PRICE
<S> <C> <C>
Outstanding, January 1 and December 31, 1994 (24,668
exercisable at a weighted average price of $12.25) 51,000 12.59
Granted (Weighted average fair value of $4.10) 35,000 15.36
Exercised (10,000) 12.25
Canceled (14,000) 13.50
-------
Outstanding, December 31, 1995 (27,000 exercisable
at a weighted average price of $12.25) 62,000 14.00
Granted (weighted average fair value of $3.53) 54,500 14.75
Canceled (4,500) 14.47
-------
Outstanding, December 31, 1996 (90,332 exercisable 112,000 14.35
at a weighted average price of $14.12) =======
</TABLE>
The Companies' apply APB 25 and related interpretations in accounting for
its plan. Accordingly, no compensation cost has been recognized for the
plan. Had compensation cost for the plan been determined based on the fair
value at the grant dates for awards under the plan consistent with the
method prescribed by SFAS 123, the Companies' combined net income (loss)
and net income (loss) per share would have been reduced to the pro forma
amounts indicated below:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
1996 1995
---- ----
<S> <C> <C>
Combined net income (loss) as reported $ (761) $ 4,200
Pro forma combined net income (loss) (903) 4,175
Combined net income (loss) per share as reported $ (0.13) $ 0.73
Pro forma combined net income (loss) per share (0.16) 0.72
</TABLE>
For these disclosure purposes, the fair value of each option grant is estimated
on the date of grant using the Black-Scholes option-pricing model with the
following weighted-average assumptions used for grants in 1996 and 1995
respectively; dividend yield of 3.31% (1996) and 3.18% (1995); expected
volatility of 25.86% for both years; expected lives of five years for both
years; and risk-free interest rates of 6.08% (1996) and 7.47% (1995).
F-20
<PAGE> 62
8. RENTAL OF RACING FACILITY
Bay Meadows leases Bay Meadows Racecourse from Cal Jockey. Pursuant to the
terms of the lease agreement, which commenced on April 1, 1993 and expired
on March 31, 1996, Cal Jockey received the greater of (a) $3,000,000
annually or (b) the sum of 1.5% of the on-track pari-mutuel handle when
there were live races at Bay Meadows, 1% of the pari-mutuel handle wagered
at Northern California satellite wagering facilities receiving races from
Bay Meadows, 1% of the pari-mutuel handle wagered at Bay Meadows when it
was acting as a satellite wagering facility for other host associations
conducting racing in Northern California, 25% of the net commissions from
exported and imported races from Southern California and interstate
locations, and between 60% and 90% of various non-racing sublease rental
income. In addition, Cal Jockey also received a specified percentage of
the annual pari-mutuel handle in excess of $350,000,000.
The Master Lease Agreement pursuant to which Bay Meadows leased the
Racecourse Properties from Cal Jockey expired on March 31, 1996. Cal
Jockey and Bay Meadows have had discussions regarding the extension of
the Master Lease Agreement. The companies now have conflicting views
concerning the existence of any Master Lease Agreement extension. Cal
Jockey believes that no lease exists and that Bay Meadows is a tenant at
will paying rent at the rate in the prior Master Lease Agreement. Bay
Meadows believes that the Master Lease Agreement has been extended for an
additional three years with a ten percent increase in rent but otherwise
substantiallly on the same terms as the previous lease. Bay Meadows has,
however, continued to pay rent at a rental rate equivalent to that
contained in the expired lease agreement through the first quarter of
1997. No amounts for additional rent, if any, have been accrued at
December 31, 1996. In the event that the Companies reach a reconciliation
on any lease extension, retroactive changes in the rental amounts, if
any, will be recorded in the period that such reconciliation occurs. No
assurances can be given concerning the possible effects that the ultimate
resolution of this matter will have on the future operations of the
Companies.
Cal Jockey had rental income from Bay Meadows of $4,918,000, $4,743,000,
and $4,777,000 for the years ended December 31, 1996, 1995 and 1994,
respectively.
Bay Meadows had rental income from subleasing the facility and equipment
to others. Rental income from other racing associations is based upon a
percentage of the pari-mutuel handle of those respective associations.
F-21
<PAGE> 63
9. PARI-MUTUEL REVENUES
The following summarizes information concerning the pari-mutuel revenues
(in thousands):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------
1996 1995 1994
<S> <C> <C> <C>
On-track pari-mutuel handle $104,440 $103,276 $113,131
Intertrack/exported pari-mutuel handle 300,477 278,361 253,794
Out-of-state pari-mutuel handle 108,963 82,653 62,286
-------- -------- --------
Total pari-mutuel handle from annual racing meet 513,880 464,290 429,211
-------- -------- --------
Less:
Patrons' winning tickets 204,637 196,305 209,051
Pari-mutuel license fees paid to State of California 9,977 9,671 10,543
Municipal racing fees 748 746 808
Handles paid to interstate pari-mutuel entities 113,624 89,395 68,039
Handles paid to co host tracks under intrastate racing 143,979 129,343 100,959
Equine research, vanning and stabling and Simulcast
promotion fees 1,405 1,387 1,526
-------- -------- --------
Subtotal 39,510 37,443 38,285
Rights fees from exported races 272 167 388
-------- -------- --------
Total pari-mutuel revenues from annual racing meets 39,782 37,610 38,673
Pari-mutuel revenues from intertrack wagering 1,694 1,345 1,488
-------- -------- --------
Total pari-mutuel revenue $ 41,476 $ 38,955 $ 40,161
======== ======== ========
</TABLE>
Components of pari-mutuel revenues from annual racing meet are as follows
(in thousands):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------
1996 1995 1994
<S> <C> <C> <C>
Commission paid to Bay Meadows $15,880 $14,916 $14,871
Simulcast expense reimbursement 4,234 4,399 4,334
Guest tracks commission 2,614 2,548 2,684
Purses and incentive awards 17,054 15,747 16,784
------- ------- -------
Total $39,782 $37,610 $38,673
======= ======= =======
</TABLE>
10. PENSION PLAN
Substantially all employees of Bay Meadows and its subsidiaries are
covered by union or non-union multi-employer defined benefit pension
plans. The allocated portion of non-union plan assets and accumulated plan
benefits is not determinable. In the aggregate, the actuarial book value
of non-union pension fund assets exceed vested benefits. Data as to
accumulated plan benefits and plan assets for union plans are not
available.
F-22
<PAGE> 64
Contributions charged to expense for these plans were as follows (in
thousands):
YEAR ENDED DECEMBER 31,
-----------------------------------
1996 1995 1994
Union $791 $623 $711
Non-union 179 147 253
---- ---- ----
Total $970 $770 $964
==== ==== ====
Upon the first anniversary of their employment, nonunion employees of Bay
Meadows are eligible to participate in the California Race Track Pension
Plan (the "CTRP Plan"), a defined benefit multiemployer pension plan,
provided the employee is at least 21 years of age. An employee's benefits
under the CRTP Plan are based on the employee's salary and length of
service with Bay Meadows and other employers participating in the CRTP
Plan. Accordingly, the amount of Bay Meadows contributions to the CRTP
Plan may be expected to vary depending on the number of nonunion employees
and their seniority.
11. PROPOSED LAND SALES
On May 31, 1995, Cal Jockey entered into an Agreement of Purchase and Sale
with Property Resources, Inc. ("Property Resources"), a subsidiary of
Franklin Resources, Inc., (as amended, the "Franklin Agreement"),
providing for the sale of approximately 32 acres of Cal Jockey property
which currently supports the barn and stable area ("Stable Area"). The
Franklin Agreement contemplates the sale of the Stable Area for a purchase
price of approximately $21,000,000. Property Resources is obligated to
fund 44% of the cost of various off-site improvements required by the City
of San Mateo and the State of California in connection with the
entitlements for the development of the property (the "Entitlements").
The transaction is subject to a number of conditions precedent including
that of Cal Jockey obtaining from the City of San Mateo all necessary
permits to develop the office complex.
In December 1995, Cal Jockey entered into an Agreement of Purchase and
Sale (as amended, the "Iacocca Agreement") with Lee Iacocca & Associates,
Inc. ("Iacocca") providing for the sale of the Training Track Area.
Effective June 28, 1996, Iacocca assigned its rights under the prior
agreement to Airdial Company, LLC, a newly-formed limited liability
company ("Airdial"), the members of which include some of the principals
involved with Iacocca. The Iacocca Agreement contemplates the sale of the
Training Track Area to Airdial for a purchase price of $30,750,000. In
addition, Airdial is obligated to fund 53% of the off-site improvements
required by the City of San Mateo and the State of California in
connection with the entitlements for the development of the property.
Closing of the transactions are subject to a number of conditions
precedent including Cal Jockey obtaining from the City of San Mateo the
necessary Entitlements to proceed with development plans, together with a
development agreement. If the conditions are satisfied or waived, it is
contemplated that the Franklin Agreement escrow will close 330 days
following the date on which Cal Jockey obtains the Entitlements and the
Iacocca Agreement escrow will close in Fall 1998. Through December 31,
1996, Cal Jockey has expended, in connection with the entitlement process,
$2,242,000 for the services of Calthorpe Associates, engineers, lawyers,
and other consultants. These amounts have been capitalized and added to
the basis in land. Such amounts are classified as Land Held for Sale.
F-23
<PAGE> 65
There can be no assurances that Cal Jockey will be successful in obtaining
the necessary Entitlements to avoid termination of the Franklin Agreement
or the Iacocca Agreement or an adjustment to the purchase price under the
Iacocca Agreement.
In July 1996, Cal Jockey entered into an Agreement of Purchase and Sale
with Public Storage, Inc, (the "Public Storage Agreement") to sell the
Tennis Club Parcel for approximately $2,200,000. Public Storage, Inc.
intends to convert the land into mini-storage units. The sale of the
Tennis Club Parcel is subject to various contingencies including approval
by the City of San Mateo of a rezoning of the property and, therefore, no
assurance can be given that such sale will be consummated.
In November 1996, Cal Jockey entered into a non-subordinated ground lease
(the "Borders Lease") with Borders, Inc. ("Borders"), a bookstore chain.
The Borders lease covers 2.3 acres of land formerly used by Bay Meadows as
a parking lot and land adjacent to the parking lot. The San Mateo Planning
Commission voted to approve the development of a Borders bookstore on the
site on October 14, 1996. The initial term of the Borders Lease is for 20
years with a fixed net annual rent of $279,000 for years 1 through 10,
$362,000 for years 11 through 15, and $416,000 for years 16 through 20.
The Borders Lease has eight five year renewal options with an annual
Consumer Price Index adjustment beginning in the fifth option term. The
land adjacent to the parking lot was purchased by Cal Jockey on January
24, 1997 for $1,300,000.
12. COMMITMENTS AND CONTINGENCIES
Bay Meadows has contracted for computer and display equipment and services
through August 1999. Fees are based on the daily average of on-track
pari-mutuel wagers accepted during the racing meet. These fees charged to
expense aggregated $766,000, $733,000, and $816,000 for the years ended
December 31, 1996, 1995 and 1994, respectively.
The City of San Mateo (the "City"), along with the State of California,
has mandated that water runoff from Bay Meadows' barn area be disconnected
from the municipal sewer collection system. Cal Jockey is cooperating with
the City and State Regional Water Quality Control Board to resolve this
situation, and has prepared preliminary reports describing the proposed
compliance measures including construction of supplemental treatment
facilities. If the Stable Area is sold as proposed under the Franklin
Agreement, the water run-off problem is expected to be eliminated. If the
Franklin Agreement were terminated and the new barn construction not
consummated, Cal Jockey would be financially responsible for the costs
associated with compliance measures, which are estimated to cost
approximately $1,500,000. These estimated costs are expected to be
capitalized in property, plant and equipment. Final determinations and
approvals have not been received nor has a schedule for implementation
been established. In addition, this plan might be affected by the proposed
land sales described in Note 11.
On August 30, 1996, in the interest of encouraging the continuous
employment of key management personnel, Bay Meadows entered into Severance
Agreements with certain officers including F. Jack Liebau, President;
Eugene F. Barsotti, Jr., Vice President - Racing; Sharon Kelly, Vice
President Marketing; Michael Scalzo, Vice President - Operations; Frank
Trigeiro, Chief Financial Officer and Vice President - Finance; and
Nathaniel Wess, Vice President. These agreements, which expire on December
31, 1997, become effective if there is a change in control of Bay Meadows
followed by a termination by the officer of his or her employment for Good
Reason. In that event, officers other than Mr. Liebau and Mr. Barsotti
become entitled to a lump sum payment equal to the sum of the officer's
current annual base salary plus the officer's bonus received during the
previous 12 months or during
F-24
<PAGE> 66
1996, whichever is greater; Mr. Liebau and Mr. Barsotti are instead entitled to
twice the sum of their current annual base salary plus the bonus received during
the previous 12 months or during 1996, whichever is greater. The Severance
Agreements also provide that Bay Meadows will, at each officer's option, either
continue to make contributions to the officer's retirement plan through January
1, 1998 or pay to the officer a lump sum equal to the actuarial equivalent of
the additional retirement pension to which the officer would have been entitled
had the officer continued service under such retirement plan for an additional
two years.
Bay Meadows and Cal Jockey are, in the ordinary course of business, involved in
litigation and other legal matters. Such litigation includes lawsuits as
follows:
California Jockey Club v. Bay Meadows Operating Company et al.
On August 13, 1996, Cal Jockey filed a complaint in the United States District
Court for the Northern California District of California against Bay Meadows and
its President, F. Jack Liebau and the numbers of the California Jockey Club
Shareholders Committee, a group of stockholders supporting a slate of nominees
to the Cal Jockey Board of Directors in opposition to those nominated by Cal
Jockey management. The complaint alleged violations of the federal securities
laws by reason of the defendants' failure to make required filings and
disclosures in connection with the proxy contest. The complaint sought to compel
defendants to make the required disclosures and to enjoin them from soliciting
or voting proxies. On November 7, 1996, Cal Jockey, with the consent of Bay
Meadows, requested that the case be placed on inactive status through an order
of administrative closure and stay. Bay Meadows believes this suit is without
merit.
Bay Meadows Foundation v. Bay Meadows Operating Company and California Jockey
Club
On December 29, 1995, the Bay Meadows Foundation filed a complaint in San Mateo
Superior Court against the Cal Jockey and Bay Meadows. The complaint alleges
failure to properly calculate and pay charity proceeds as required by law and
includes causes of action for violation of statute, breach of fiduciary duty and
imposition of a constructive trust and accounting. Specifically, the complaint
alleges that Bay Meadows improperly deducted rent payments made to its
affiliate, Cal Jockey, from the charity net proceeds. The complaint also seeks
punitive damages and attorney's fees. On March 25, 1996, the Cal Jockey and Bay
Meadows filed their answer to the complaint. The answer denies the allegations
of the complaint and asserts affirmative defenses against the Bay Meadows
Foundation. Specifically, the Cal Jockey and Bay Meadows maintain that the
deduction of rent payments was lawful and consistent with both the
administrative determination made by the California Horse Racing Board ("CHRB")
in 1991 that such rent payments were deductible and the financial reporting
instructions subsequently promulgated by the CHRB. The parties are currently
engaged in civil discovery and the Cal Jockey and Bay Meadows plan to vigorously
defend themselves against the lawsuit.
F-25
<PAGE> 67
Each of Bay Meadows and Cal Jockey management believes that other pending
legal actions against their respective Companies will not have a material
impact on the separate and combined financial statements, taken as
a whole.
13. RELATED PARTY TRANSACTIONS
In July 1992, Northern California Off-Track Wagering, Inc. ("N.C.O.T.W.
Inc.") was formed to act as the guest associations' pari-mutuel manager
for satellite wagering, and Bay Meadows became a 25% shareholder in
N.C.O.T.W. Inc. Bay Meadows reimbursed N.C.O.T.W. Inc. $4,235,000,
$3,742,000 and $3,671,000 in 1996, 1995 and 1994, respectively, for
satellite wagering expenses N.C.O.T.W. Inc. incurred on behalf of Bay
Meadows. These expenses are included in Bay Meadows' direct operating
costs. Included in Bay Meadows' accounts receivable at December 31, 1996
is a receivable from N.C.O.T.W. Inc. for $81,000. At December 31, 1995,
included in Bay Meadows' accounts payable and accrued liabilities was a
payable to N.C.O.T.W. Inc. of $742,000.
From time to time, Cal Jockey lends funds on a short-term basis to Bay
Meadows to allow Bay Meadows to meet operational needs in the off-season.
There were no borrowings as of December 31, 1996. As of December 31, 1995,
the balance due to Cal Jockey was $600,000 which was reflected in
the inter-company payable/receivable account. For the years ended December
31, 1996 and 1995, Bay Meadows paid Cal Jockey $8,000 and $45,000 in
interest related to these borrowings.
Because a director of Cal Jockey is also a director of Santa Anita Realty
Enterprises, trading restrictions applicable to such director may be
imputed to Cal Jockey. Consequently, there may be periods of time when Cal
Jockey's investment in Santa Anita Realty Enterprises is illiquid.
During 1996, Bay Meadows made purchases from Harris Ranch Beef Company in
the amount of $72,000. John C. Harris is Owner and Chief Executive Officer
of Harris Ranch Beef Company and is also a director of Bay Meadows
Operating Company.
14. FAIR VALUES OF FINANCIAL INSTRUMENTS
The following methods were used by Cal Jockey and Bay Meadows in
estimating the fair value of financial instruments:
a. Cash and cash equivalents, amounts held on deposit for Thoroughbred
owners, accounts receivable and accounts payable and accrued
liabilities and securities held to maturity: The carrying amount
reported in the balance sheet approximates their fair values.
b. Securities available for sale: The fair values of securities
available for sale are based on quoted market prices.
F-26
<PAGE> 68
c. Securities held to maturity: The fair values for government issued
securities are based on quoted market prices. The fair values for
certificates of deposit are estimated using projected cash flows
present valued at replacement rates currently offered for instruments
with similar characteristics.
15. QUARTERLY COMBINED RESULTS OF OPERATIONS (UNAUDITED)
The unaudited quarterly combined results of operations for the years ended
December 31, 1996 and 1995, are as follows (in thousands, except per share
amounts and racing days).
<TABLE>
<CAPTION>
QUARTERS ENDED 1996
-----------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
<S> <C> <C> <C> <C>
Number of live racing days 46 0 25 27
Revenues $ 26,814 $ 2,765 $ 12,195 $ 12,158
Combined net income (loss) $ 3,808 $ (739) $ (608) $ (3,222)(1)
Combined net income (loss)
per paired share $.66 ($.13) ($.11) ($.55)(1)
</TABLE>
(1) Includes merger related costs of $3,995 and legal fees of $1,549.
<TABLE>
<CAPTION>
QUARTERS ENDED 1995
----------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
<S> <C> <C> <C> <C>
Number of live racing days 20 10 27 51
Revenues $ 9,687 $ 7,367 $13,144 $20,511
Combined net income $ 647 $ 260 $ 1,071 $ 2,222
Combined net income
per paired share $ .11 $ .05 $ .19 $ .39
</TABLE>
******
F-27
<PAGE> 69
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT SEQUENTIALLY
NUMBER NUMBERED PAGE
<S> <C> <C>
2.1 Ageement and Plan of Merger dated February 24, 1997, among Patriot
American Hospitality, Inc., Patriot American Hospitality Partnership,
L.P., California Jockey Club and Bay Meadows Operating Company
(incorporated herein by reference to Exhibit 2.1 to the 8-K dated
February 24, 1997 (filed March 3, 1997) (File No. 1-9319 and
1-9320).
3.1 Certificates of Incorporation of the Registrants
(incorporated herein by reference to Exhibit 3.1 to the Annual Report
on Form 10-K for the year ended December 31, 1987 (the "1987 10-K")
(File No. 1-9319 and 1-9320)).
3.2 Agreement of Merger, dated March 24, 1983, between California
Jockey Club and Bay Meadows Realty Enterprises, Inc., Article
II of which changed the name of Bay Meadows Realty Enterprises,
Inc. to California Jockey Club (incorporated herein by
reference to Exhibit 2 to the Registration Statement of the
registrants on Form S-2 as filed with the Securities and
Exchange Commission on November 14, 1986 (the "Initial
Registration Statement") (File No. 1-9319 and 1-9320)).
3.3 Bylaws of California Jockey Club, as amended (incorporated herein by
reference to Exhibit 3.3 to the 1987 10-K and Exhibit 28.1 to the
Quarterly Report on Form 10-Q of the registrants for the quarter ended
September 30, 1989 (File No. 1-9319 and 1-9320)).
3.4 Bylaws of Bay Meadows Operating Company (incorporated herein by
reference to Exhibit 3.4 to the 1987 10-K and Exhibit 28.2 to the
Quarterly Report on Form 10-Q of the registrants for the quarter ended
September 30, 1989 (File No. 1-9319 and 1-9320)).
3.5 Amendment to Bylaws of Bay Meadows Operating Company (incorporated
herein by reference to Exhibit 3.5 of the 1995 10-K (File No. 1-9319
and 1-9320)).
3.6 Amendment to Bylaws of California Jockey Club (incorporated herein by
reference to Exhibit 3.6 to the 1995 10-K (File No. 1-9319
and 1-9320)).
4.1 Pairing Agreement, dated February 15, 1983, between Bay Meadows
Operating Company and California Jockey Club (formerly named Bay
Meadows Realty Enterprises, Inc.) (incorporated herein by reference to
Exhibit 4.3 to the Initial Registration Statement (File No. 1-9319
and 1-9320)).
4.2 Amendment to Pairing Agreement, dated as of February 18, 1988,
between Bay Meadows Operating Company and California Jockey
Club (incorporated herein by reference to Exhibit 4.2 to the
1987 10-K).
10.1 Lease Agreement, dated July 23, 1991, between Bay Meadows
Operating Company and San Mateo County Fair Association
(incorporated herein by reference to Exhibit 10.2 to the 1991 10-K
(File No. 1-9319 and 1-9320)).
</TABLE>
<PAGE> 70
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT SEQUENTIALLY
NUMBER NUMBERED PAGE
<S> <C> <C>
10.2 Standby Agreement, dated 1986, among Tanforan Racing
Association, Bay Meadows Operating Company, Bay Meadows Racing
Association and Pacific Racing Association (incorporated herein
by reference to Exhibit 10.7 to Amendment No. 2 to the
Registration Statement of the Companies on Form S-2, as filed
with the SEC on December 18, 1986 (File No. 1-9319 and
1-9320)).
10.3 Amended and Restated Joint Venture Agreement between Bay
Meadows Racing Association and Pacific Racing Association with
respect to Simulcast Enterprises (incorporated herein by reference to
Exhibit 10.6 to the 1988 10-K (File No. 1-9319 and 1-9320)).
10.4 Totalisator Services Agreement, dated July 30, 1988, among
Autotote Limited, Bay Meadows Racing Association, and Bay
Meadows Operating Company (incorporated herein by reference to
Exhibit 10.7 to the 1988 10-K (File No. 1-9319 and 1-9320)).
10.5 Bay Meadows Operating Company 1988 Stock Option Plan
(incorporated herein by reference to Exhibit 10.11 to the 1987 10-K
(File No. 1-9319 and 1-9320)).
10.6 Lease and Agreement ReConduct of Quarter Horse Racing (1990 and
1991 Racing Seasons), dated February 7, 1990, between Bay
Meadows Operating Company and Peninsula Horse Racing
Association (incorporated herein by reference to Exhibit 10.15
to the 1989 10-K (File No. 1-9319 and 1-9320)).
10.7 Lease Agreement, dated May 31, 1992, between Bay Meadows
Operating Company and San Mateo County Exposition and Fair
Association (incorporated herein by reference to Exhibit 10.7 to the
1992 10-K).
10.8 Letter Agreement, dated March 29, 1993, between California
Jockey Club and Bay Meadows Operating Company for Credit
Enhancement for Line of Credit. Rescission of Sale of 20,000
Shares of Unpaired Cal Jockey Stock and Grant of Option to
Purchase Unpaired Bay Meadows Stock (incorporated herein by
reference to Exhibit 10.10 to the 1992 10-K (File No. 1-9319
and 1-9320)).
10.9 Lease Agreement, dated March 29, 1993, and First Amendment to
Lease dated September 30, 1993, between California Jockey Club
and Bay Meadows Operating Company (incorporated herein by
reference to Exhibit 10.10 to the 1993 10-K (File No. 1-9319
and 1-9320)).
</TABLE>
<PAGE> 71
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER EXHIBIT NUMBERED PAGE
<S> <C> <C>
10.10 Stock Option Agreement, dated June 1, 1993, between Bay Meadows
Operating Company and F. Jack Liebau (incorporated herein by
reference to Exhibit 10.11 to the 1993 10-K (File No. 1-9319
and 1-9320)).
10.11 Settlement Agreement, dated June 15, 1993, between California
Jockey Club, Prometheus Development Co. Inc. and Bay Meadows
Partners (incorporated herein by reference to Exhibit 10.12 to the
1993 10-K (File No. 1-9319 and 1-9320)).
10.12 Lease Agreement, dated July 16, 1993, between Bay Meadows
Operating Company and San Mateo County Exposition and Fair
Association (incorporated herein by reference to Exhibit 10.13
to the 1993 10-K (File No. 1-9319 and 1-9320)).
10.13 Lease Agreement dated August 12, 1993, between Bay Meadows
Operating Company and D.D.B. Inc. (d.b.a. Butler Catering)
(incorporated herein by reference to Exhibit 10.14 to the 1993 10-K
(File No. 1-9319 and 1-9320)).
10.14 Partners Program Agreement, dated August 16, 1993, between
Daily Racing Form, Inc., and Bay Meadows Operating Company
(incorporated herein by reference to Exhibit 10.15 to the 1993
10-K (File No. 1-9319 and 1-9320)).
10.15 Totalisator Services Amendment to the Agreement, dated August
18, 1993, between Autotote Limited, Bay Meadows Racing
Association and Bay Meadows Operating Company (incorporated
herein by reference to Exhibit 10.16 to the 1993 10-K (File No.
1-9319 and 1-9320)).
10.16 Business Loan Agreement dated August 1, 1994, between Bank of
America National Trust & Savings and Bay Meadows Operating
Company (incorporated herein by reference to Exhibit 10.16 to
the 1994 10-K (File No. 1-9319 and 1-9320)).
10.17 Stock Option Agreement, dated March 1, 1994, between Bay
Meadows Operating Company and F. Jack Liebau (incorporated herein
by reference to Exhibit 10.18 to the 1994 10-K (File No. 1-9319 and
1-9320)).
10.18 Stock Option Agreement dated January 16, 1995 between Bay
Meadows Operating Company and F. Jack Liebau (incorporated herein by
reference to Exhibit 10.18 to the 1995 10-K (File No. 1-9319 and
1-9320)).
10.19 Agreement of Purchase and Sale dated December 21, 1995 between
California Jockey Club and Lee Iacocca & Associates, Inc.
(incorporated herein by reference to Exhibit 10.19 to the 1995 10-K
(File No. 1-9319 and 1-9320)).
</TABLE>
<PAGE> 72
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER EXHIBIT NUMBERED PAGE
<S> <C> <C>
10.20 Agreement of Purchase and Sale dated May 31, 1995, First
Amendment dated June 12, 1995, Second Amendment dated December
__, 1995, Third Amendment dated January 31, 1996,and Fourth Amendment
dated March 18, 1996, between California Jockey Club and
Property Resources, Inc. ( incorporated herein by reference to Exhibit
10.20 to the 1995 10-K (File No. 1-9319 and 1-9320)).
10.21 Fifth Amendment to Agreement of Purchase and Sale dated April__, 1996
between California Jockey Club and Property Resources, Inc.
(incorporated herein by reference to Exhibit 20.2 to the Quarterly
Report on Form 10-Q of the registrants for the quarter ended
September 30, 1996 (File No. 1-9319 and 1-9320)).
10.22 Sixth Amendment to Agreement of Purchase and Sale dated August
18,1996, between California Jockey Club and Property Resources, Inc.
(incorporated herein by reference to Exhibit 20.1 to the Quarterly
Report on Form 10-Q of the registrants for the quarter ended September
30, 1996 (File No. 1-9319 and 1-9320)).
10.23 Amendment No. 3 to Agreement of Purchase and Sale dated June 28, 1996,
amending the Agreement of Purchase and Sale dated December 21, 1995
between California Jockey Club and Lee Iacocca & Associates, Inc.
(incorporated herein by reference to Exhibit 20.3 to Quarterly Report
on Form 10-Q of the reistrants for the quarter ended September 30,
1996 (File No.1-9319 and 1-9320)).
10.24 Amendment No. 2 to Agreement of Purchase and Sale dated May 31, 1996,
amending the Agreement of Purchase and Sale dated December 21, 1995
between California Jockey Club and Lee Iacocca & Associates, Inc.
(incorporated herein by reference to Exhibit 20.4 to the Quarterly
Report on Form 10-Q of the registrants for the quarter ended
September 30, 1996 (File No. 1-9319 and 1-9320)).
10.25 Amendment No. 1 to Agreement of Purchase and Sale dated March 5, 1996,
amending the Agreement of Purchase and Sale dated December 21, 1995
between California Jockey Club and Lee Iacocca & Associates, Inc.
(incorporated herein by reference to Exhibit 20.5 to the Quarterly
Report on Form 10-Q of the registrants for the quarter ended September
30, 1996 ( File No. 1-9319 and 1-9320)).
10.26 Form of California Jockey Club Indemnification Agreement
(incorporated herein by reference to Exhibit 10.14 to the Quarterly
Report on Form 10-Q for the registrants for the quarter ended
September 30, 1996 (File No. 1-9319 and 1-9320)).
10.27 Agreement for Purchase and Sale of Real Property and Joint Escrow
Instructions dated July 18, 1996, between California Jockey Club and
Public Storage, Inc.
10.28 Amendment to Agreement for Purchase and Sale of Real Property and
Joint Escrow Instructions dated as of January 31, 1997, between
California Jockey Club and Public Storage, Inc.
10.29 Ground Lease dated November 22, 1996, between California Jockey Club
and Borders, Inc.
10.30 Severance Agreement between Bay Meadows Operating Company and Eugene
F. Barstotti, Jr. dated August 30, 1996 (incorporated herein by
reference to Exhibit 10.1 to the Report on Form 10-Q for the of the
registrants for the quarter ended September 30, 1996 (File No.
1-9319 and 1-9320)).
10.31 Severance Agreement between Bay Meadows Operating Company and Sharon
Kelly dated Ausgust 30, 1996 (incorporated herein by reference to
Exhibit 10.2 to the Report on Form 10-Q for the of the registrants
for the quarter ended September 30, 1996 (File No. 1-9319 and
1-9320)).
10.32 Severance Agreement between Bay Meadows Operating Company and F. Jack
Liebau dated August 30, 1996 (incorporated by reference to Exhibit
10.3 to the Report on Form 10-Q for the of the registrants for the
quarter ended September 30, 1996 (File No. 1-9319 and 1-9320)).
10.33 Severance Agreement between Bay Meadows Operating Company and Michael
Scalzo dated August 30, 1996 (incorporated herein by reference to
Exhibit 10.4 to the Report on Form 10-Q for the of the registrants
for the quarter ended September 30, 1996 (File No. 1-9319 and
1-9320)).
10.34 Severance Agreement between Bay Meadows Operating Company and Frank
Trigeiro dated August 30, 1996 (incorporated herein by reference to
Exhibit 10.5 to the Report on Form 10-Q for the of the registrants
for the quarter ended September 30, 1996 (File No. 1-9319 and
1-9320)).
10.35 Severance Agreement between Bay Meadows Operating Company and
Nathaniel Wess dated August 30, 1996 (incorporated herein by
reference to Exhibit 10.6 to the Report on Form 10-Q for the of the
registrants for the quarter ended September 30, 1996 (File No.
1-9319 and 1-9320)).
10.36 Indemnification Agreement between Bay Meadows Operating Company and
Eugene F. Barsotti, Jr. dated August 30, 1996 (incorporated herein by
reference to Exhibit 10.7 to the Report on Form 10-Q for the of the
registrants for the quarter ended September 30, 1996 (File No.
1-9319 and 1-9320)).
10.37 Indemnification Agreement between Bay Meadows Operating Company and
Greg S. Gunderson dated August 30, 1996 (incorporated herein by
reference to Exhibit 10.8 to the Report on Form 10-Q for the of the
registrants for the quarter ended September 30, 1996 (File No. 1-9319
and 1-9320)).
10.38 Indemnification Agreement between Bay Meadow Operating Company and F.
Jack Liebau dated August 30, 1996 (incorporated herein by refernece
to Exhibit 10.9 to the Report on Form 10-Q for the of the registrants
for the quarter ended September 30, 1996 (File No. 1-9319 and
1-9320)).
10.39 Indemnification Agreement between Bay Meadows Operating Company and
John C. Harris dated August 30, 1996 (incorporated herein by
refernece to Exhibit 10.10 to the Report on Form 10-Q for the of the
registrants for the quarter ended September 30, 1996 (File No.
1-9319 and 1-9320)).
10.40 Indemnification Agreement between Bay Meadows Operating Company and
Lee R. Tucker dated August 30, 1996 (incorporated herein by reference
to Exhibit 10.11 to the Report on Form 10-Q for the of the
registrants for the quarter ended September 30, 1996 (File No.
1-9319 and 1-9320)).
10.41 Indemnification Agreement between Bay Meadows Operating Company and
Anthony J. Zidich dated August 30, 1996 (incorporated herein by
reference to Exhibit 10.12 to the Report on Form 10-Q for the of the
registrants for the quarter ended September 30, 1996 (File No.
1-9313 and 1-9320)).
10.42 Indemnification Agreement between Bay Meadows Operating Company and
Frank Trigeiro dated August 30, 1996 (incorporated herein by
reference to Exhibit 10.13 to the Report on Form 10-Q for the of the
registrants for the quarter ended September 30, 1996 (File No. 1-9313
and 1-9320)).
22.1 Subsidiary of the registrants.
23.1 Consent of Deloitte & Touche LLP.
27.1 Combined Financial Data Schedule.
27.2 Bay Meadows Operating Company Financial Data Schedule.
27.3 California Jockey Club Financial Data Schedule.
</TABLE>
<PAGE> 1
Exhibit 10.27
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
AND JOINT ESCROW INSTRUCTIONS
Dated (for reference purposes only): July 18, 1996. PS#99781
Subject to the terms and conditions herein contained, "Seller" (as hereinafter
defined) agrees to sell, and "Purchaser" (as hereinafter defined) agrees to
purchase, the "Property" (as hereinafter defined).
1. Certain Definitions. The following are among the definitions which
are applicable in this agreement.
"Agreement" means this instrument.
"Chicago Title" means Chicago Title Company, 388 Market Street, Suite
1300, San Francisco, California 94111.
"Closing" means the consummation of the purchase and sale provided for
herein which occurs when Seller delivers to Purchaser a deed conveying the
Property as provided for herein and the Purchase Price is paid to Seller.
"Closing Date" means the date on which the Closing actually occurs.
"Deposit" shall have the meaning set forth in Section 3, as it may be
increased pursuant to Section 8.
"Effective Date" means the date on which each of Purchaser and Seller
shall have received a counterpart of this Agreement executed by the other of
them (unless Purchaser or Seller, as the case may be, shall receive such
counterpart signed by the other after business hours on a business day, or on a
non-business day, in which case the Effective Date shall be the next business
day). This Agreement shall be deemed executed by Purchaser only when executed
by a Vice President of Purchaser.
"Environmental Defect" shall have the meaning set forth in Section 7.
"Environmental Law" shall have the meaning set forth in Section 7.
"Escrow Agent" means Chicago Title acting in its capacity hereunder as
Escrow Agent.
"Extension Deposit" shall have the meaning set forth in Section 10.
"Hazardous Material" shall have the meaning set forth in Section 7.
<PAGE> 2
"Instruction Copy" shall have the meaning set forth in Section 2.
"Lease" means the lease affecting the Property and listed on EXHIBIT B
attached hereto and incorporated herein by reference.
"Project" shall have the meaning set forth in Section 8.
"Property" means the real property located at 2222 South Delaware, San
Mateo, California, also referred to as Assessors Parcel #035-321-080, and as
more specifically described in EXHIBIT A attached hereto and incorporated
herein by reference.
"Purchase Price" shall have the meaning set forth in Section 3.
"Purchaser" means Public Storage, Inc., a California corporation.
"Seller" means California Jockey Club.
"Survey" shall have the meaning set forth in Section 4.
"Title Company" means Chicago Title Company acting as issuer of title
insurance as provided herein.
"Title Policy" shall have the meaning set forth in Section 9.
"Title Report" shall have the meaning set forth in Section 5.
2. Escrow; Escrow Instructions. A copy of this Agreement as executed
by both Seller and Purchaser (the "Instruction Copy") shall be delivered to
Escrowholder by Purchaser within five business days after the Effective Date. By
such deposit, Escrow Agent is hereby authorized and instructed to act in
accordance with the provisions of this Agreement, which Agreement shall
constitute Escrow Agent's escrow instructions. Purchaser and Seller shall each
deposit such other instruments and funds as are necessary to close the escrow
and consummate the sale and purchase of the Property in accordance with the
terms hereof. If Escrow Agent requires any additional instructions, the parties
agree to provide mutually acceptable additions or deletions that do not
substantially alter this Agreement.
3. Purchase Price. Subject to adjustment provided for herein, the
purchase price for the Property (the "Purchase Price") shall be Two Million Two
Hundred Thousand and no/100 Dollars ($2,200,000).
(a) Purchaser will transmit a check for an amount equal to
$10,000 of the Purchase Price (the "Deposit") to Escrow Agent within five
business days after the Effective Date. The Deposit (together with any
"Extension Deposits" made in
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<PAGE> 3
accordance with Section 10(a) hereof) is to be held by Escrow Agent in
accordance with this Agreement.
(b) Buyer shall wire transfer an amount equal to the balance of
the Purchase Price (the amount by which the Purchase Price exceeds the sum of
the Deposit plus any Extension Deposits) plus or minus the net amount of any
adjustments provided for herein to Escrow Agent immediately prior to the
Closing.
(c) The Purchase Price plus or minus the net amount of any
adjustments provided for herein shall be paid to Seller by Escrow Holder at the
Closing.
4. Survey. Purchaser shall have the right, but not the obligation, to
obtain, and it is anticipated that Purchaser shall obtain, at Purchaser's sole
cost and expense, a current boundary and topographical survey of the Property
(the "Survey"). Seller shall have no obligation to provide or pay the cost of
the Survey. However, Seller shall provide Purchaser and its engineers access as
required to prepare as detailed a Survey as Purchaser shall require and shall
otherwise cooperate with Purchaser and its engineers and furnish such
information as is necessary for the Survey as required by Purchaser. It is
acknowledged and anticipated that the Survey, as required by Purchaser, will
provide all of the detail and information, and contain such certifications, as
are generally required by institutional purchasers of real property. The
requirements for the Survey may include a certification of the total number of
square feet contained within the exterior boundaries of the Property minus the
total number of square feet contained within the boundaries of all easements,
roads, rights-of-way and encroachments situated in the Property (the "Net Square
Feet") in the form specified for an American Land Title Association ("ALTA")
survey.
5. Obtaining of Title Information. Within two (2) business days
after receipt of the Instruction Copy, Escrow Holder, at Seller's sole cost and
expense, shall order the issuance by Title Company of Title Company a current
abstract of title or preliminary title report covering the Property (the "Title
Report"). The Title Report shall set forth the state of title to the Property
together with all exceptions or conditions to such title, including, but not
limited to, all easements, restrictions, rights-of-way, covenants, reservations
and all other encumbrances affecting the Property which would appear in an
owner's policy of title insurance if issued. Escrow Holder shall also cause
Purchaser to be furnished with true, correct and legible copies of all
instruments referred to in the Title Report as conditions or exceptions to title
to the Property, including liens and a map with all easements of record plotted.
Seller is furnishing to Purchaser concurrently with its delivery of this
Agreement the most recent copy of a title report or title insurance policy for
the Property, if such document is in the possession of or available to Seller.
6. Review of Title; Resolution of Title Objections. Purchaser shall
have a period of thirty (30) days after receipt of the last of the Title Report,
any supplement
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<PAGE> 4
thereto and full and complete copies of the documents referred to therein as
conditions, exceptions, or reservations to title to the Property, to review
such items, and to deliver to Seller in writing such objections as Purchaser
may have to anything contained or set forth in the documents or in the Title
Report. If no written notice of disapproval, approval or approval subject to
certain exceptions is delivered by Purchaser to Seller within the aforesaid
thirty (30) days, such items may appear as exceptions in the owner's policy of
title insurance described in Section 9(a) and in the deed described in Section
9(a) except that liens securing the payment of money (other than non delinquent
taxes and assessments) shall be considered disapproved, whether or not a notice
of disapproval is sent and whether or not they are specified in any such
notice. Seller shall, at Seller's sole cost and expense, at or prior to the
Closing, cause the removal of any liens securing the payment of money (except
that the liens for non-delinquent taxes and non-delinquent assessments may
remain of record, provided that Seller bears or pays to Purchaser Seller's pro
rata share of any such taxes, and all of the amount of any such assessments, as
provided in Section 10(b)). Also, Seller shall use its reasonable best efforts
to cause the removal, prior to the Closing Date, of any other matters with
respect to which Purchaser has delivered written objections. If Seller fails to
cure such objections, Purchaser may, as its sole remedy, elect to (a) terminate
this Agreement or (b) accept such title as Seller can deliver.
AT ANY TIME PRIOR TO THE CLOSING, AND PRIOR TO THE REMOVAL OF
ANY TITLE MATTERS TO WHICH PURCHASER HAS OBJECTED, PURCHASER MAY, BY NOTICE TO
SELLER, REQUIRE A BINDING AND UNCONDITIONAL AGREEMENT FROM SELLER THAT IT WILL
REMOVE ANY OBJECTIONS AS A CONDITION TO MAINTAIN THIS AGREEMENT IN EFFECT AND,
IN THE ABSENCE OF RECEIPT OF SUCH AN AGREEMENT IN WRITING FROM SELLER WITHIN
FIVE BUSINESS DAYS AFTER SUCH NOTICE, PURCHASER MAY TERMINATE THIS AGREEMENT AS
ITS SOLE REMEDY.
Upon a termination by Purchaser pursuant to this Section 6,
the Deposit, and any Extension Deposits shall be returned to Purchaser.
7. Seller's Covenants, Warranties and Representations. Seller
covenants, warrants and represents to Purchaser the following:
(a) Seller has good, marketable and indefeasible fee simple
title to the Property, free and clear of all liens, conditions, exceptions or
reservations, except those specifically approved by Purchaser pursuant to this
Agreement.
(b) There are no adverse or other parties in possession of the
Property, or of any part thereof, except Seller and the tenants under the
Leases. No party has been granted any license, lease or other right relating to
the use of possession of the Property or any part thereof except for the tenants
under the Leases. Seller acknowledges that Purchaser cannot develop the
"Project" (as defined in Section 8) unless the Leases have been terminated and
the tenants under the Leases have vacated the Property. Seller agrees to
terminate the Leases prior to the close of escrow and to deliver the Property to
Purchaser free of all the Leases. After the date of this Agreement, Seller will
not without
4
<PAGE> 5
Purchaser's prior written approval, which shall not be unreasonably withheld,
enter into any further leases, contracts or other obligations relating to the
Property which will affect the Property or bind Purchaser after the Closing.
(c) To the best of Seller's knowledge without inquiry, no facts
or conditions exist which would result in the termination of the current access
from the Property to any currently existing highways and roads adjoining or
situated on the Property, or to any existing sewer or other utility facilities
servicing, adjoining or situated on the Property.
(d) The Property is currently zoned under the zoning
classification of C-3. If requested by Purchaser, Seller will cooperate with and
assist Purchaser in obtaining a use permit, if required for Purchaser's intended
use, in accordance with the provisions of Section 8.
(e) To the best of Seller's knowledge without inquiry, there is
no pending or threatened litigation or governmental action which would adversely
affect the value of the Property to the Purchaser or the right of the Purchaser
to acquire the Property.
(f) To the best of Seller's knowledge without inquiry, the
Property has not been used for the generation, storage or disposal of any
"Hazardous Material" (as defined below). Seller has no notice of any pending or
threatened action or proceeding arising out of the condition of the Property or
any alleged violation of federal, state or local environmental, health or safety
statute, ordinance or regulation (collectively, "Environmental Laws"). As used
in this Agreement, the term "Hazardous Material" shall include but not be
limited to (i) asbestos, (ii) petroleum, (iii) any explosives, radioactive
materials, wastes or substances, or (iv) any substances defined as "hazardous
substances," "hazardous wastes," "extremely hazardous waste," "hazardous
materials," "extremely hazardous waste," "hazardous materials," or "toxic
substances" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601, et seq. or in any other
Environmental Law. To the best of Seller's knowledge without inquiry, there are
no underground tanks contained in the Property [except as otherwise disclosed on
EXHIBIT _____]. To the best of Seller's knowledge without inquiry, the Property
is in compliance with all Environmental Laws [including, without limitation, all
Environmental Laws requiring the registration of underground tanks with any
governmental authority]. Seller agrees that if any environmental tests or
investigations conducted pursuant to Subsection 8(i) below disclose the presence
of any "Environmental Defect" (as defined below), Seller shall, prior to the
close of escrow and at Seller's sole cost and expense, comply with the
provisions in Subsection 8(I)(2), up to a cost of $25,000 or, if Seller declines
to spend additional funds, Purchaser, as its sole remedy, may terminate this
Agreement. As used in this Agreement, the term "Environmental Defect" shall mean
(i) the presence of any Hazardous Material on or in the Property or in any
groundwater within the Property in violation of any Environmental Law, (ii) the
presence of any underground tank or (iii) any violation of any Environmental Law
relating to the Property.
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<PAGE> 6
(g) To the best of Seller's knowledge without inquiry, there
are no facts material to the use and development of the Property which are known
to Seller and which Seller has not disclosed to Purchaser.
(h) From and after the date of this Agreement, Seller shall
keep the Property free and clear of all easements, liens or encumbrances not
disclosed in the Title Report. Seller shall keep current all existing loans
affecting the Property.
(i) Seller is not a "foreign person" as that term is used in
Section 1445(b)(2) of the Internal Revenue Code of 1986, as amended, and the
related regulations. Seller agrees to execute and deliver a Certification That
Seller Is Not a Foreign Person in the form of Exhibit C attached hereto on or
prior to the Closing.
(j) Prior to the Closing Seller shall remove all of Seller's
personal property from the Property[, including, without limitation, any
underground tanks], provided that the cost of such removal does not exceed
$25,000. Such removal shall be accomplished in compliance with all applicable
laws and regulations including, without limitation, all Environmental Laws.
8. Purchaser's Review; Conditions to Purchaser's Obligations.
Seller acknowledges that Purchaser will be unable to use the Property for any
purpose other than a mini-warehouse facility constructed according to certain
plans and specifications of Purchaser (the "Project"). Therefore, Purchaser
shall not be obligated to purchase the Property under this Agreement and shall
have the right to terminate this Agreement and receive a return of the Deposit
if, it determines, that it will not be able to make any of the following
determinations to its sole satisfaction as of the Closing Date.
(a) The Property is currently zoned or on the Closing Date will
be zoned under a zoning classification that will permit Purchaser to construct,
develop and operate the Project on the Property in full compliance with all
applicable zoning regulations.
(b) The Survey, soil tests, percolation tests, engineering
studies and other information, studies and/or tests obtained by or conducted for
Purchaser indicate that the Property is suitable for the construction of the
Project. After the Effective Date, Seller agrees to allow Purchaser and its
agents reasonable access to the Property for the purpose of conducting such
geological tests and engineering studies. Purchaser shall indemnify and hold
Seller harmless with respect to any damage done to the Property by reason of
such tests or engineering studies.
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<PAGE> 7
(c) All utilities (including, but not limited to gas, sewer,
water, electricity, telephone, drainage and other facilities) necessary for the
development and operation of the Project are currently available to the boundary
of the Property.
(d) Purchaser is able to obtain a building permit which will
allow Purchaser to construct, develop and operate the Project on the Property in
full compliance with all applicable regulations, decrees, codes, ordinances,
rules or laws of any city, county, state or federal government or governmental
agency having jurisdiction.
(e) The Property is properly platted and subdivided to permit
Purchaser to construct, develop and operate the Project on the Property without
the necessity of (i) donating or conveying a portion of the Property to any
governmental authority, (ii) constructing or paying for off-site facilities or
other improvements, (iii) paying any fees (other than normal building permit
fees) to any governmental authority, or (iv) subdividing the Property.
(f) Economic and market feasibility studies indicate a
favorable probability of success for the development, marketing and management
of the Project.
(g) There is no applicable moratorium on construction existing
or threatened to exist at the Closing Date.
(h) Subdivision restrictions and setback lines and other
applicable requirements and regulations do not restrict the gross square footage
of the proposed improvements to the Project to less than 100,000 and are
otherwise satisfactory to Purchaser.
(i) Either the condition in Subsection (1) below or the
condition is Subsection (2) below has been satisfied:
(1) Environmental tests and investigations do not disclose
the presence of any Environmental Defect;
(2) If the environmental tests or investigations disclose
the presence of any Environmental Defect, Seller shall have remedied the
situation to the satisfaction of Purchaser and in accordance with all applicable
Environmental Laws.
(j) That Purchaser's Board of Director's will issue a
conditional letter approving the proposed project within 90 days of the
Effective Date.
After the date this Agreement is fully executed, Seller agrees
to allow Purchaser and its agents reasonable access to the Property for the
purpose of conducting such environmental tests and investigations. Seller must
approve any environmental test in advance, which shall not be unreasonably
withheld, and Seller shall have the right to be present when any environmental
test is being conducted. Purchaser shall indemnify and
7
<PAGE> 8
hold Seller harmless with respect to any damage to the Property by reason of
the environmental tests. Seller acknowledges and agrees that in the course of
its investigations Purchaser and/or its agents may contact other parties
including, without limitation, various governmental agencies, to obtain
information abut the Property. Seller further acknowledges and agrees that
Purchaser and/or its agents may comply with any reporting requirement contained
in any Environmental Law.
If Purchaser does not terminate the Agreement prior to the
Closing Date and Purchaser elects to extend the closing by extensions provided
for in Section 10(a)(ii), the Deposit shall be increased to the sum of $50,000.
9. Conditions Precedent.
(a) The obligation of Purchaser under this Agreement to
purchase the Property is subject to the satisfaction of the following:
(1) Seller shall have delivered into escrow all of the
following:
(i) A grant deed in a form reasonably acceptable to
Purchaser and Escrow Agent, conveying title to the Property to Purchaser, free
and clear of all liens, encumbrances or other title exceptions, except those
permitted in accordance with this Agreement.
(ii) If not previously executed and delivered, a
Certification That Seller Is Not A Foreign Person in the form of EXHIBIT C
attached hereto.
(iii) A duly executed assignment in form acceptable to
Purchaser of all permits, licenses, governmental approvals and similar items
relating to the use and development of the Property, together with the originals
or copies of any such items in Seller's possession.
(2) Purchaser shall not have disapproved the status of title
to the Property in accordance with Section 4 & 6 (or any objections to title
shall have been removed prior to a termination of this Agreement) and Title
Company shall be in a position to issue an owner's policy of title insurance
(the "Title Policy") which shall insure fee simple, indefeasible title to the
Property in the name of Purchaser or its assignee for the amount of the Purchase
Price. The Title Policy shall contain no exceptions to title to the Property
other than those permitted in accordance with this Agreement and shall
specifically insure against all mechanics liens. Purchaser may require as a
condition to its obligations to purchase the Property that the Title Policy be
an ALTA extended coverage policy rather than a standard coverage policy, and/or
that it include such endorsements, including a survey endorsement, in such forms
as are applicable and commonly required by institutional purchasers of real
property.
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<PAGE> 9
(3) Purchaser shall not have disapproved the Property based
upon its review of the matters referred to in Section 8 hereof.
(4) The representations and warranties of Seller set forth
in Section 7 shall be true and correct as of the Closing Date and Seller shall
so represent in writing in a certificate satisfactory to Purchaser.
(5) Seller shall not be in breach of any of its covenants
hereunder.
(6) The Board of Directors of Purchaser shall have
authorized and approved the transaction provided for herein.
(b) The obligation of the Seller under this Agreement to sell
the Property is subject to the deposit into escrow with Escrow Agent of the
Deposit and, if applicable, the Extension Deposits, as herein provided and of
the balance of Purchase Price plus or minus, as the case may be, the net amount
of any Closing adjustments provided for herein and Purchaser not being in
default hereunder.
10. Closing; Expenses.
(a) Subject to the provisions of Subsections (i) and (ii)
below, the Closing Date shall be 150 days from the Effective Date; provided
however, Purchaser may designate an earlier Closing Date by written notice
delivered to Seller not less than three (3) business days prior to the
originally scheduled Closing Date, provided that Seller may extend the Closing
Date for up to 45 days for the purpose of effectively consummating a tax
deferred exchange. The Closing shall be accomplished through, and with the
assistance of, Escrow Holder, as herein provided.
(i) If, on the Closing Date (as such date may have been
accelerated or postponed by Purchaser in accordance with the provisions of
Subsections 10(a) above or 10(a)(ii) below), or if Purchaser has made objections
in accordance with Section 6 that have not been cured or waived, or if the Title
Company is not able to confirm that it will issue the Title Policy as of the
Closing in accordance with the applicable requirements described herein, then at
Purchaser's sole option Purchaser may postpone the Closing not less than five
(5) days or more than thirty (30) days to such date as may be designated by
Purchaser in written notice to Seller, and such postponed date shall then be the
Closing Date.
(ii) In addition to Purchaser's right to postpone the
Closing as provided in the previous sentence, on or before the Closing Date, at
least ten (10) days before the Closing Date, Purchaser may postpone the Closing
for one or more successive one-month periods by delivering written notices to
Seller of such postponed Closing Date and contemporaneously depositing to
Seller, Ten Thousand and no/100 Dollars ($10,000)
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<PAGE> 10
for each one-month postponement. Each such deposit (an "Extension Deposit") is
to be paid to Seller as consideration for the extensions. Purchaser shall not
without Seller's written consent extend the Closing Date more than three (3)
months beyond the originally scheduled Closing Date. Said Extension Deposits
are deemed to be non-refundable but applicable to the Purchase Price, except in
the event of default by Seller.
(b) Non delinquent rents (if any) and ad valorem taxes for the
then current tax year shall be prorated as the Closing. If the Closing shall
occur before the tax rate is fixed for the then current year, the apportionment
of taxes shall be based upon the tax rate for the preceding year applied to the
latest assessed valuation, and after the taxes are assessed for the then current
year, Purchaser and Seller shall adjust the amount actually due by a new
proration based on the new rate and upon demand the proper party shall promptly
pay the differential in cash to the other party. The amount of any special
assessments applicable to the Property, and not yet paid, shall be a credit
against the Purchase Price. Notwithstanding anything to the contrary contained
herein, the provisions of this Section 10(b) shall survive the Closing.
(c) Except as otherwise specifically provided in this
Agreement, all costs, fees and other expenses in connection with the transaction
contemplated by this Agreement, other than the legal fees of each party's
counsel in negotiating, preparing and consummating, this Agreement, which shall
be paid by each respective party, shall be apportioned in accordance with
accepted custom in the region where the Property is located.
(d) Seller shall pay the cost of the Title Policy to the extent
that such cost does not exceed the cost of a standard coverage policy. If
Purchaser requires ALTA or extended coverage, Purchaser shall pay the
incremental additional cost resulting from such requirement.
11. Termination; Default; Remedies.
(a) In the event Seller has defaulted in the due and timely
performance of its obligations under this Agreement, or in the event of a breach
of Seller's representations and warranties in this Agreement (collectively
"Seller's Default"), then (i) Purchaser may enforce specific performance of this
Agreement, or may bring suit for damages against Seller, and may exercise any
other right or remedy Purchaser may have at law or in equity by reason of such
Seller's Default, and (ii) Escrow Agent shall return to Purchaser the Deposit,
any additional deposits and any Extension Deposits held by Escrow Agent and
Seller shall return to Purchaser every deposit of any kind (including, without
limitation, the Deposit and any Extension Deposits) that was released to Seller.
(b) In the event that this transaction fails to close by reason
of a termination by Purchaser pursuant to Section 6 or 8 of this Agreement or
any right of termination which Purchaser may have, or because any of the
conditions to Purchaser's obligations. including those stated in Subsections
9(a)(1), (2) or (4) have not been
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<PAGE> 11
satisfied, then Escrow Agent shall return to Purchaser the Deposit (which shall
include all deposits made other than Extension Deposits).
(c) THE PARTIES ACKNOWLEDGE AND AGREE, BY INITIALING THIS
SECTION IN THE SPACE PROVIDED, THAT ANYTHING IN THIS AGREEMENT TO THE CONTRARY
NOTWITHSTANDING, IF THIS TRANSACTION FAILS TO CLOSE BECAUSE OF PURCHASER'S
DEFAULT IN ITS OBLIGATIONS HEREUNDER, SELLER SHALL BE ENTITLED TO IMMEDIATE FULL
CASH PAYMENT OF THE DEPOSIT, AND TO RETAIN ALL EXTENSION DEPOSITS, WHICH HAVE
BEEN PAID TO SELLER, AS LIQUIDATED DAMAGES, WHICH SHALL BE SELLER'S SOLE REMEDY
HEREUNDER IN THE EVENT OF SUCH DEFAULT BY PURCHASER. SELLER AND PURCHASER HEREBY
AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AT THIS TIME TO SET THE DAMAGES WHICH
WOULD BE SUFFERED BY SELLER, AND THAT THE FOREGOING AMOUNTS ARE REASONABLE
ESTIMATE OF THOSE DAMAGES.
Seller's Initials: /s/ KH Purchaser's Initials: /s/ DR
12. Notices. All notices, demands and requests and other
communication s required or permitted hereunder shall be in writing, and shall
be deemed to be delivered, when received, if delivered personally, by private
messenger or courier service or by facsimile, or whether actually received or
not seventy-two (72) hours after the Deposit thereof in a regularly maintained
receptacle for the United States mail, registered or certified, return receipt
requested, postage prepaid, addressed to the parties at the following addresses:
PURCHASER:
Public Storage, Inc.
P. O. Box 25050
Glendale, California 91221-5050
or
701 Western Ave., Suite 200
Glendale, CA 91201-2397
Attention: Evelyn L. Hubel, Escrow Manager
Telephone: (818) 244-8080, Extension 162
Facsimile: (818) 244-0581
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<PAGE> 12
with copy to:
David Ristig
Acquisition Representative
Public Storage, Inc.
P. O. Box 25050
Glendale, California 91221-5050
or
701 Western Ave., Suite 200
Glendale, CA 91201-2397
Telephone: (818) 244-8080, Extension 168
Facsimile: (818) 244-0581
SELLER:
California Jockey Club
Attention: Ray Kuratek
P.O. Box 5050
San Mateo, California 94402
Telephone: (415) 573-4669
Facsimile: (__) __________________
13. As Is Purchase. Subject to the warranties and
representations contained herein, Purchaser is buying the Property based upon
its own inspection thereof, in its "As Is" condition, without warranty, express
or implied.
14. Complete Agreement. This Agreement embodies the complete
agreement between the parties hereto and cannot be modified, amended or
terminated except by the written agreement of the parties.
15. Parties Bound. This Agreement shall be binding upon and
inure to the benefit of Seller and Purchaser, and their respective heirs,
personal representatives, successors and assigns. Purchaser may, prior to, at or
after the Closing, assign its rights and obligations under this Agreement to any
party with the prior written consent of Seller which shall not be unreasonably
withheld.
16. Survival of Representations and Warranties. The
representations and warranties set forth in this Agreement shall be continuing
and shall survive the Closing for a period of one (1) year.
12
<PAGE> 13
17. Commissions. Purchaser and Seller each represent and
covenant to the other that they have not entered into any agreement, incurred
any obligation or know of any facts which might result in an obligation for any
party to pay a sales or brokerage commission or finder's fee for this
transaction except for a commission to be paid to KTW Properties, Inc., which is
to be paid only if this transaction closes and which commission shall be three
percent (3%) of the Purchase Price and is the sole responsibility of Seller.
Purchaser and Seller each agree to indemnify and hold the other harmless from
any loss, liability, cost of expense, including reasonable attorneys' fees,
arising from a breach of this representation and warranty, and Seller agrees to
indemnify and hold Purchaser harmless from any loss, liability or expense,
including reasonable attorneys' fees, arising from Seller's failure to pay the
commission described above.
18. Attorneys' Fees. In any litigation between the parties to
enforce any provision or right under this Agreement, the unsuccessful party
covenants and agrees to pay to the successful party all costs and expenses
incurred by the prevailing party in connection with the litigation including,
but not limited to, reasonable attorneys' fees.
19. Purchaser's Approvals and Disapprovals. Purchaser's
rights to approve or disapprove matters as provided for in this Agreement shall
be in the sole discretion of Purchaser. No such approval or disapproval shall
affect Seller's representations and warranties herein or waive any rights of
Purchaser to rely upon any of the representations and warranties of Seller.
20. Time. Time is of the essence of this Agreement.
21. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument.
22. Governing Law. This Agreement is to be governed by and
construed in accordance with the laws of the state where the Property is
located.
23. Possession of Property, Risk of Loss. Possession of the
Property shall be transferred on the Closing Date, as of the Closing. All risks
of loss with respect to the Property shall be borne by Seller until the later of
the transfer of title or the transfer of possession to Purchaser.
24. Restrictions on Other Property. Seller will not develop
or operate as a "Self Storage Project" any real property presently owned by
Seller and located within a five mile radius of the Property for a period of ten
years commencing on the Effective Date. The term "Self Storage Project" means
improvements containing more than 10,000 rentable square feet of individual
storage rental units, partitioned for the exclusive use of individual tenants,
with separate secure access. This shall not be intended to restrict the right of
the California Jockey Club to provide storage for the exclusive use by the
California Jockey Club, its members, employees, or its patrons. The foregoing
restriction
13
<PAGE> 14
shall be personal to the California Jockey Club and shall not bind future
owners which are not affiliated with the California Jockey Club.
25. Further Assurances. From time to time, at Purchaser's
request, whether on or after the close of escrow, and without further
consideration, Seller shall execute and deliver any further instruments of
conveyance and take such other actions as Purchaser may reasonably require to
complete more effectively the transfer to Purchaser of the Property acquired
under this Agreement.
26. Time for Signing. This Agreement shall be of no force and
effect if not executed on behalf of Seller and delivered to Purchaser as so
executed on or before June 26, 1996, or if not executed on behalf of Purchaser
by a Vice President of Purchaser and delivered to Seller as so executed on or
before the fifth business date after Purchaser's receipt of the Agreement
executed on behalf of Seller.
27. Exchange. Purchaser shall cooperate with Seller in
structuring this transaction as a tax-deferred exchange provided that any
additional cost or liability thereby shall be borne by Seller.
14
<PAGE> 15
28. Signatures of Parties.
SELLER:
(name of entity, if applicable)
By: /s/ Kjell H. Qvale
-------------------------------------
Name: Kjell Qvale
Title: Chairman of the Board
Date Executed: August 19, 1996
PURCHASER:
PUBLIC STORAGE, INC.
By: /s/ David Ristig
-------------------------------------
Name: David Ristig
Title: Acquisition Representative
Date Executed: July 18, 1996
By: /s/ Hugh W. Horne
-------------------------------------
Hugh W. Horne
Vice President
Date Executed: 7/18/96
15
<PAGE> 16
EXHIBIT A
Legal Description and Parcel Map
A parcel of approximately 2.235 acres (97,357 square feet) including a building
of approximately 50,000 square feet currently used as a Tennis Club located at
2222 South Delaware Street, San Mateo, California. AKA AP#035-321-080.
[map here]
16
<PAGE> 17
EXHIBIT B
This is Exhibit B to the AGREEMENT FOR THE PURCHASE AND SALE OF REAL
PROPERTY AND JOINT ESCROW INSTRUCTIONS by and between PUBLIC STORAGE, INC., as
Purchaser and as Seller.
The Lease affecting the Property is listed below:
LEASE:
17
<PAGE> 18
EXHIBIT C
Certification That Seller Is Not A Foreign Person
_________________________________________________________________________
______________________________________________________________________________,
is the Seller of certain real property under an Agreement for the Purchase and
Sale of Real Property and Joint Escrow Instructions dated ___________________,
19__, involving Seller's real property located in ________, ________
Section 1445 of the Internal Revenue Code of 1986, as amended, provides that a
buyer of a U.S. real property interest must withhold tax from its payments to
the seller if the seller is a foreign person. To inform the buyer that
withholding of tax is not required upon the sale of the property pursuant to
the above-described agreement, the undersigned certifies [on behalf of Seller
if an entity]:
1. Seller is not a foreign person as that term is used in Section
1445(b)(2) of the Internal Revenue Code of 1986, as amended, and the related
regulations.
2. Seller's United States taxpayer identification number (social
security number for individuals, employer identification number for others)
is ______________________________________.
3. Seller's address is ___________________________________________
___________________________ (home address for individuals, office address for
entities).
4. Seller understands that this Certification may be disclosed to the
Internal Revenue Service by the buyer and that any false statement included in
this Certification could be punished by fine, imprisonment or both.
Under penalty of perjury we declare that we have examined this
certificate and to the best of our knowledge and belief it is true, correct,
and complete and we further declare that we have authority to sign this
document on behalf of Seller.
Dated: __________, 1996
Name:
Title:
Name:
Title:
18
<PAGE> 1
EXHIBIT 10.28
AMENDMENT TO AGREEMENT
FOR PURCHASE AND SALE OF REAL PROPERTY
AND JOINT ESCROW INSTRUCTIONS
This Amendment (the "Amendment") is made as of January 31, 1997 to
that certain Agreement for Purchase and Sale of Real Property and Joint Escrow
Instructions dated (for reference purposes only) July 18, 1996 (the
"Agreement").
The terms of this Amendment are amended as follows:
1. The first sentence of Section 3(a), which reads as follows:
"Purchasers will transmit a check for an amount equal to
$10,000 of the Purchase Price (the "Deposit") to Escrow Agent
within five business days after the Effective Date."
shall be deleted and replaced by the following:
"Purchaser will transmit to Escrow Agent a check for an amount
equal to $10,000 within five business days after the Effective
Date and a check for $40,000 on or before April 30, 1997.
This $50,000 (the "Deposit") shall be applied to the Purchase
Price."
2. The last two words of the first paragraph of Section 8 shall be
deleted and the following language substituted therefore:
"no later than the "Final Contingency Date" (which shall be
June 1, 1997 unless extended as hereinafter provided), or such
earlier dates as are specified below as the final date for
certain determinations. If Seller is not notified on or
before the applicable date that any of such determinations is
negative, such
<PAGE> 2
determination shall be deemed positive. If any of the
determinations are negative, the Agreement will terminate in
the absence of mutual agreement to the contrary."
3. Purchaser agrees that any soil tests, percolation tests and
other studies and tests referred to in Section 8(b) shall be performed on or
before April 30, 1997 and Purchaser shall make its determination with respect to
all matters covered by Sections 8(b), 8(c), 8(e) and 8(f) by said date,
provided, however, that an affirmative determination as of April 30, 1997 under
Section 8(b), (c) or (f) shall not preclude a later termination of the Agreement
by Purchaser prior to the Closing pursuant to any of such provisions if, on or
after April 26, 1997, there occurs a natural event directly affecting the
Property (e.g. flooding, earthquake) outside of the control of Purchaser which
would have a material adverse effect on relevant factors initially taken into
account by Purchaser in such affirmative determination.
4. With regard to Section 8(i), if the environmental tests
disclose any Environmental Defect which will cost more than $25,000 to remedy
but Seller does not elect to pay the portion of such cost in excess of $25,000
($25,000 being the maximum amount which Seller may be required to expend),
Purchaser may either pay the incremental cost in excess of $25,000 or terminate
the Agreement in which event the Deposit shall be refunded. Seller acknowledges
its obligation to credit up to the first $25,000 of any such cost against the
Purchase Price. Purchaser agrees, notwithstanding anything to the contrary in
Section 8(f), that Seller, apart from allowing a credit against the Purchase
Price as of the Closing for remediation costs incurred or to be incurred by
Purchaser, up to a maximum of $25,000, shall have no obligation to remedy any
Environmental
2
<PAGE> 3
Defect. It is further acknowledged that if Purchaser's environmental tests or
investigations disclose an Environmental Defect, Purchaser may terminate this
Agreement by virtue thereof on or before the Final Contingency Date if it cannot
reasonably conclude with reasonable certainty, in Purchaser's discretion, that
the cost of remediation will be less than $25,000.
5. The last sentence of Section 8 shall be deleted.
6. The first clauses of Section 9(a)(2) ending with the word
"and" on line 3(a) is hereby deleted.
7. Section 9(a)(3) is hereby deleted.
8. Section 10(a) of the Agreement shall be amended in its
entirety to read as follows:
"(a) The Closing Date shall be the date which is 45 days
after the Final Contingency Date, provided, however, that
Seller may establish an earlier Closing Date by notice to
Purchaser on or after the Final Contingency Date and at least
10 days prior to the Closing Date as specified therein.
If, on the Closing Date (as otherwise established pursuant
to the preceding paragraph) Purchaser has made timely
objections in accordance with Section 6 which have not been
cured or waived, or if the title Company is not able to
confirm that it will issue the Title Policy as of the Closing
in accordance with the applicable requirements described
herein, then at Purchaser's sole option Purchaser may postpone
the Closing not less than
3
<PAGE> 4
five (5) days or more than thirty (30) days to such date as
may be designated by Purchaser in written notice to Seller,
and such postponed date shall then be the Closing Date.
Purchaser may postpone the Final Contingency Date for
three (3) successive one-month periods by delivering to Seller
at least ten (10) days prior to the then scheduled Final
Contingency Date written notice of such postponed Final
Contingency Date and contemporaneously paying through escrow,
for concurrent release to Seller, Ten Thousand and No/100
Dollars ($10,000) for each one-month postponement. Each such
payment (an "Extension Deposit") is to be paid to Seller as
consideration for the extensions. Said Extension Deposits are
deemed to be non-refundable but applicable to the Purchase
Price, except in the event of default by Seller."
9. A new Section 28 shall be added to the Agreement as follows:
28. "Copies of Survey Reports to Sellers.
Purchaser shall transmit to Seller on or before
February 7, 1997, a copy of the Survey obtained in accordance
with Section 4. If this Agreement is terminated without
Purchaser acquiring the Property, other than by reason of a
default by Seller in the performance of its obligations
hereunder, or a misrepresentation by Seller contained herein,
then Purchaser, upon request by Seller, shall deliver to
Seller copies of any further surveys of the Property and any
reports concerning the environmental, soil or other conditions
of the
4
<PAGE> 5
Property, obtained by Purchaser, but only to the extent
that such delivery will not breach any agreement entered into
in good faith with the preparer of such surveys and/or
reports."
10. It is agreed that the Title Report referred to in Section
6 has been approved by Purchaser to the extent provided in Purchaser's counsel's
letter to Seller dated January 21, 1996. Purchaser shall either approve or
disapprove the items not approved in such letter on or before February 28, 1997.
If it disapproves any of such items on or before such date this Agreement will
terminate (in the absence of mutual agreement to the contrary). Failure to
disapprove such items on or before such date shall be deemed approval.
11. It is agreed that Section 24 of the Agreement shall be
of no effect unless and until the Closing occurs.
12. Subject to the amendments herein contained, the Agreement
shall remain in full force and effect.
13. It is acknowledged that Seller expects to accept
reservations for scheduled events at the Property through June 30, 1997.
14. This Agreement any be executed simultaneously in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instruments.
5
<PAGE> 6
15. Subject to the Amendment herein contained, the Agreement shall
remain in full force and effect.
CALIFORNIA JOCKEY CLUB
By: /s/ Kjell H. Qvale
--------------------
Its: Chair
--------------------
PUBLIC STORAGE, INC.
By: /s/ David Ristig
-------------------
Its: Acq. Representative
-------------------------
6
<PAGE> 1
Exhibit 10.29
GROUND LEASE
Between
CALIFORNIA JOCKEY CLUB,
A REAL ESTATE INVESTMENT TRUST,
as Landlord
and
BORDERS, INC.,
as Tenant
Property:
2900 Block of El Camino Real
San Mateo, California
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION
PAGE
----
<S> <C> <C>
1. DEMISED PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. TERM AND OPTIONS TO EXTEND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. ANNUAL RENT - ADDITIONAL RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. REAL ESTATE TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. LANDLORD'S WORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6. TENANT'S WORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
8. RENT COMMENCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. LANDLORD'S REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10. MAINTENANCE OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
11. ALTERATIONS AND ADDITIONAL CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
12. UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13. GOVERNMENTAL REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
14. EXCULPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
15. DAMAGE AND DESTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
16. EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
17. USE, ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
18. INTENTIONALLY DELETED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
19. LANDLORD'S REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
20. BANKRUPTCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
21. COVENANT OF TITLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
22. LEASEHOLD MORTGAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
23. FEE MORTGAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
24. INDEMNIFICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
25. TENANT'S RIGHT TO CURE LANDLORD'S DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
25A. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
26. HAZARDOUS MATERIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
27. CONDITION OF PREMISES AT TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
28. HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
29. RIGHT OF FIRST REFUSAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
30. SIGNAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
31. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
32. PARTIAL INVALIDITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
33. ENTIRE AGREEMENT - APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
34. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
35. MEMORANDUM OF LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
36. BROKER'S REPRESENTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
37. ESTOPPEL CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
38. CAPTIONS AND DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
39. SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
40. DUE DILIGENCE CONTINGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
41. SITE PLAN APPROVAL/PERMIT CONTINGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
42. ADJACENT PROPERTY ACQUISITION CONTINGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
43. FINANCING CONTINGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
44. QUIET TITLE CONTINGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
45. TIME OF ESSENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
</TABLE>
EXHIBITS
Exhibit A-1 Legal Description of Jockey Club Parcel
Exhibit A-2 Legal Description of Williams Parcel
Exhibit B Site Plan Showing Proposed Location of Tenant's Building and
Improvements
Exhibit C Annual Rent
Exhibit D Criteria for Tenant Improvements
Exhibit E Form of Assignment to Developer
Exhibit F Permitted Title Exceptions
ii
<PAGE> 4
GROUND LEASE
THIS GROUND LEASE ("Lease") is made and entered into as of this 22nd
day of November, 1996 by and between CALIFORNIA JOCKEY CLUB, A REAL ESTATE
INVESTMENT TRUST, having its principal office at 2600 Delaware Street, San
Mateo, California 94403 (herein referred to as "Landlord") and BORDERS, INC., a
Delaware corporation, having its principal office at 311 Maynard Street, Ann
Arbor, Michigan 48104 (herein referred to as "Tenant").
W I T N E S S E T H :
That in consideration of the rents, covenants and conditions herein
set forth, Landlord and Tenant do hereby covenant, promise and agree as
follows:
1. DEMISED PREMISES. Effective upon satisfaction or waiver of
the contingencies set forth in Articles 40 through 43 inclusive hereof,
Landlord hereby demises unto Tenant and Tenant rents from Landlord a certain
parcel of land containing approximately two and one-half (2 1/2) acres (the
"demised premises") which premises are located in the 2900 Block of El Camino
Real in San Mateo, California. The demised premises consist of certain real
property presently owned by Landlord and described in Exhibit A-1 attached
hereto (the "Jockey Club Parcel") and certain real property presently owned by
another party and described on Exhibit A-2 attached hereto (the "Williams
Parcel"). Landlord will exercise its reasonable best efforts to acquire the
Williams Parcel prior to this Lease becoming effective, in accordance with the
provisions of Article 42 hereof.
Tenant shall demolish any existing structures located on the demised
premises, and construct thereon a building containing approximately twenty-five
thousand (25,000) square feet of floor area ("Tenant's Building") together with
a loading dock, trash compactor, dumpster pad, parking lot and other site
improvements as generally depicted on the site plan attached hereto as Exhibit
B (Tenant's Building and all other improvements on the demised premises being
collectively referred to herein as the "Improvements"). Tenant shall have the
right to change the configuration and/or location of Tenant's Building so long
as Tenant's Building substantially conforms to the depiction on Exhibit B.
Upon expiration or sooner termination of this Lease, title to the Improvements
shall automatically vest in Landlord. The demised premises and the
Improvements are collectively referred to herein as the "Property".
2. TERM AND OPTIONS TO EXTEND.
(a) Initial Term. The term of this Lease shall commence
upon the "Rent Commencement Date," as that term is defined in Article
8 hereof, and shall terminate on the 31st day of January following the
twentieth (20th) anniversary of the Rent Commencement Date (the
"Initial Term").
1
<PAGE> 5
(b) Option Periods. Tenant shall have eight (8)
successive options to extend the term of this Lease for an additional
period of five (5) years (hereinafter called "Option Period") on each
such option, such extended term to begin respectively upon the
expiration of the term of this Lease or of this Lease as extended and
the same terms and conditions as herein set forth shall apply to each
such extended term, except for the Annual Rent which shall be adjusted
as set forth on Exhibit C. Upon the expiration of the eighth (8th)
Option Period, Tenant shall have no further option to extend the term
of this Lease.
(c) Exercise of Option Periods. Tenant shall not have
the right to exercise an Option Period at any time while Tenant is in
default of this Lease. If Tenant shall elect to exercise an Option
Period, it shall do so by giving written notice to Landlord not less
than six (6) months prior to the expiration of the term of this Lease
or of this Lease as extended; notwithstanding the foregoing, if Tenant
does not exercise any Option Period in the time period or in the
manner provided in this Article, such Option Period shall nevertheless
continue in full force and effect and shall not lapse until fifteen
(15) days after Tenant (and Tenant's Leasehold Mortgagee (as defined
in Article 22), if any) has received written notice from Landlord that
such deadline has passed and that Landlord has not received such
notice.
(d) Definition of "Lease term". The phrase "Lease term,"
as used in this Lease, shall mean the Initial Term of this Lease and
any extension thereof pursuant to this Article 2.
(e) Restrictions on Exercise of Options. Landlord
acknowledges that following the mutual execution and delivery of this
Lease, Tenant intends to assign this Lease to a limited liability
company (the "Developer") which will construct Tenant's Building and
thereafter lease Tenant's Building and the demised premises to Tenant.
In connection with such assignment Tenant, Developer and Tenant will
execute and deliver an Assignment of Ground Lease (the "Assignment")
substantially in the form attached hereto as Exhibit E, which
Assignment contains restrictions on the Developer's and any subsequent
assignee's exercise of Option Periods. Landlord agrees to execute and
deliver the Acknowledgement and Consent to the Assignment to Tenant
and Developer within ten (10) days following full execution of the
Assignment and written request and to be bound by the terms thereof,
including but not limited to the restrictions on exercise of the
Option Periods set forth therein.
3. ANNUAL RENT - ADDITIONAL RENT.
(a) Annual Rent. Tenant shall, during the Lease term,
pay to Landlord, at such place as Landlord shall designate in writing,
from time to time, without demand therefor, and without deduction or
offset except as specifically permitted in this Lease, the amounts set
forth on Exhibit C ("Annual Rent"), unless abated or diminished as
hereinafter
2
<PAGE> 6
provided. Annual Rent shall be paid in equal monthly installments on
the first day of each month, in advance, commencing upon the first day
of the Lease term; provided, however, in the event the first day of the
Lease term shall not be the first day of a calendar month, then the
Annual Rent for such month shall be prorated on a daily basis.
(b) Additional Rent. All amounts which Tenant is
required to pay pursuant to this Lease (other than Annual Rent),
together with any fine, penalty, interest and costs which may be added
for nonpayment or late payment thereof, shall constitute additional
rent (referred to herein as "Additional Rent"). If Tenant fails to
pay any Additional Rent due under this Lease, then Landlord shall have
the right to pay the same and shall have all of the rights, powers and
remedies with respect thereto as are provided herein or by law in the
case of nonpayment of Annual Rent.
(c) Net Lease. Except as otherwise set forth in this
Lease, Landlord shall not be required to make any payment of any kind
with respect to the Property nor shall Landlord be required to incur
any obligation or liability with respect to this Lease or the
ownership, construction, operation, maintenance or repair of the
Property.
4. REAL ESTATE TAXES.
(a) Payment. Commencing on the Rent Commencement Date,
Tenant shall pay all Taxes (as defined below) not later than ten (10)
days prior to the date upon which such Taxes become delinquent.
Landlord shall cooperate with Tenant to cause all tax bills to be sent
directly to Tenant from the assessing agency; provided, that until
such change has been effected, Landlord shall forward all tax bills
for the Property to Tenant promptly following receipt thereof. Upon
Landlord's written request, Tenant shall provide Landlord with proof
of payment of Taxes. For purposes of this paragraph, if any
assessment is payable in installments, Tenant shall have the right to
pay any installment as and when such installment becomes due and
payable. Tenant's liability for Taxes shall be prorated for the years
in which this Lease commences and terminates.
(b) "Taxes" Defined. "Taxes" shall mean all real and
personal property taxes, general and special assessments, and other
charges of every description levied on or against the Property, the
leasehold estate created hereunder, any subleasehold estate in the
Property, any portion thereof, and any rent and other charges payable
hereunder or under any sublease of the Property. Notwithstanding the
foregoing, "Taxes" shall not include any franchise, excise, gift,
estate, inheritance, succession, or transfer tax of Landlord in
connection with this Lease or Landlord's rights in the Property.
(c) Challenge. Should either Landlord or Tenant initiate
proceedings to contest the validity or amount of any Taxes levied
against the Property, the other party will cooperate in such
proceedings and should such proceedings be successful, Tenant shall
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be entitled to any tax refund or future abatement, after deducting
therefrom payment of all reasonable out-of-pocket expenses incurred by
Landlord in any such proceeding. Neither party shall initiate
proceedings to contest the validity or amount of any Taxes without
first paying the disputed Taxes or otherwise taking all actions
reasonably required to protect the other party's interest in the
Property.
5. LANDLORD'S WORK. The parties acknowledge the demised premises
will be delivered in an "as is" condition, except for the following items which
shall be Landlord's obligation to perform at its sole cost and expense
("Landlord's Work"): Following the satisfaction or waiver of the contingencies
set forth in Articles 40 through 44 inclusive below, Landlord shall remove all
then-existing Hazardous Materials (as defined in Article 26 below) as shown in
the Phase II Environmental Report to be prepared by Landlord from the demised
premises and restore the surface of the demised premises to its condition
existing prior to such removal, and shall provide Tenant with a certification
from the party performing the remediation of Hazardous Materials showing that
all Hazardous Materials required to be removed or abated pursuant to this
Section 5 have been removed or abated in accordance with applicable law.
Landlord shall deliver the demised premises to Tenant, with all of Landlord's
Work completed, on or before March 1, 1997. Notwithstanding anything to the
contrary set forth herein, Landlord shall not be obligated to remove any such
Hazardous Materials which are in compliance with applicable law and whose
presence would not in any manner interfere with Tenant's ability to secure all
permits and authorizations required to develop and use the Property for
Tenant's intended use or materially interfere with Tenant's use and enjoyment
of the Property; provided, Landlord shall remain liable for removal of any such
Hazardous Materials should the presence of any such Hazardous Materials
materially interfere with Tenant's use and enjoyment of the Property. Further,
if the estimated cost of Landlord's Work shall exceed Two Hundred Thousand
Dollars ($200,000), Landlord shall have the right to terminate this Lease in
lieu of performing Landlord's Work unless Tenant shall agree to pay all costs
of Landlord's Work in excess of Two Hundred Thousand Dollars ($200,000).
Further notwithstanding anything to the contrary set forth herein, Landlord
shall not be obligated to remove or abate any asbestos or asbestos containing
materials contained within the buildings located on the Williams Parcel.
6. TENANT'S WORK.
(a) Definition. Tenant shall at its sole cost and
expense construct the Improvements, install such trade fixtures, and
perform such other work as may be necessary for Tenant to open for
business at the demised premises or to provide improvements for
sublease to subtenants ("Tenant's Work").
(b) Plans and Specifications. Prior to commencement of
Tenant's Work, Tenant shall submit plans and specifications for the
Improvements to Landlord for its approval, which shall not be withheld
or delayed so long as such plans and specifications generally conform
to the Criteria for Tenant Improvements attached hereto as Exhibit D.
Landlord shall have a period of fifteen (15) business days within
which to either approve
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such plans and specifications or to make comments and changes thereon.
If Landlord does not respond to Tenant's submission of plans and
specifications within such fifteen (15) day period, then Landlord shall
be deemed to have approved the same. If Landlord responds by making
reasonable comments to the proposed plans and specifications for the
Improvements, then Tenant shall revise the plans and specifications in
accordance with Landlord's comments and resubmit them to Landlord for
approval within fifteen (15) business days from the date of receipt of
written comments from Landlord. Landlord shall then have ten (10)
business days to approve such revised plans and specifications.
(c) Liens. Tenant agrees to keep the Property free and
clear of all liens arising out of, or claimed by reason of, any work
performed, material furnished or obligations incurred by or at the
insistence of Tenant, and to indemnify and save Landlord harmless from
all such liens or claims of lien and all attorneys' fees or other
costs and expenses incurred by reason thereof. Should Tenant fail to
fully discharge any lien or claim of lien within thirty (30) days
after written notice from Landlord, Landlord may, at its option, pay
the same or any part thereof, and the amount of such payment shall be
due and owing to Landlord from Tenant as of the date of such payment.
No liens of any character whatsoever created or suffered by Tenant
shall in any way extend, attach to or affect the rights of Landlord in
the demised premises, or the Property.
7. INSURANCE.
(a) Liability Insurance. Tenant shall maintain, or shall
cause to be maintained by its subtenant, during the entire term of
this Lease and any extension thereof, a policy of public liability and
property damage insurance insuring the Property against any and all
claims for personal injury, including property damage in, on or about
the demised premises in which aggregate limits of public liability and
property damage coverage shall not be less than Two Million
($2,000,000.00) Dollars. Such policy shall name Landlord and
Landlord's mortgagee (and any Leasehold Mortgagee at its request) as
additional insured, and shall contain a clause that the insurer will
not cancel or change the insurance without first giving Landlord, or
any Leasehold Mortgagee, thirty (30) days prior written notice.
(b) All-Risk Insurance. Tenant shall maintain, or shall
cause to be maintained by its subtenant, during the entire term of
this Lease and any extension thereof, a policy of all-risk property
damage insurance upon Tenant's Building in an amount equal to the
replacement value of Tenant's Building above the foundation walls.
The policy of insurance pursuant to this Article 7(b) shall insure and
be payable to Tenant and shall provide for release of insurance
proceeds to Tenant for restoration of loss. Such policy shall name
Landlord as additional insured and may also name any Leasehold
Mortgagee, upon its request, as an additional insured as its interest
may appear, by standard mortgagee clause if obtainable. Such policy
or policies shall provide that the policy will
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not be cancelled except after thirty (30) days written notice to the
Landlord and any Leasehold Mortgagee. To the extent that Tenant is
obligated to rebuild Tenant's Building following damage or destruction
thereof, and subject to any superior rights of the Leasehold Mortgagee,
any proceeds of the insurance described herein shall be deposited into
a construction disbursement escrow mutually acceptable to the parties
and shall be disbursed on a progress payment basis during the course of
construction in accordance with standard industry practice.
(c) Worker's Compensation Insurance. Tenant shall
maintain, or cause to be maintained by its subtenant, during the
entire term of this Lease and any extension thereof, a policy of
worker's compensation insurance as required by law.
(d) Builder's Risk Insurance. Before commencement of any
demolition or construction, Tenant shall procure, and shall maintain
in force until completion and acceptance of the work, "all risks"
builder's risk insurance including vandalism and malicious mischief,
in form and with a company reasonably acceptable to Landlord, covering
improvements in place and all materials and equipment at the job site
furnished under contract, but excluding contractor's, subcontractor's,
and construction manager's tools and equipment and property owned by
contractor's or subcontractor's employees.
(e) General.
(1) The insurance coverages required hereunder
shall be primary insurance as to all claims thereunder and
shall be carried with an insurance company or companies
licensed to do business in the state in which the demised
premises are located and having a Best's Insurance Reports
rating of A-X or better. Such insurance may be carried under
a blanket policy or policies covering other liabilities and
locations of the Tenant. From time to time, but not less
frequently than annually, Tenant shall furnish Landlord such
evidence as Landlord may require to indicate that the
foregoing insurance is in full force and effect and that the
premiums therefor have been paid and all renewal policies
shall be delivered to Landlord no less than thirty (30) days
prior to the date of expiration of the then existing policy.
Notwithstanding the above, Tenant (or its subtenant, if
applicable) may self-insure any of the insurance obligations
hereunder during any period of time in which the net worth of
the insuring party (or a guarantor thereof) exceeds One
Hundred Million Dollars ($100,000,000.00).
(2) Landlord and Tenant hereby release and
discharge each other and any officer, agent, employee or
representative of such party, of and from any liability
whatsoever arising from loss, damage or injury for which
insurance (providing waiver of liability and containing waiver
of subrogation) is carried, or for which a program of
self-insurance is maintained as allowed in this Lease, by
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the party at the time of such loss, damage, or injury to the
extent of any recovery by the injured party under such
insurance or to the extent of the insurance that would
otherwise have been required hereunder if Tenant self-insures.
8. RENT COMMENCEMENT. The Rent Commencement Date shall be the
earlier of (a) the date Tenant (or its subtenant) opens for business at the
demised premises, or (b) the date which is two hundred ten (210) days after
Landlord has delivered possession of the demised premises to Tenant with all of
Landlord's Work (except any ongoing monitoring of Hazardous Materials
conditions) completed.
9. LANDLORD'S REPRESENTATIONS AND WARRANTIES. Landlord
represents, warrants and covenants that:
(a) Prior to the Rent Commencement Date, Landlord shall
not make any further additions or modifications to the demised
premises or to the buildings located thereon other than normal
maintenance and repair.
(b) Intentionally deleted.
(c) Landlord is a duly constituted and validly existing
real estate investment trust under the laws of the State of Delaware,
duly qualified to do business in the state in which the demised
premises are located, and has the full power to carry out the
transactions contemplated by this Lease.
(d) All partnership or corporate and other proceedings
required to be taken on the part of Landlord to authorize Landlord to
execute and deliver this Lease and to consummate the transaction
contemplated have been duly and validly taken.
(e) Intentionally deleted.
(f) The execution, delivery and performance of the Lease
will not conflict in any way with Landlord's partnership or corporate
documents, and will not conflict or result in a breach or default
under any note, lease, mortgage, indenture, contract or commitment to
which Landlord is a party or by which Landlord may be bound.
(g) The demised premises are not located in a flood
hazard zone or wetland area.
(h) There are no pending or threatened lawsuits of any
nature which in any way affect title to the demised premises, affect
the organization or solvency of Landlord, affect the validity and
enforceability of this Lease, or affect the rights of the Tenant under
the terms of this Lease.
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(i) Intentionally deleted.
(j) There is no other lease applicable to any portion of
the demised premises, nor are the demised premises subject to any
reciprocal operating agreement, cross easement agreement, restrictive
covenants, or any other similar document except as set forth on
Exhibit F attached hereto.
10. MAINTENANCE OF PROPERTY. Tenant shall make and pay for (or
cause its subtenant to make and pay for) all maintenance, replacement and
repair necessary to keep the Property in a good state of repair and in
tenantable condition. Upon advance written notice to Tenant and any subtenant
of Tenant, and during normal business hours, Landlord shall have the right to
inspect the structural, mechanical and roofing components of Tenant's Building.
Tenant shall not commit or permit waste on the Property. Tenant waives the
provisions of Sections 1932(1), 1941 and 1942 of the California Civil Code or
any amendments thereto or any similar law, statute or ordinance now or
hereafter in effect.
11. ALTERATIONS AND ADDITIONAL CONSTRUCTION. Tenant, or any
subtenant, may at any time and from time to time, at its expense, make
alterations to Tenant's Building provided that (i) the fair market value of
Tenant's Building shall not be lessened thereby, (ii) the structural integrity
of Tenant's Building shall not be adversely affected thereby, (iii) the
character of Tenant's Building shall remain primarily retail and/or office in
nature unless Landlord otherwise approves (such approval not to be unreasonably
withheld or delayed) and (iv) such work shall be expeditiously performed and
completed in a good and workmanlike manner and in compliance with all
applicable legal requirements. Tenant agrees to keep the Property free and
clear of all liens arising out of, or claimed by reason of, any work performed,
material furnished or obligations incurred by or at the insistence of Tenant,
and to indemnify and save Landlord harmless from all such liens or claims of
lien and all attorneys' fees or other costs and expenses incurred by reason
thereof. Should Tenant fail to fully discharge any lien or claim of lien
within thirty (30) days after written notice from Landlord, Landlord may, at
its option, pay the same or any part thereof, and the amount of such payment
shall be due and owing to Landlord from Tenant as of the date of such payment.
No liens of any character whatsoever created or suffered by Tenant shall in any
way extend, attach to or affect the rights of Landlord in the demised premises,
or the Property.
12. UTILITIES. Landlord covenants and agrees that, as of date
hereof, gas, electric, telephone, water, sewer and other utilities are
available at the property line of the demised premises.
13. GOVERNMENTAL REGULATIONS. Tenant shall observe and comply
with all requirements, rules, orders and regulations of the federal, state and
municipal governments or other duly constituted public authority affecting the
Property or Tenant's use thereof, including but not limited to compliance with
the Americans with Disabilities Act. Tenant shall have the right, however, to
contest, without cost to Landlord, the validity or application of any such
rule,
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order or regulation required to be complied with by Tenant in accordance with
the foregoing, and may postpone compliance therewith so long as such contest
does not subject Landlord to criminal prosecution or civil penalty or
liability, or adversely affect Landlord's revisionary interest in the Property
for non-compliance therewith and further provided Tenant pays all fines,
penalties and other costs imposed on Landlord as a result of such
non-compliance by Tenant.
14. EXCULPATION. The liability of Landlord for Landlord's
obligations under this Lease shall be limited to Landlord's interest in the
Property, and Tenant shall look solely to the interest of Landlord, its
successors and assigns, in the Property, for the satisfaction of each and every
remedy of Tenant against Landlord. Tenant shall not look to any of Landlord's
other assets seeking either to enforce Landlord's obligations under this Lease,
or to satisfy any money or deficiency judgment for Landlord's failure to
perform such obligations.
From and after the date of this Lease, if Landlord shall fail to
perform any covenant, term or condition of this Lease upon Landlord's part to
be performed, and as a consequence of such default, Tenant shall recover a
money judgment against Landlord, such judgment shall be satisfied solely out of
(i) the proceeds of sale received upon execution of such judgment and levy
thereon against the right, title and interest of Landlord and the buildings and
improvements from time to time on the Property, (ii) the rents or other income
from the Property receivable by Landlord, and/or (iii) any condemnation awards
or insurance proceeds received by Landlord in connection with all or any
portion of the Property. The provisions contained in the preceding sentence
are not intended to, and shall not, (a) limit any right that Tenant might
otherwise have to obtain injunctive relief against Landlord or Landlord's
successors-in-interest, or with respect to any other action or remedy which may
be accorded Tenant under the terms of this Lease, subject to the limitations
contained in the preceding sentence, (b) excuse any default or other breach on
Landlord's part under this Lease, or (c) render Tenant liable for the
obligations or other liabilities of Landlord to others.
15. DAMAGE AND DESTRUCTION.
(a) Obligation to Rebuild. In the event that, at any
time during the Lease term, Tenant's Building shall be damaged or
destroyed (partially or totally) Tenant shall, at its expense,
promptly and with due diligence, either (i) repair, rebuild and
restore the same, as nearly as practicable, to the condition existing
just prior to such damage or destruction, or (ii) at Tenant's option,
repair, rebuild and restore the same for the same use and purposes or
any other use permitted under this Lease, but in accordance with such
plans and specifications as are then generally in use by any existing
or proposed tenant or tenants in Tenant's Building; provided, however
(i) the Improvements as repaired, rebuilt or replaced will have a
value not less than their value just prior to said loss, and (ii) the
character of the repaired, rebuilt or replaced premises shall be
primarily retail and/or office in nature unless Landlord otherwise
approves (such approval not to be unreasonably withheld or delayed).
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(b) Option to Terminate. It is understood and agreed
that if Tenant's Building is damaged or destroyed within two (2) years
of the then scheduled expiration date of the Lease term (including any
extension thereof), and if the extent of such damage or destruction is
such that the cost of restoration would exceed fifty percent (50%) of
the amount it would have cost to replace Tenant's Building on the
Property in its entirety at the time such damage or destruction took
place, then, and in either of such event, Tenant may terminate this
Lease as of the date of such damage or destruction by giving written
notice to Landlord within ninety (90) days after the date of the
casualty, specifying a date of termination within ninety (90) days
after the date of such notice. If Tenant so elects to terminate, then
Tenant shall utilize insurance proceeds to pay off and discharge any
Leasehold Mortgage and any remaining insurance proceeds shall be paid
to Landlord. Upon such termination, and at the request of Landlord,
Tenant will clear the Improvements from the demised premises at
Tenant's expense.
16. EMINENT DOMAIN.
(a) Tenant's Building/Ingress and Egress. In the event
that the points of ingress and egress to the public roadways,
substantially as depicted on Exhibit B, shall be materially impaired
by a public or quasi-public authority, so as to render, in Tenant's
sole and reasonable opinion, the demised premises unsuitable for its
intended purpose, Tenant shall have the option to terminate this Lease
as of the date Tenant shall be deprived or denied thereof. In the
event that more than ten percent (10%) of Tenant's Building or the
parking areas on the demised premises shall be expropriated by public
or quasi-public authority, Tenant shall have the option to terminate
this Lease as of the date Tenant shall be dispossessed from the part
so expropriated by giving written notice to Landlord of such election
so to terminate within ninety (90) days from the date of such
dispossession.
(b) Restoration. In the event of an expropriation of any
portion of Tenant's Building or the parking areas on the demised
premises, and if this Lease shall not be terminated as provided above,
this Lease shall continue as to that portion of the demised premises
which shall not have been expropriated or taken, and Tenant shall,
subject to available condemnation proceeds, promptly and with due
diligence, restore Tenant's Building, as nearly as practicable, to a
complete unit of like quality and character as existed just prior to
such expropriation. To the extent Tenant is required to restore
Tenant's Building hereunder, and subject to any superior rights of the
Leasehold Mortgagee as to proceeds allocable to the Improvements, any
proceeds of the condemnation shall be deposited into a construction
disbursement escrow mutually acceptable to the parties and shall be
disbursed on a progress payment basis during the course of
construction in accordance with standard industry practice. Annual
Rent shall be reduced in the proportion that the value of the portion
of the demised premises so expropriated shall bear to the value of the
demised premises prior to such expropriation, such reduction to be
effective as of the date of expropriation. For a period of thirty
(30)
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days following any such expropriation, Landlord and Tenant shall
negotiate in good faith to determine the amount of any reduction in
Annual Rent. If Landlord and Tenant are unable to agree upon the
amount of any reduction in Annual Rent, such reduction shall be
determined as follows: Within ten (10) business days after written
demand by one party on the other, Landlord and Tenant shall each
appoint, and notify the other in writing of the appointment of, an MAI
appraiser having not less than five (5) years experience appraising
commercial properties in the San Francisco Bay Area. The two
appraisers shall promptly meet and attempt to agree upon a rent
reduction, and the determination of such appraisers shall be binding
upon Landlord and Tenant. If either party shall fail to appoint an
appraiser, the decision of the single appraiser appointed by the other
party shall be binding upon Landlord and Tenant. If the appraisers are
unable to agree upon a rent reduction within thirty (30) days after the
end of the ten (10) business day period set forth above, they shall
jointly select a third appraiser meeting the qualifications set forth
above and they shall each submit to such appraiser their final
determinations ("Final Determinations") of an appropriate rent
reduction. If the two appraisers shall fail to appoint a third
appraiser, the third appraiser shall be appointed by the presiding
judge of the Superior Court in which the demised premises are located
upon application of either Landlord or Tenant. The third appraiser
shall then independently determine the appropriate rent reduction,
which shall in no event be less than the smallest reduction set forth
in the Final Determinations or greater than the largest reduction set
forth in the Final Determinations, and such determination shall be
binding upon Landlord and Tenant. Each party shall pay the cost of its
own appraiser, and the parties shall share equally the cost of the
third appraiser.
(c) Termination. In the event this Lease shall be
terminated pursuant to this Article 16, any Annual Rent, Additional
Rent and any other charges paid in advance shall be refunded to Tenant
and Tenant shall have an additional thirty (30) days, rent free,
within which to remove its personal property, inventory and trade
fixtures from the demised premises. Tenant shall repair any damage to
the demised premises caused by removal of its trade fixtures. Nothing
herein contained shall be construed as preventing Tenant from being
entitled to any separate award made to Tenant for the taking of any
personal property, inventory or trade fixtures of Tenant, or from
claiming its award directly against the condemnor.
(d) Condemnation Award - Lease Not Terminated. In the
event of a condemnation of any portion of the Tenant's Building or the
Improvements and if this Lease is not terminated, the award paid by
the condemning authority (after payment of expenses incurred in
connection with collecting the same) shall be allocated as follows:
(1) First, Tenant shall receive so much of the
award allocable to the Improvements as is necessary to restore
the Improvements and, (i) during the first twenty (20) years
of the term of this Lease, for the value of the Improvements
taken not to exceed the outstanding principal balance of any
note secured by the
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Leasehold Mortgage, and (ii) during any Option Period, for the
unamortized cost of any improvements or alterations to the
Property constructed after the completion of the initial
Improvements contemplated by Article 1 of this Lease;
(2) Second, Tenant shall receive one-half (1/2)
of any portion of the award allocable to the value of the
leasehold estate created hereunder; and
(3) Third, Landlord shall receive the balance of
the award.
(e) Condemnation Award - Lease Terminated. In the event
of a condemnation and this Lease is terminated as herein provided, the
award paid by the condemning authority (after payment of expenses
incurred in connection with collecting the same) shall be allocated as
follows:
(1) First, to the extent the award is allocable
to the Improvements, an amount shall be paid to the Leasehold
Mortgagee, such amount not to exceed the balance due on any
note secured by the Leasehold Mortgage; and
(2) Second, to the extent that the award is
rendered during the Initial Term of this Lease and is
allocable to the Improvements, the Tenant shall receive that
proportion of the amount of the award remaining after the
payment under subparagraph (1) that the number of months
remaining in the Initial Term bears to two hundred forty
(240);
(3) Third, to the extent that the award is
rendered during any Option Period and is allocable to the
Improvements, the Tenant shall receive the amount of the award
equal to the unamortized cost of any improvements or
alterations to the Property constructed after completion of
the initial Improvements contemplated by Article 1 of this
Lease, to the extent such amount remains after payment under
subparagraph (1);
(4) Fourth, Tenant shall receive one-half (1/2)
of any portion of the award allocable to the value of the
leasehold estate created hereunder; and
(5) Fifth, the Landlord shall receive the
balance of the award.
(f) In the event of any dispute between Landlord and
Tenant concerning any matters set forth in this Article 16, Landlord
and Tenant agree to negotiate in good faith for a period of thirty
(30) days from the date either party notifies the other in writing of
the existence of such dispute, in order to attempt to resolve such
dispute. If the parties are unable to resolve the dispute through
negotiation, the matter shall be submitted to arbitration upon the
written request of one party and the service of that request on the
other party within ten (10) days following the end of such thirty (30)
day period. The
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parties may agree on one arbitrator. If they cannot agree on one
arbitrator, there shall be three: one named in writing by each of the
parties within five (5) days after demand for arbitration is given, and
a third chosen by the two appointed. Should either party refuse or
neglect to join in the appointment of the arbitrator(s) or to furnish
the arbitrator(s) with any papers or information demanded, the
arbitrator(s) may proceed ex parte. A hearing on the matter to be
arbitrated shall take place before the arbitrator(s) in the County of
San Mateo, State of California, at the time and place selected by the
arbitrator(s). The arbitrator(s) shall select the time and place
promptly and shall give each party written notice of the time and place
at least thirty (30) days before the date selected. At the hearing,
any relevant evidence may be presented by either party, and the formal
rules of evidence applicable to judicial proceedings shall not govern.
Evidence may be admitted or excluded in the sole discretion of the
arbitrator(s). The arbitrator(s) shall hear and determine the matter
and shall execute and acknowledge the award in writing and cause a copy
of the writing to be delivered to each of the parties. If there is
only one arbitrator, his or her decision shall be binding and
conclusive on the parties, and if there are three arbitrators, the
decision of any two shall be binding and conclusive. The submission of
a dispute to the arbitrator(s) and the rendering of a decision by the
arbitrator(s) shall be a condition precedent to any right of legal
action on the dispute. A judgment confirming the award may be given by
any Superior Court having jurisdiction, or that Court may vacate,
modify, or correct the award in accordance with the prevailing
provisions of the California Arbitration Act. The costs of the
arbitration shall be borne equally by the parties.
17. USE, ASSIGNMENT AND SUBLETTING.
(a) Use. The demised premises may be used for any lawful
purpose; provided, however, that for the first twelve (12) months of
the Initial Term the demised premises shall be used for a Borders
Books & Music store and for the balance of the Initial Term the
demised premises shall be used only for retail use and any office or
other use incidental to such retail use.
(b) Assignment and Subleasing. Tenant may assign this
Lease, or sublet the whole or any part of the demised premises, for
any use which is not prohibited or limited by the terms hereof, but if
it does so, Tenant shall remain liable and responsible under this
Lease. Further, no assignment shall be effective until and unless the
assignee has assumed the obligations of Tenant under this Lease which
accrue from and after the effective date of assignment. Tenant shall
notify Landlord of the identity of any assignee or sublessee, but
Tenant's failure to so notify the Landlord shall not be deemed a
default under this Lease. Any assignment of this Lease or subletting
of the demised premises without notification to Landlord shall not be
effective as to Landlord and Landlord shall not be bound thereby until
receipt of such notification and, in the case of an assignment, a copy
of the assignment and assumption has been furnished to Landlord.
Nothing in this Lease shall require Tenant to open or operate in the
demised premises.
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(c) Non-Disturbance of Sublessee. Upon request of
Tenant, Landlord shall execute and deliver to a sublessee under an
Approved Sublease (as defined below) an agreement to the effect that
notwithstanding any termination of this Lease, such sublease and the
rights of the sublessee thereunder shall not be disturbed by Landlord
but shall continue in full force and effect so long as such sublessee
shall continue to observe and perform all of its obligations under
such sublease and shall attorn to Landlord in writing. A sublease
shall be considered an "Approved Sublease" if it (1) obligates the
sublessee to pay basic or minimum rent in an amount not less than the
Annual Rent payable under this Lease, (2) obligates such sublessee to
pay the Additional Rent payable hereunder, and (3) demises and
subleases the entirety of the demised premises.
(d) Performance by Sublessee. Landlord acknowledges and
agrees to accept performance of Tenant's obligations under this Lease
by a sublessee of Tenant.
18. TENANT'S DEFAULT. The occurrence of any of the following
shall be a default on the part of Tenant hereunder:
(a) Failure to pay Annual Rent or Additional Rent at the
times or in the manner herein provided, when such failure shall
continue for a period of ten (10) days after written notice thereof
from Landlord to Tenant; any such notice shall be deemed to be the
notice required under California Code of Civil Procedure Section 1161.
No such notice shall be deemed a forfeiture or a termination of this
Lease unless Landlord expressly so elects in such notice;
(b) Failure to perform any non-monetary provision of this
Lease when such failure shall continue for a period of thirty (30)
days, or such other period as is expressly set forth herein, after
written notice thereof from Landlord to Tenant; any such notice shall
be deemed to be the notice required under California Code of Civil
Procedure Section 1161; provided that if the nature of the default is
such that it will reasonably take more than thirty (30) days to cure,
Tenant shall not be in default so long as it promptly commences and
diligently prosecutes such cure to completion. No notice of default
shall be deemed a forfeiture or a termination of this Lease unless
Landlord expressly so elects in such notice; or
(c) The abandonment of the demised premises.
19. LANDLORD'S REMEDIES. If Tenant is in default under any
provision of this Lease, Landlord shall have the following rights and remedies:
(a) terminate this Lease, and all of the rights of Tenant
under this Lease, and Tenant shall surrender the demised premises to
Landlord in accordance with Article 27 hereof;
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(b) cure the default for the account of and at the
expense of Tenant, and Tenant shall reimburse Landlord upon demand for
the reasonable cost of curing Tenant's default, plus interest at the
Default Rate (as such term is defined in Article 25 hereof);
(c) re-enter the demised premises by summary proceedings
or otherwise, expel Tenant and remove all property therefrom, use
commercially reasonable efforts to relet said premises and receive the
rent therefrom; provided, however, Tenant shall remain liable for
Annual Rent and Additional Rent less any avails of reletting, after
deducting from such avails the reasonable cost of obtaining possession
of the demised premises and the reasonable cost of any repairs and
alterations necessary to prepare it for reletting, and other costs
incurred by landlord in connection therewith. Any and all monthly
deficiencies so payable by Tenant shall be paid monthly on the date
herein provided for the payment of rent;
(d) pursue the remedy described in California Civil Code
Section 1951.4 (Lessor may continue lease in effect after Lessee's
breach and abandonment and recover rent as it becomes due, and acts of
maintenance or preservation and efforts to relet shall not constitute
a termination of Tenant's right of possession). Accordingly, if
Landlord does not elect to terminate this Lease on account of any
default by Tenant, Landlord may, from time to time, without
terminating this Lease, enforce all of its rights and remedies under
this Lease, including the right to recover all rent as it becomes due;
(e) even though Landlord may have re-entered the demised
premises, Landlord may thereafter elect to terminate this Lease and
all of the rights of Tenant in or to this Lease and the demised
premises; or
(f) pursue any and all other rights or remedies available
at law or equity.
Any notices of default by Landlord to Tenant shall constitute the
notice required by Section 1161 of the California Code of Civil Procedure.
Should Landlord elect to terminate this Lease under any of the
provisions above, Landlord shall be entitled to recover from Tenant as damages
any and all of the following: (w) the worth at the time of award of any unpaid
Annual Rent, Additional Rent and other sums due hereunder (collectively,
"Rent") that had been earned at the time of such termination; plus (x) the
worth at the time of award of the amount by which the unpaid Rent that would
have been earned after termination until the time of award exceeds the amount
of rental loss Tenant proves could have been reasonably avoided; plus (y) the
worth at the time of award of the amount by which the unpaid Rent for the
balance of the term after the time of award exceeds the amount of such rental
loss Tenant proves could be reasonably avoided; plus (z) such other reasonable
amounts in addition to or in lieu of the foregoing as may be permitted from
time to time by the laws of the State of California.
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As used in Subparagraphs (w) and (x) above, the "worth at the time of
award" is computed by allowing interest at the Default Rate. As used in
Subparagraph (y) above, the "worth at the time of award" is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent (1%).
20. BANKRUPTCY. If a petition of bankruptcy shall be filed by or
against Tenant, Tenant shall become bankrupt, Tenant shall make a general
assignment for the benefit of creditors, or in any proceeding based upon the
insolvency of Tenant, a receiver or trustee of all or a substantial portion of
the property of Tenant shall be appointed and shall not be discharged within
ninety (90) days after such appointment, then Landlord may terminate this Lease
by giving written notice to Tenant of its intention to do so; provided, however,
neither bankruptcy, insolvency, an assignment for the benefit of creditors nor
the appointment of a receiver or trustee shall affect this Lease or permit its
termination so long as the covenants on the part of Tenant to be performed shall
be timely performed by Tenant, or someone claiming under it.
21. COVENANT OF TITLE.
(a) Quiet Enjoyment. Landlord covenants, represents and
warrants that it has full right and power to execute and perform this
Lease and to grant the estate demised herein and that subject to the
terms hereof Tenant, on payment of the Annual and Additional Rent and
performance of the covenants and agreements hereof, shall peaceably
and quietly have, hold and enjoy the demised premises and all rights,
easements, appurtenances and privileges belonging or in any way
appertaining thereto during the Lease term without molestation or
hindrance of any person whomsoever, and if, at any time during the
term hereby demised the title of Landlord shall fail or it be
discovered that its title shall not enable Landlord to grant the term
hereby demised, Tenant shall have the option, at Landlord's expense,
to correct such defect or to annul and void this Lease with full
reservation of its right to damages, if any.
(b) Evidence of Title. Landlord further covenants,
represents and warrants that, with respect to the Jockey Club Parcel,
it is presently seized, and with respect to the Williams Parcel, will
following its acquisition thereof be seized, of an indefeasible estate
in fee simple to the demised premises free and clear of any liens,
encumbrances, restrictions and violations (or claims or notices
thereof), except public utility easements and covenants and
restrictions of record not impairing Tenant's use of the demised
premises, real estate taxes and special assessments not yet due and
payable, and the items set forth on Exhibit F attached hereto.
Landlord further covenants, represents and warrants that the demised
premises are not presently encumbered by, and prior to the recordation
of the Leasehold Mortgage (as defined in Article 22 hereof) will not
be encumbered by, the lien of any mortgage, deed of trust or other
security interest. Landlord shall, without expense to Tenant and
within fifteen (15) days after Landlord's acquisition of the Williams
Parcel, furnish to Tenant a copy of a title policy evidencing that
Landlord's title to the Williams Parcel is as herein represented.
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22. LEASEHOLD MORTGAGE.
(a) Tenant shall have the unrestricted right at any time
and from time to time to mortgage the demised premises, including the
Improvements, and its leasehold interest under this Lease (but not
Landlord's fee interest) for the purposes of financing or refinancing
the Improvements which have been built or are to be built pursuant to
the terms hereof, subject however to the limitations hereinafter set
forth. Any such mortgage shall be subject and subordinate to the
rights of Landlord hereunder. A mortgage of the Property and/or
Tenant's leasehold interest under this Lease is herein referred to as
a "Leasehold Mortgage," and the party holding the Leasehold Mortgage
the "Leasehold Mortgagee."
(b) No Leasehold Mortgagee shall be entitled to enjoy the
rights or benefits mentioned herein, nor shall the provisions of this
Lease pertaining to Leasehold Mortgages be binding upon Landlord,
unless Landlord shall have been given written notice of the name and
address of the Leasehold Mortgagee together with a true and correct
copy of the Leasehold Mortgage and the note secured thereby.
(c) So long as such Leasehold Mortgage shall remain in
effect, the following provisions shall apply:
(1) Landlord shall serve a copy of any notice,
including a notice of default, required to be served on Tenant
under this Lease upon such Leasehold Mortgagee at the address
provided in the notice referred to in subsection (b) hereof,
and no notice by Landlord to Tenant hereunder shall be deemed
to have been duly given unless and until a copy thereof has
been served on the Leasehold Mortgagee.
(2) In the event of a default by Tenant
hereunder, any Leasehold Mortgagee (or its agents) shall,
within the period allowed Tenant to cure such default and
otherwise as herein provided, have the right to cure such
default, or cause the same to be cured, and Landlord shall
accept such performance by or on behalf of such Leasehold
Mortgagee as if the same had been made by Tenant.
(3) For the purposes of this subsection, no event
of default shall be deemed to exist for a default which cannot
be cured within the permitted cure period as long as (i) such
default is curable, (ii) action to cure the default shall in
good faith have been commenced within the time permitted
therefor to cure the same and shall be prosecuted to
completion with diligence and continuity, and (iii) during
such extended cure period there shall occur no monetary
default hereunder on the part of Tenant which is not cured
within twenty (20) days after written notice of such default
is given to the Leasehold Mortgagee.
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(4) Notwithstanding the foregoing, upon the
occurrence of an event of default, Landlord shall take no
action to terminate this Lease without first giving to the
Leasehold Mortgagee written notice thereof and, in the event
of a monetary default, a period of fifteen (15) business days
after written notice to cure such default, or in the case of a
non-monetary default, a reasonable time thereafter (not to
exceed sixty (60) days) within which either (i) to obtain
possession of the demised premises (including possession by a
receiver) or (ii) to institute and thereafter diligently
prosecute foreclosure proceedings or otherwise acquire
Tenant's interest under this Lease, or (iii) to cure such
default. Such Leasehold Mortgagee, within sixty (60) days
after obtaining possession or acquiring Tenant's interest
under this Lease, (the "Leasehold Mortgage Cure Period"),
shall be required to cure all non-monetary defaults reasonably
susceptible of being cured by such Leasehold Mortgagee;
provided, however, that: (A) such Leasehold Mortgagee shall
not be obligated to continue such possession or to continue
such foreclosure proceedings after such defaults shall have
been cured; (B) nothing herein contained shall preclude
Landlord, subject to the provisions of this Article, from
exercising any rights or remedies under this Lease with
respect to any other default by Tenant; (C) such Leasehold
Mortgagee shall agree with Landlord in writing to comply
during the period of such forbearance with such of the terms,
conditions and covenants of this Lease as are reasonably
susceptible of being complied with by such Leasehold
Mortgagee; and (D) if a non-monetary default which the
Leasehold Mortgagee is otherwise required to cure pursuant to
the provisions of this subparagraph (c)(4) is not reasonably
susceptible to cure within the Leasehold Mortgagee Cure
Period, the Leasehold Mortgagee shall be deemed to be in
compliance with the requirements hereof as long as (i) such
default is curable, (ii) it has commenced action to cure such
default within the Leasehold Mortgagee Cure Period, and
diligently pursues such cure to completion, and (iii) during
such extended cure period there shall occur no monetary
default hereunder on the part of Tenant which is not cured
within twenty (20) days after written notice of such default
is given to the Leasehold Mortgagee. Any non-monetary default
by Tenant not reasonably susceptible of being cured by such
Leasehold Mortgagee shall be deemed to have been waived by
Landlord upon completion of such foreclosure proceedings or
upon such acquisition of Tenant's interest under this Lease,
except that any of such events of default which are reasonably
susceptible of being cured after such completion and
acquisition shall then be cured with reasonable diligence.
Such Leasehold Mortgagee or other purchaser in foreclosure
proceedings may become the legal owner and holder of Tenant's
interest under this Lease by foreclosure or assignment in lieu
of foreclosure.
(d) In the event of termination of this Lease prior to
the expiration of the term, except by reason of condemnation or
casualty as provided in Articles 15 and 16 herein or the default of
Tenant and the failure to cure such default by the Leasehold
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Mortgagee after having notice thereof as provided in subparagraph
(c)(4) above, Landlord shall serve upon the Leasehold Mortgagee written
notice that the Lease has been terminated together with a statement of
any and all sums which would at that time be due under this Lease but
for such termination, and of all other defaults, if any, under this
Lease then known to Landlord. Such Leasehold Mortgagee shall thereupon
have the option to obtain a new lease in accordance with and upon the
following terms and conditions:
(1) Upon written request of the Leasehold
Mortgagee within thirty (30) days after service of such notice
that the Lease has been terminated, Landlord shall enter into
a new lease of the demised premises with such Leasehold
Mortgagee, or his designee, as set forth in clause (2) below.
(2) Such new lease shall be effective on the date
of termination of this Lease and shall be for the remainder of
the term of this Lease, at the rent and upon all the
agreements, terms, covenants and conditions hereof, including
any applicable rights of renewal. Such new lease shall
require the tenant thereunder to perform all unfulfilled
obligations of Tenant under this Lease except those
obligations which are reasonably susceptible of being
performed only by the original Tenant under this Lease. Upon
the execution of such new lease, the tenant named therein
shall pay all sums which would at the time of the execution
thereof be due under this Lease but for such termination and
shall pay the reasonable expenses and damages incurred by
Landlord in connection with such defaults and termination, the
recovery of possession of said demised premises and the
preparation, execution and delivery of such new lease. Upon
execution and delivery of such new lease, such tenant shall be
entitled to an adjustment in the amount otherwise owed pursuant
to the terms of this paragraph, such adjustment to be equal to
the net income, if any, derived by Landlord from the demised
premises during the period from the date of termination of this
Lease to the date of execution of the new lease.
(e) Effective upon the commencement of the term of any
new lease executed pursuant to subsection (d) above, all subleases
shall be assigned and transferred without recourse by Landlord to the
tenant under such new lease and all monies on deposit with Landlord
which Tenant would have been entitled to use but for the termination
or expiration of this Lease may be used by the tenant under such new
lease for the purposes of and in accordance with the provisions of
such new lease.
(f) This Lease may not be modified, amended, or cancelled
by the mutual agreement of Landlord and Tenant or surrendered without
the express written consent of the Leasehold Mortgagee. Nothing
contained in this subsection (f) shall prevent Landlord's termination
of this Lease as a result of a default by Tenant, subject to the
rights and protections afforded the Leasehold Mortgagee under this
Lease.
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(g) If Landlord and Tenant shall acquire the interest of
the other hereunder, this Lease shall remain outstanding and no merger
of the leasehold into the fee interest shall be deemed to have
occurred.
(h) If any Leasehold Mortgagee shall acquire title to
Tenant's interest under this Lease by foreclosure, assignment in lieu
of foreclosure or otherwise, or under a new lease pursuant to
subsection (d) above, such Leasehold Mortgagee may assign such
interest under this Lease or in such new lease and shall thereupon be
released from all liability for the performance or observance of the
covenants and conditions in this Lease or in such new lease contained
on Tenant's or Tenant's part to be performed and observed from and
after the date of such assignment; provided, however, that the
assignee of such Leasehold Mortgagee shall have expressly assumed this
Lease or such new lease and written evidence thereof shall have been
submitted to Landlord; and provided further that the Landlord has
approved the assignee of the Leasehold Mortgagee, such approval not to
be unreasonably withheld or delayed.
(i) Landlord agrees to make reasonable modifications to
the terms and conditions of this Lease that do not affect or alter the
economic obligations of the parties hereto and that do not have any
material adverse effect on the rights of Landlord hereunder, to the
extent that a Leasehold Mortgagee shall require that such
modifications be made in order to make the Lease acceptable to the
Leasehold Mortgagee for the making of its loan.
23. FEE MORTGAGE. Landlord may mortgage its interest in the
demised premises provided such mortgage expressly provides that the rights and
interest of the mortgagee thereunder are subject and subordinate to the rights
and interest of Tenant hereunder and any Leasehold Mortgagee under any
Leasehold Mortgage then or thereafter existing. Notwithstanding the foregoing,
upon written request by Landlord, Tenant shall execute and deliver an agreement
in form satisfactory to Tenant subordinating this Lease to any first mortgage
encumbering the fee interest in the demised premises; provided, however, such
subordination shall be upon the express condition that the validity of this
Lease shall be recognized by such mortgagee and that, notwithstanding any
default by Landlord with respect to the mortgage, or any foreclosure or
termination thereof, Tenant's possession of the demised premises and its rights
under this Lease shall not be disturbed by such mortgagee unless and until the
occurrence of an event of default and the expiration of the cure period, if
any, with respect thereto, and this Lease and Tenant's right to possession
hereunder shall have been terminated in accordance with the provisions of this
Lease.
Provided the holder of a properly recorded first mortgage shall have
notified Tenant, in writing, that it is the holder of such lien on the demised
premises and shall so request, Tenant shall provide such holder with a
duplicate copy of any notice sent to Landlord covering a default of Landlord
hereunder and such holder shall be granted sixty (60) days after receipt
thereof to correct or remedy such default (provided however, that such holder
shall provide written notice
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to Tenant on or before the thirty-first (31st) day after receipt of Tenant's
notice of default as to whether such holder intends to cure said default,
except that if such default is not reasonably susceptible of being cured within
such sixty (60) day period, then Landlord shall not be deemed to be in default
under this Lease so long as (i) such default is curable, (ii) such holder
commences action to cure such default within such sixty (60) day period and
thereafter diligently pursues such cure to completion, and (iii) during such
extended cure period there shall occur no monetary default hereunder on the
part of Landlord which is not cured within twenty (20) days after written
notice of such default is given to such holder.
24. INDEMNIFICATIONS.
(a) Tenant's Obligation. During the Lease term, Tenant
shall indemnify and save Landlord, and its agents, employees,
successors and assigns, harmless against all penalties, loss, damage,
cost, expense (including attorneys' fees), claims or demands of
whatsoever nature arising from use or occupancy of the Property by
Tenant, its agents, contractors, employees, tenants or
concessionaires, except to the extent the same shall result, in whole
or in part, directly or indirectly, from the default or negligence of
Landlord, its agents, employees, successors and assigns, or from
Landlord's default under this Lease. Tenant waives all claims against
Landlord for damage or injury to person or property except to the
extent arising from Landlord's negligence.
(b) Landlord's Obligation. During the Lease term,
Landlord shall indemnify and save Tenant, and its agents, employees,
assignees and sublessees, harmless against all penalties,loss, damage,
cost, expense (including attorneys' fees), claims or demands of
whatsoever nature arising from all areas of the Property except to the
extent the same shall result, in whole or in part, directly or
indirectly from the default or negligence of Landlord, its agents,
employees, assignees or successors.
(c) Survival. The indemnifications set forth in this
Article 24 shall survive the expiration, cancellation or termination
of this Lease.
25. TENANT'S RIGHT TO CURE LANDLORD'S DEFAULTS. In the event
Landlord shall neglect to pay when due any obligations on any mortgage or
encumbrance affecting title to the demised premises and to which this Lease
shall be subordinate and with respect to which Tenant does not have an existing
non-disturbance agreement, or in the event Landlord shall fail to perform any
obligation specified in this Lease, or if Landlord shall be in default of any
representation, warranty, or covenant of Landlord, then Tenant may, after the
continuance of any such default for fifteen (15) days (in the case of a
monetary default) or thirty (30) days (in the case of a non-monetary default)
after written notice thereof by Tenant to Landlord, pay said principal,
interest or other charges or cure such default, all on behalf of and at the
expense of Landlord and do all necessary work and make all necessary payments
in connection therewith and Landlord shall, on demand, pay Tenant, forthwith,
the amount so paid by Tenant together with interest thereon at the rate of two
percent (2%) in excess of the prime rate of Citibank N.A.
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(the "Default Rate") or the highest rate permitted by law, whichever is the
lower, from the date of payment until re-payment. Tenant may, to the extent
necessary, after an additional ten (10) days notice to Landlord, withhold any
and all payments of Annual and Additional Rent payments thereafter due to
Landlord and apply the same to the payment of such indebtedness.
25A. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULTS. If Tenant shall
fail to perform any act herein required by it to be performed and such failure
shall not be cured within any applicable grace period provided in Article 18 of
this Lease, then Landlord shall have the right, but not the obligation, to
perform or cause to be performed such act (entering upon the Property for such
purpose, if Landlord shall so elect), and Tenant shall repay to Landlord the
entire reasonable cost and expense thereof, together with interest at the
Default Rate (as defined in Article 25 of this Lease) or the highest rate
permitted by law, whichever is the lower, from the date of payment until
repayment.
26. HAZARDOUS MATERIAL.
(a) Landlord's Representations. Tenant has provided to
Landlord a copy of a Phase One Environmental Audit dated May 6, 1996,
and prepared by Hygienetics Environmental Services, Inc. (the
"Environmental Report"). Except as disclosed in the Environmental
Report, Landlord represents that, to the best of its knowledge, there
are not now nor have there been any Hazardous Materials (as defined
below) used, generated, stored, treated or disposed of on the
Property. Landlord further represents that there are no underground
storage tanks located upon the Property. Landlord's representations
to Tenant under this Article shall survive the cancellation or
termination of this Lease. Landlord further represents and warrants
that except as noted in the Environmental Report, to the best of its
knowledge it is, and shall remain during the term of this Lease, in
compliance with all local, state and federal environmental laws
imposing obligations on the Landlord as owner of the Property except
to the extent non-compliance is the result of actions or omissions of
Tenant, its subtenants, agents, employees, contractors, assignees or
successors; provided that nothing herein shall relieve Tenant of its
obligations under subparagraph (c) below.
(b) Indemnification by Landlord. Notwithstanding any
investigation made by Landlord or Tenant, Landlord hereby indemnifies
Tenant, and Tenant's subtenants, from and against any loss, liability,
claim or expense, including, without limitation, cleanup, engineering
and attorneys fees and expenses that Tenant may incur by reason of the
above representation being false, by reason of the presence of any
Hazardous Materials in and upon the Property or by reason of any
investigation or claim of any governmental agency or third party,
except for (i) any Hazardous Materials used, generated, stored,
treated or disposed of on the Property by the Tenant, its agents,
licensees, concessionaires, contractors or employees, or (ii) any
Hazardous Materials placed upon the surface of the Property by any
party other than Landlord or its agents, licensees, concessionaires,
contractors or employees during the term of this Lease. Landlord's
representations and indemnity to Tenant under this paragraph shall
survive the cancellation or termination of this Lease.
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(c) Tenant's Representations. Tenant warrants and agrees
that it will not use, maintain, generate, store, treat or dispose of
any Hazardous Materials in or on the Property in violation of
applicable governmental regulations. Tenant hereby indemnifies
Landlord from and against any loss, liability, claim or expense,
including, without limitation, cleanup, engineering and attorneys fees
and expenses that Landlord may incur by reason of any investigation or
claim of any governmental agency or third party for any actions taken
by or omissions of Tenant, its agents, licensees, concessionaires,
contractors or employees at the Property during the term of this Lease
in violation of the above covenant. Tenant's indemnity to Landlord
under this paragraph shall survive the cancellation or termination of
this Lease.
(d) Affirmative Obligations. At any time prior to the
Rent Commencement Date, Tenant (or Tenant's contractor) may inspect
the Property for the presence of Hazardous Materials. If Hazardous
Materials are discovered on the Property beyond the levels which
require investigation and/or remediation under applicable
environmental laws, Landlord shall be required, subject to the
provisions of Article 5 above, at its sole cost and expense, to remedy
and cleanup such problem in accordance with all applicable
governmental regulations. If Landlord is unable to, or does not
remediate, such Hazardous Materials prior to the Rent Commencement
Date, Tenant may, within thirty (30) days thereafter, and without
waiving any other rights it may have at law or in equity arising out
of Landlord's breach of this Lease, cancel this Lease by giving notice
to Landlord and returning possession of the demised premises to
Landlord and, in such event, Tenant will thereafter be relieved of all
further liability under this Lease. If, after the Rent Commencement
Date, Hazardous Materials are discovered on the Property beyond the
amounts which require investigation, remediation or other action under
applicable environmental laws, and which were not caused as a result
of the acts or omissions of Tenant or its agents, licensees,
concessionaires, contractors or employees or by the placement of
Hazardous Materials onto the surface of the Property by any party
other than Landlord or its agents, licensees, concessionaires,
contractors or employees, Landlord shall be required, at its sole cost
and expense, to remedy and cleanup such conditions in accordance with
all applicable governmental regulations, and in the event such remedy
and/or cleanup requires the vacation of ten percent (10%) or more of
the Property for a period exceeding ninety (90) days, Tenant may, and
without waiving any other rights it may have at law or in equity
arising out of Landlord's breach of this Lease, with thirty (30) days
notice, cancel this Lease by giving notice to Landlord and returning
the demised premises to the Landlord and, in such event, Tenant and
Landlord will thereafter be relieved of all further liability under
this Lease (except that Landlord shall remain liable with respect to
the representations contained in Article 26(a) above. In the event
that Tenant does not elect to cancel this Lease in accordance with the
foregoing, (i) the Annual Rent, and any Additional Rent payable
hereunder, shall be equitably abated in accordance with the proportion
of the demised premises which are rendered unusable as a result of
such environmental conditions, (ii) Landlord shall promptly commence
to remedy and cleanup the Hazardous Materials conditions and
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thereafter diligently and continuously prosecute the same to
completion, and (iii) if Landlord does not so commence and diligently
and continuously prosecute such remedy and cleanup, Tenant shall have
the right, upon ten (10) days prior written notice to Landlord, to
undertake the same on Landlord's behalf and at Landlord's expense, and
all costs and expenses incurred by Tenant in connection with such
remedy and cleanup shall be payable by Landlord to Tenant and/or may
be recovered by Tenant withholding payments of Annual Rent and
Additional Rent, all in accordance with Article 25 of this Lease.
(e) Definition. For purposes of this Article, the term
"Hazardous Materials" shall mean any toxic or hazardous waste or
substances (including asbestos and petroleum products) which are
regulated by applicable local, state or federal environmental laws or
regulations.
27. CONDITION OF PREMISES AT TERMINATION. At the expiration or
earlier termination of the Lease term Tenant shall surrender the demised
premises, together with alterations, additions and improvements then a part
thereof, in good order and condition, except for the following: (a) ordinary
wear and tear, (b) repairs required to be made by Landlord, (c) subject to
Tenant's obligation to clear Tenant's Building from the demised premises in
accordance with the last sentence of Article 15(b) hereof, loss or damage by
fire, the elements and other casualty, (d) subject to Tenant's obligations
under Article 16(c) hereof, loss or damage by condemnation, and (e) any
Hazardous Materials conditions not caused by the actions of Tenant or its
agents, licensees, concessionaires, subtenants, contractors or employees. All
furniture and trade fixtures installed in Tenant's Building at the expense of
Tenant, or other occupant, shall remain the property of Tenant, or such other
occupant; provided, however, Tenant shall, at any time and from time to time,
during the Lease term, have the option to relinquish its property rights with
respect to such trade fixtures, which option shall be exercised by written
notice of such relinquishment to Landlord and, from and after the exercise of
said option, the property specified in said notice shall be the property of
Landlord.
28. HOLDING OVER. In the absence of any written agreement to the
contrary, if Tenant should remain in occupancy of the demised premises after
the expiration of the Lease term, it shall so remain as a tenant from
month-to-month and all provisions of this Lease applicable to such tenancy
shall remain in full force and effect, except that Annual Rent payable during
such holdover tenancy shall be one hundred twenty-five percent (125%) of the
Annual Rent payable at the end of the Lease term.
29. RIGHT OF FIRST OFFER. In the event Landlord desires to sell
the Property at any time during the Lease term, Landlord shall first offer to
sell the Property to Tenant upon and subject to all of the following terms,
covenants, and conditions:
(a) Initial Offer. Landlord shall deliver to Tenant a
written offer to sell which shall set forth all of the terms and
conditions upon which Landlord is willing to sell the
24
<PAGE> 28
Property to Tenant. Such offer shall specifically state the purchase
price for the Property and the proposed closing date. The purchase
price shall be payable in cash and the sale shall be without
representation or warranty, unless stated otherwise in the offer.
(b) Acceptance by Tenant. Tenant shall have thirty (30)
days following delivery of Landlord's offer within which to accept
such offer. During such thirty (30) day period, Landlord shall not
offer the Property to any other person or entity, subject,
nevertheless, to the provisions of Article 29(p). During such thirty
(30) day period Landlord and Tenant may negotiate Landlord's offer
(but nothing herein requires Landlord to change Landlord's offer) and
Landlord may, in Landlord's sole discretion, agree to make additional
offers to Tenant which may differ from the terms and conditions of
Landlord's original offer including the purchase price. Such
additional offers shall be set forth in writing. However, the thirty
(30) day period shall not be extended as a result of any additional
offers made by Landlord. Tenant may accept any of the offers made by
Landlord during said thirty (30) day period.
(c) Tenant's Rejection of Offer. If Tenant does not
accept any of Landlord's offers, in a writing signed by Tenant, within
said thirty (30) day period, such failure shall constitute a rejection
of all of Landlord's offers, and all such offers shall be deemed
terminated.
(d) Landlord's Right to Sell to Third Party. If Tenant
rejects all of Landlord's offers within said thirty (30) day period,
Landlord shall have the right to offer the Property for sale to third
parties upon any terms, covenants, and conditions desired by Landlord.
Landlord shall have the right to contract to sell and convey the
Property free and clear of any rights of Tenant to purchase the
Property provided that:
(1) the contract for the sale of the Property is
entered into within six (6) months following (X) the
expiration of the thirty (30) day period set forth in Article
29(b) above; or (Y) the expiration of the period or periods
referred to in Article 29(g) below, whichever shall later
occur; and
(2) the purchase price for the Property (the
"Outside Purchase Price") is "Substantially Similar" to the
best purchase price offered to Tenant, as such term is
hereinafter defined.
(e) Substantially Similar Purchase Price. The Outside
Purchase Price shall be deemed to be "Substantially Similar" to the
best purchase price offered to Tenant if the total Outside Purchase
Price is not less than ninety-five percent (95%) of the lowest total
purchase price offered to Tenant (whether pursuant to Article 29(a) or
Article 29(g). An Outside Purchase Price which is equal to or greater
than ninety-five percent (95%) of the best purchase price offered to
Tenant shall be deemed "Substantially Similar" under this Subsection
(e).
25
<PAGE> 29
(f) Obligations of Tenant. Within three (3) business
days after request by Landlord, which request shall set forth the
terms of a proposed Outside Purchase Price, Tenant shall certify, in
writing, addressed to Landlord and to any third parties designated by
Landlord, that the proposed Outside Purchase Price is Substantially
Similar to the best purchase price offered to Tenant.
(g) Re-Offer to Tenant at Lower Price. If Landlord
desires to sell the Property for a more favorable purchase price which
is not Substantially Similar to the best purchase price previously
offered to Tenant, Landlord shall offer to sell the Property, in
writing, to Tenant at such more favorable purchase price. Tenant
shall have five (5) business days within which to accept, in a writing
signed by Tenant, the more favorable purchase price. If Tenant fails
to accept such purchase price within said five (5) business day
period, such offer shall be deemed rejected and shall terminate. From
and after such rejection, such more favorable purchase price offered
to Tenant shall be used as the best purchase price offered to Tenant,
under Articles 29(d) and 29(e), to determine whether the Outside
Purchase Price offered to third parties is Substantially Similar to
the best purchase price offered to Tenant.
(h) Acceptance of Offer by Tenant. If Tenant accepts any
of the offers made by Landlord during the initial thirty (30) day
period referred to in Article 29(b), the Property shall be sold and
conveyed to Tenant in accordance with the terms and conditions of the
offer so accepted by Tenant. If Tenant accepts the more favorable
purchase price offered by Landlord pursuant to Article 29(g), the
Property shall be sold and conveyed to Tenant in accordance with the
terms and conditions of the offer accepted by Tenant. As a condition
to the effectiveness of the acceptance by Tenant of any offer made by
Landlord, Tenant shall deliver to Landlord, concurrently with Tenant's
written acceptance, cash in a sum equal to ten percent (10%) of the
purchase price, which shall constitute a deposit under the agreement
between Landlord and Tenant for the sale of the Property and such
deposit shall constitute liquidated damages to Landlord in the event
of a default by Tenant and Tenant shall, as a further condition to the
effectiveness of Tenant's acceptance of Landlord's offer, sign and
initial a provision complying with all California statutory requisites
for the enforcement of liquidated damages provision. Such provision
for liquidated damages shall be Landlord's sole remedy and Landlord
shall not seek specific performance.
(i) Re-Offer to Tenant if Property Not Sold. If Landlord
has not executed a contract to sell the Property within the time
period set forth in Article 29(d), Landlord shall be required to
comply with all of the provisions of this Article 29 before again
offering the Property for sale to third parties subsequent to such
period.
(j) Re-Offer to Tenant if Outside Purchase Price Not
Substantially Similar. If Landlord enters into a contract to sell the
Property for an Outside Purchase Price which is not Substantially
Similar to the best purchase price offered to Tenant, such
26
<PAGE> 30
contract shall be and remain subject to Tenant's rights hereunder.
Landlord shall have the obligation to offer such Outside Purchase Price
to Tenant pursuant to Article 29(a) and if Tenant accepts same,
Tenant's rights under Article 29(h) shall be superior to the rights of
the purchaser under such contract; provided that if Tenant rejects such
offer pursuant to Article 29(a), Tenant's rights to purchase the
Property shall automatically terminate and such purchaser shall take
title to the Property free and clear of Tenant's rights to purchase the
Property.
(k) Sale of Property to Third Party. If Landlord sells
and conveys the Property to a third party pursuant to Article 29(d) or
pursuant to Article 29(j) (after Tenant has rejected Landlord's offer
to Tenant as therein specified), such third party purchaser shall take
title to the Property free and clear of Tenant's rights to purchase
the Property. Such third party purchaser and all parties thereafter
claiming under such third party purchaser shall have the right to
thereafter sell and convey the Property unencumbered by the provisions
of this Article 29 and without offering the Property for sale to
Tenant. Upon such sale by Landlord pursuant to Article 29(d) or
Article 29(j), Tenant shall execute and deliver to Landlord and/or
such purchaser any and all documents and instruments reasonably
requested by Landlord and/or such purchaser terminating Tenant's
rights under this Article 29.
(l) Right of First Offer Not Applicable. The provisions
of this Article 29 are not applicable, and Tenant shall have no right
to purchase the Property under this Article 29 and Landlord shall have
no obligation to offer to sell the Property to Tenant (i) upon or with
respect to one or more mortgages or deeds of trust given by Landlord
covering or affecting the Property or any other transfer,
hypothecation, assignment or other conveyance in the nature of
security for the repayment of indebtedness, or (ii) upon or with
respect to a contribution of the Property to the capital of an entity
in which Landlord will immediately following such contribution own at
least a twenty percent (20%) equity interest, or (iii) to a sale or
transfer of the Property as part of a transaction involving the sale
or transfer of all or a substantial portion of Landlord's assets
except where the Property and Landlord's leasehold interest hereunder
are the only assets of substantial value being sold in such
transaction.
(m) Rights Not Separately Assignable. Tenant's rights
under this Article 29 may not be assigned, transferred or conveyed
separately from the Lease.
(n) Tenant's Obligation to Make Claims. In the event
Tenant has notice of an intended sale by Landlord to a third party,
Tenant shall have the obligation, upon inquiry by either Landlord or
any proposed purchaser, to deliver, in a writing signed by Tenant, a
certificate stating that: (i) Landlord has complied with the
provisions of this Article 29 and such sale may be consummated free
and clear of Tenant's rights under this Article 29; or (ii) this
Article 29 is not applicable to such sale; or (iii) Landlord has not
complied with this Article 29, this Article 29 is applicable to such
sale and that Tenant
27
<PAGE> 31
intends to make a claim to enforce its rights under this Article 29,
as the case may be. Such certificate shall be delivered promptly
after request therefor but in any event within five (5) days after
request therefor.
(o) Termination. The rights granted under this Article
29 shall terminate and shall have no further force or effect (i) on
the date of the expiration or earlier termination of the Lease, (ii)
upon assignment of this Lease to any entity other than the Developer
(as defined in Article 2(e) of this Lease), Tenant or any parent or
subsidiary of Tenant (by way of reassignment from Developer), or any
holder of a Leasehold Mortgage where the assignment to such holder is
solely for security purposes, or (iii) as otherwise expressly
provided in this Article 29, whichever first occurs.
(p) Miscellaneous.
(1) Notwithstanding the provisions of Article
29(b), Landlord may offer the Property for sale and negotiate
with other third parties concerning the sale of the Property
during the thirty (30) day period referred to therein provided
that any contract of sale entered into by Landlord during such
thirty (30) day period shall be subject and subordinate to
Tenant's rights to accept Landlord's offer during such thirty
(30) day period, and purchase the Property pursuant thereto.
(2) As used in this Article 29, a contract for
the sale of the Property is "entered into" when Landlord and
the contract vendee have executed and delivered an agreement
for the sale of the Property.
30. SIGNAGE. Tenant shall have the right to place the maximum
amount of exterior signage on Tenant's Building and on the Property as may be
permitted by applicable governmental laws or ordinances, including but not
limited to the right to construct freestanding signs.
31. NOTICES. All notices, demands and other communications
required or permitted to be given under this Lease shall be in writing and
shall be deemed to be given when delivered (or, if delivery is refused, on the
date delivery was attempted) if sent by recognized overnight courier, or upon
three (3) business days after deposit in the U.S. Mail if sent by certified or
registered mail, postage prepaid. All notices shall be addressed to Landlord
or to Tenant at the following addresses:
<TABLE>
<S> <C>
Tenant: Borders, Inc.
311 Maynard Street
Ann Arbor, Michigan 48104
Attention: Vice President - Development
</TABLE>
28
<PAGE> 32
<TABLE>
<S> <C>
with a copy to: Rosenfeld & Wolff
2049 Century Park East
Suite 600
Los Angeles, California 90067
Attention: Alan D. Aronson, Esq.
Landlord: California Jockey Club
2600 Delaware Street
San Mateo, California 94403
with a copy to: Carr, McClellan, Ingersoll, Thompson
& Horn
216 Park Road
P.O. Box 513
Burlingame, California 94011
Attention: Norman I. Book, Jr., Esq.
</TABLE>
or to any subsequent address which Landlord or Tenant shall designate for such
purpose.
32. PARTIAL INVALIDITY. If any term, covenant or condition of
this Lease or the application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Lease or the
application of such term, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable shall not be
affected thereby and each term, covenant or condition of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
33. ENTIRE AGREEMENT - APPLICABLE LAW. This Lease, the exhibits
and amendments or addenda, if any, attached hereto and forming a part hereof,
set forth all the covenants, promises, agreements, conditions, provisions and
understandings between Landlord and Tenant concerning the demised premises and
there are no covenants, promises, agreements, conditions, provisions or
understandings, either oral or written, between them other than are herein set
forth. No alteration, amendment, change or addition to this Lease shall be
binding upon Landlord or Tenant unless reduced to writing and signed by each
party. This Lease shall be governed by and construed in accordance with the
laws of the State in which the demised premises are located.
34. SUCCESSORS AND ASSIGNS. Subject to the provisions on
assignment set forth in this Lease, the conditions, covenants and agreements
contained in this Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators,
successors and assigns. The covenants contained herein shall be deemed to be
covenants running with the demised premises and shall be binding upon all
owners, users and occupants of such land for so long as this Lease remains in
effect. The restrictions, benefits and obligations under this Lease shall be
deemed to create mutual and reciprocal benefits and servitudes
29
<PAGE> 33
upon the demised premises, which shall run with and against said property and
be a benefit and burden thereon, except that said restrictions, benefits and
obligations shall cease and be of no further force or effect after the
termination of this Lease.
35. MEMORANDUM OF LEASE. The parties shall, concurrently with the
execution and delivery of this Lease, execute and deliver a memorandum of lease
which Landlord shall, at its sole expense, cause to be recorded as an
encumbrance against the demised premises within ten (10) days following the
date upon which the last of all contingencies to the effectiveness of this
Lease has been satisfied or waived. Upon the expiration or sooner termination
of this Lease, Tenant will execute a document for recordation confirming that
this Lease has terminated.
36. BROKER'S REPRESENTATION. Landlord represents that it dealt
with no broker or brokers and Tenant represents that it dealt with no broker or
brokers in connection with the negotiation, execution and delivery of this
Lease. Landlord and Tenant shall, and do hereby, indemnify and save the other
harmless from and against any losses, damages, penalties, claims or demands of
whatsoever nature arising from a breach of its foregoing representation
including, without limitation, reasonable attorneys' fees and expenses. The
representations and indemnifications set forth in this Article shall survive
the cancellation or termination of this Lease.
37. ESTOPPEL CERTIFICATES. Within twenty (20) days after request
by either party, the other party shall execute and deliver to the requesting
party a written certificate as to the status of this Lease, any existing
defaults, the status of the payments and performance of the parties required
hereunder and such other information that may be reasonably requested.
38. CAPTIONS AND DEFINITIONS. Marginal captions of this Lease are
solely for convenience of reference and shall not in any way limit or amplify
the terms and provisions thereof. The necessary grammatical changes which
shall be required to make the provision of this Lease apply (a) in the plural
sense if there shall be more than one Landlord or Tenant and (b) to any
landlord or tenant, which shall be either a corporation, an association, a
partnership or an individual, male or female, shall in all instances be assumed
as though in each case fully expressed.
39. SURVIVAL. Unless otherwise provided, upon the termination of
this Lease under any of the Articles hereof, the parties hereto shall be
relieved of any further liability hereunder except as to acts, omissions or
defaults occurring prior to such termination.
40. DUE DILIGENCE CONTINGENCY. Tenant's obligations under this
Lease are contingent upon Tenant's approval of the suitability of the demised
premises for Tenant's intended development and use thereof. Tenant, and its
agents, employees and contractors, at Tenant's expense and at reasonable times,
shall have a period of sixty (60) days from the date of this Lease (the "Due
Diligence Period") to enter upon the demised premises for the purpose of making
a diligent, prudent and confidential inspection to explore the potential
development of the demised premises, by examining, testing and surveying the
demised premises. The
30
<PAGE> 34
inspections relating to the demised premises may include, but shall not be
limited to, examination of title, site survey, availability of a building
permit for construction of Tenant's Work, zoning or use restrictions, present
and future access, geological or environmental testing, drainage conditions on
the demised premises, excessive levels of radon, toxic waste, hazardous
substances including, but not limited to asbestos or other undesirable
substances, and any other condition or circumstance which may adversely affect
the demised premises or Tenant's operations thereon. Landlord agrees to
cooperate with Tenant during the Due Diligence Period in providing and allowing
Tenant to photocopy all related documents which Landlord may possess relating
to the demised premises and in executing any applications required to be
submitted to the City or County, any planning commission, or government agency
or authority presiding over the demised premises affecting the Tenant's
intended use of the demised premises and which are consistent with the intent
and purpose of this Lease. In the event Tenant's due diligence with respect to
the demised premises produces results that are unsatisfactory to Tenant for any
reason, Tenant may, at its sole option, and without specifying the matters
which are unsatisfactory to Tenant, within ten (10) days after the end of the
Due Diligence Period, terminate this Lease, upon which termination neither
party shall have any further rights, duties or obligations hereunder. Upon
satisfaction or waiver of the contingency set forth herein, and subject to
Landlord's obligations, covenants, representations and warranties under this
Lease, Tenant shall accept the demised premises in their "as-is" condition.
Tenant shall conduct no drilling on the demised premises except solely for the
purpose of determining the adequacy of the soils condition to support
construction of the Improvements.
41. SITE PLAN APPROVAL/PERMIT CONTINGENCY. Tenant's obligations
under this Lease are contingent upon the receipt by Tenant of (or assurance
satisfactory to Tenant in its sole and absolute discretion that Tenant shall
receive) (i) site plan approval and all required permits and licenses for the
construction of the Improvements as generally shown on the attached Exhibit B,
(ii) written assurance from the City of San Mateo and any other governmental
authorities exercising jurisdiction that the demised premises are properly
zoned for use as a retail store selling books, periodicals, newspapers, music
and video products, CD-ROM's and other computer software, and the operation of
a coffee bar selling food and beverage items (the "Intended Use"), and (iii)
all required permits and licenses for the Intended Use (other than permits and
licenses which are conditioned upon completion of Tenant's Work or store
opening) within one hundred eighty (180) days from the date hereof. Landlord
agrees that upon the request of Tenant and at Tenant's sole cost and expense,
Landlord shall execute and deliver such instruments and perform such other acts
as shall be required for Tenant to secure any such approvals, permits, licenses
or assurances, including but not limited to instruments creating a single legal
parcel out of the multiple parcels comprising the demised premises or covenants
to hold such parcels as a single parcel. In the event that the foregoing
contingency is not satisfied or waived in writing by Tenant within the time
period specified, then this Lease shall terminate and neither party shall have
any further rights, duties or obligations hereunder.
42. ADJACENT PROPERTY ACQUISITION CONTINGENCY. This Lease is
contingent upon the acquisition by Landlord of fee title to the Williams Parcel
within one hundred eighty
31
<PAGE> 35
(180) days from the date of this Lease. Promptly following mutual execution
and delivery of this Lease, Tenant shall assign to Landlord all of Tenant's
rights and obligations under its agreement (the "Purchase Agreement") to
purchase the Williams Parcel. Landlord agrees to use its reasonable best
efforts to complete the purchase of the Williams Parcel in accordance with the
terms of such Purchase Agreement. In the event that the foregoing contingency
is not removed within the time period specified, then this Lease shall
terminate and neither party shall have any further rights, duties or
obligations hereunder; provided, if such contingency fails due to Landlord's
failure to use its best reasonable efforts to complete the purchase of the
Williams Parcel or Landlord's default under the Purchase Agreement, Landlord
shall be liable to Tenant and Developer for all out of pocket costs incurred by
Tenant and Developer in connection with this Lease. In no event shall Landlord
have any obligation to complete such purchase prior to satisfaction or waiver
by Tenant of the contingencies described in Articles 40, 41 and 43 hereof and
satisfaction of the contingency set forth in Article 44 hereof. Landlord
acknowledges that Tenant will attempt to obtain a credit against the purchase
price for the Williams Parcel in order to compensate Tenant for the costs
Tenant will occur in abating asbestos containing materials from the buildings
located on the Williams Parcel. Landlord agrees that if Tenant succeeds in
obtaining such a credit, Landlord shall pay an amount equal to such credit to
Tenant within ten (10) days following Landlord's acquisition of the Williams
Parcel; provided, that if Landlord shall fail to pay such amount to Tenant, then
Tenant, in addition to its other remedies hereunder, shall have the right to
offset such amount against its Annual Rent hereunder.
43. FINANCING CONTINGENCY. Tenant's obligations under this Lease
are contingent upon Tenant securing financing for construction of the
Improvements upon terms and conditions acceptable to Tenant in its sole and
absolute discretion within sixty (60) days following satisfaction or waiver of
the contingencies set forth in Articles 41 and 42 hereof. In the event that
the foregoing contingency is not satisfied or waived in writing by Tenant
within the time period specified, then this Lease shall terminate and neither
party shall have any further rights, duties or obligations hereunder.
44. QUIET TITLE CONTINGENCY. This Lease is contingent upon
Landlord successfully quieting title to the demised premises as against any
rights in third parties to cross over the demised premises between El Camino
Real and areas to the west of the demised premises, within sixty (60) days from
the date of this Lease. Landlord agrees to diligently pursue such quiet title
action during such sixty (60) day period. In the event the foregoing
contingency is not satisfied or waived in writing by Tenant within the time
period specified, then this Lease shall terminate and neither party shall have
any further rights, duties or obligations hereunder.
32
<PAGE> 36
45. TIME OF ESSENCE. Time is of the essence of this Lease and the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
<TABLE>
<S> <C>
WITNESSES: BORDERS, INC.
- ------------------------- By: /s/ Richard Flanagan
------------------------
- ------------------------- Its: President and COO
CALIFORNIA JOCKEY CLUB, A REAL
ESTATE INVESTMENT TRUST
- ------------------------- By: /s/ James M. Harris
------------------------
- ------------------------- Its: President
</TABLE>
33
<PAGE> 1
EXHIBIT 22.1
SUBSIDIARY OF THE REGISTRANTS
Bay Meadows Catering, a California corporation, is the only subsidiary of Bay
Meadows Operating Company.
California Jockey Club has no subsidiaries.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in Registration Statement
No. 33-20315 of California Jockey Club and Bay Meadows Operating Company on
Form S-8 of our report dated March 28, 1997 (which expresses an unqualified
opinion and includes an explanatory paragraph relating to a proposed merger and
certain disagreements between the Companies), appearing in this Annual Report
on Form 10-K of California Jockey Club and of Bay Meadows Operating Company for
the year ended December 31, 1996.
/s/ Deloitte & Touche LLP
March 28, 1997
San Francisco, California
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
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<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 9-MOS YEAR
<FISCAL-YEAR-END> DEC-31-1996 DEC-31-1996
<PERIOD-START> JUL-01-1996 JAN-01-1996
<PERIOD-END> SEP-30-1996 DEC-31-1996
<CASH> 10,533 2,027
<SECURITIES> 6,758 2,612
<RECEIVABLES> 870 527
<ALLOWANCES> (77) 77
<INVENTORY> 0 0
<CURRENT-ASSETS> 21,105 10,154
<PP&E> 39,362 39,291
<DEPRECIATION> (21,967) (22,092)
<TOTAL-ASSETS> 38,694 27,676
<CURRENT-LIABILITIES> 14,793 6,211
<BONDS> 0 0
0 0
0 0
<COMMON> 116 116
<OTHER-SE> 23,785 21,344
<TOTAL-LIABILITY-AND-EQUITY> 38,694 27,349
<SALES> 2,205 3,038
<TOTAL-REVENUES> 41,774 53,932
<CGS> 729 926
<TOTAL-COSTS> 38,675 54,434
<OTHER-EXPENSES> 0 0
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 0 0
<INCOME-PRETAX> (501) (501)
<INCOME-TAX> 260 260
<INCOME-CONTINUING> (761) (761)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (761) (761)
<EPS-PRIMARY> (.13) (.13)
<EPS-DILUTED> (.13) (.13)
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<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
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<PERIOD-END> DEC-31-1996
<CASH> 889
<SECURITIES> 0
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<ALLOWANCES> 77
<INVENTORY> 0
<CURRENT-ASSETS> 1,902
<PP&E> 10,572
<DEPRECIATION> (61,637)
<TOTAL-ASSETS> 6,634
<CURRENT-LIABILITIES> 4,950
<BONDS> 0
0
0
<COMMON> 58
<OTHER-SE> 1,626
<TOTAL-LIABILITY-AND-EQUITY> 6,634
<SALES> 3,038
<TOTAL-REVENUES> 53,472
<CGS> 926
<TOTAL-COSTS> 52,757
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 715
<INCOME-TAX> 260
<INCOME-CONTINUING> 455
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 455
<EPS-PRIMARY> .08
<EPS-DILUTED> .08
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 1,138
<SECURITIES> 2,612
<RECEIVABLES> 2,368
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 10,584
<PP&E> 28,719
<DEPRECIATION> (15,929)
<TOTAL-ASSETS> 23,374
<CURRENT-LIABILITIES> 3,593
<BONDS> 0
0
0
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<EPS-PRIMARY> (.21)
<EPS-DILUTED> (.21)
</TABLE>
