EXHIBIT 10.1
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SALE AND PURCHASE AGREEMENT
by and between
WESTON HILLS COUNTRY CLUB LIMITED PARTNERSHIP
together with
ARVIDA/JMB PARTNERS,
as Sellers
and
HILLWOOD ENTERPRISES, L.P.,
as Purchaser
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SALE AND PURCHASE AGREEMENT
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THIS SALE AND PURCHASE AGREEMENT ("Agreement") dated as of August 23,
2002, is entered into by and between WESTON HILLS COUNTRY CLUB LIMITED
PARTNERSHIP, a Delaware limited partnership ("Weston Hills") and ARVIDA/JMB
PARTNERS, a Florida general partnership ("Arvida," and together with Weston
Hills, the "Sellers") and HILLWOOD ENTERPRISES, L.P., a Texas limited
partnership ("Purchaser"). Sellers and Purchaser may be referred to
collectively in this Agreement as the "Parties" or individually as a
"Party".
W I T N E S S E T H:
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WHEREAS, Sellers are the owners of the Property (as hereinafter
defined) located within Arvida's Weston in Broward County, Florida, and of
the golf and country club operation conducted thereon, all of which is
commonly known as the "Weston Hills Country Club"; and
WHEREAS, Purchaser desires to purchase, and Sellers desire to sell,
the Property, such sale and purchase to occur on the terms and conditions
set forth herein.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained in this Agreement, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, the Parties hereby agree as follows:
1. DEFINITIONS
1.1 DEFINITIONS. For all purposes of this Agreement, the
following terms will have the respective meanings as set forth in this
Section.
(a) "Accounts Receivable" means the accounts receivable
of the Club as of the Closing Date as shown on the Records of the Club and
calculated in a manner consistent with the historical accounting principles
applied by the Club, including (i) delinquent annual dues and charges
existing as of the Closing Date, (ii) uncollected membership dues that were
billed prior to the Closing (subject to proration) and (iii) unpaid credit
card receivables and other accounts receivable of the Club. The term
"Accounts Receivable" excludes the Member Installment Obligations, as
defined below.
(b) "Additional Contract" means any contract,
commitment and/or agreement, other than a Contract, that: (i) is disclosed
to Purchaser prior to or at Closing and (a) is entered into in the ordinary
course of business consistent with prior practices, (b) may be terminated
upon thirty (30) days notice, and (c) has obligations which do not exceed
Ten Thousand and 00/100 Dollars ($10,000.00) or (ii) is consented to by
Purchaser prior to or at Closing.
(c) "Additional Deposit" is defined in SECTION 2.4
hereof.
(d) "Affiliate" means a person or entity which (either
directly or indirectly, through one or more intermediaries) controls, is
under common control with or is controlled by the specified person or
entity. For the purposes of this definition, the term "control" (including
the correlative terms "controlled by" and "under common control with")
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of the specified person
or entity, whether through the ownership of voting securities, the ability
to appoint one or more of an entity's trustees, directors or persons in a
similar capacity, or otherwise.
(e) "Agreement" is defined in the introductory
paragraph hereof.
(f) "Arvida" is defined in the introductory paragraph
hereof.
(g) "Arvida Golf Designees" is defined in SECTION 6.1
hereof.
(h) "Arvida Golf Memberships" is defined in SECTION 6.1
hereof.
(i) "Arvida's Weston" means that portion of the City of
Weston, Florida, developed by Arvida under the DRI.
(j) "Assumed Obligations" is defined in SECTION 6.10
hereof.
(k) "Available Vacation and Sick Pay" means that
vacation and sick pay earned as of the Closing Date by employees of the
Club, calculated in accordance with the Club's vacation and sick pay
policy.
(l) "Baxas Settlement Agreement" means the Agreement
Regarding Membership Privileges between Arvida and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ et al.,
dated January 29, 1997, and recorded in Official Records Book 26399, Page
0203, of the Public Records of Broward County, Florida, pertaining to
settled litigation concerning Members of the Club.
(m) "Bunker Contract" means the contract between Weston
Hills and The ▇▇▇▇▇ Company, LLC d/b/a ▇▇▇▇▇ Golf International dated May
31, 2002 for the renovations to the bunkers on the Players Golf Course.
(n) "Business Day" mean any day that banks are required
to be open for business in Broward County, Florida.
(o) "Closing" means the consummation of the sale and
purchase as provided herein.
(p) "Closing Date" means the thirtieth (30th) calendar
day following the Effective Date.
(q) "Closing Documents" means all documents delivered
to Purchaser at Closing by Seller.
(r) "Closing Location" means (i) the offices of White &
Case LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or
(ii) such other location as may be required by Purchaser's lender, or as to
which the Parties hereto agree.
(s) "Club" means the business operated under the name
"Weston Hills Country Club," a golf and country club operated for the
sporting and social enjoyment of the Members pursuant to the Membership
Plan Documents and Membership Agreements.
(t) "Club Facilities" means, collectively, the Golf
Courses, clubhouse, storage buildings, maintenance building, tennis pro
shop and fitness facilities, golf pro shop, aquatic center and related
buildings and all other improvements and amenities located on the Land,
including the temporary building from which the ▇▇▇▇▇▇ school is operating.
(u) "Completion Date" means the earlier of December 31,
2003, or the date when Arvida has conveyed to third-party purchasers all of
its right, title and interest in all residential lots, units or vacant land
within Arvida's Weston.
(v) "Confidentiality Agreement" is defined in SECTION
6.8 hereof.
(w) "Consumable Inventory" means usable (not spoiled or
outdated) unopened and sealed food, beverage and liquor inventory.
(x) "Contracts" (individually, a "Contract") means all
contracts and agreements, including the Bunker Contract and Membership
Agreements, affecting or relating to the ownership or operation of the
Property, the Club or the Club Facilities, which contracts and agreements
are listed on SCHEDULE 7.2(h) and SCHEDULE 7.2(k).
(y) "Damages" means, as to any Person, all monetary
damages, losses, costs and expenses incurred by such Person, including all
reasonable legal fees and costs incurred in connection with any arbitration
and/or litigation (at trial and appellate levels), excluding, however, any
consequential or punitive damages.
(z) "Deposits" is defined in SECTION 2.4 hereof.
(aa) "DRI" means City of Weston Ordinance No. 2002-17,
Amended and Restated Development Order for Indian Trace Development
District (Weston), of Broward County, Florida.
(bb) "Due Diligence Period" means the period between
June 25th, 2002 and the Effective Date.
(cc) "Effective Date" means the date upon which
counterparts of this Agreement are fully and duly executed by Sellers and
Purchaser.
(dd) "Environmental Law(s)" means any law, regulation,
rule, ordinance, or legally enforceable requirement of any Governmental
Authority relating to the use, generation, processing, release, discharge,
storage, disposal or treatment of Hazardous Materials.
(ee) "Escrow Agent" means Republic Title of Texas, Inc.
(ff) "Force Majeure" means any delay caused by any
(i) strike(s), lockout(s), or labor dispute(s), (ii) inability to obtain
labor or materials, or reasonable substitutes therefor, or (iii) acts of
God, governmental restrictions, regulations or controls, enemy or hostile
governmental action, civil commotion, fire, or other casualty.
(gg) "Golf Courses" means the two (2) eighteen (18) hole
golf courses (known as the "Tour Course" and the "Players Course") located
on the Land, and the driving ranges and practice facilities, cart paths
(and any easements), irrigation systems, drainage systems, retention
ponds/lakes, pumps and control systems, halfway-house and bathroom
facilities, weather station, signage and all such other improvements
related to the operation thereof.
(hh) "Governmental Authority" means any federal, state,
county, municipal, or other governmental department, entity, authority,
bureau, court, or agency with jurisdiction over the Property.
(ii) "Hazardous Materials" means (i) hazardous, toxic,
ignitable, corrosive, reactive or toxic materials, substances or wastes
regulated by any Governmental Authority, (ii) any material, substance, or
waste which is defined or regulated as a hazardous material, extremely
hazardous material, hazardous waste or toxic substance pursuant to any
Environmental Law, (iii) asbestos, (iv) petroleum and petroleum-based
products, (v) formaldehyde, (vi) polychlorinated biphenyls (PCBs), and
(vii) freon and other chlorofluorocarbons.
(jj) "Improvements" means all improvements, structures,
and fixtures placed, constructed, or installed on the Land, including, but
not limited to, the Club Facilities, all cart paths, tees, greens,
irrigation and drainage systems, including the sprinklers, pipes, fittings
and pumps, paving, walkways, pump stations, cart barn, entrance signage
owned by Sellers and parking facilities located thereon (including all
replacements or additions thereto between the Effective Date and the
Closing Date), and all systems, facilities, fixtures, machinery, equipment,
and conduits to provide fire protection, security, heat, exhaust,
ventilation, air conditioning, electrical power, light, plumbing,
refrigeration, gas, sewer, and water facilities.
(kk) "Including," "include" or "includes" means the
universe to which reference is made, without limitation to specific parts
of that universe.
(ll) "Indemnified Claim" is defined in SECTION 6.5
hereof.
(mm) "Indian Trace Development District" means the
Development District of the City of Weston, as successor-in-interest to the
Indian Trace Community Development District, which provides and administers
stormwater management and other services.
(nn) "Initial Deposit" is defined in SECTION 2.4 hereof.
(oo) "Intangible Personal Property" means the Accounts
Receivable, the Contracts, the Permits and Licenses, the Warranties,
Sellers' rights with respect to hosting the tournaments, banquets and
special events to occur at the Club after Closing (which are identified on
Schedule 6.10) and, to the extent owned by Sellers and assignable by
Sellers without the consent of any other party, any and all plans, drawings
and specifications regarding the Improvements and any and all surveys,
reports and studies in Sellers' possession with respect to the Property.
Intangible Personal Property includes transferable computer software and
information systems licenses held by Sellers and used in the operations of
the Club on the Effective Date, all data and source records and software
necessary to provide a fully functioning computer information system on the
Closing Date which is not less than the system in place at the Club on the
Effective Date, except that Sellers will not provide hardware or software
for e-mail, Internet access, timeclocks, accounts payable, general ledger
and fixed assets accounting, or for human resources and payroll processing,
except as provided in the Interim Accounting Agreement. Intangible
Personal Property shall include all rights of Sellers or its Affiliates
which (i) run with the Land, (ii) concern the ownership or operation of the
Property or the Club, including, (a) all rights, benefits and privileges
afforded the "Golf Course Operator" in the various Declarations of
Covenants for the Weston Hills community adjacent to the Land, (b) the
developer's benefits and protections under the disclaimers of liability,
and exemptions from architectural approval requirements and use restriction
enforcement, under the Amended and Restated Declaration of Town Foundation
Covenants (as further amended and supplemented) and (c) the rights and
benefits under any and all easements, maintenance agreements and similar
documents recorded or to be recorded with respect to the Land and/or
adjoining or nearby properties which are common areas under any of the
aforesaid Declarations of Covenants. Intangible Personal Property shall
include any trade names, trademarks, service marks or logos in connection
with the name, Weston Hills Country Club, which shall be included in the
Intangible Personal Property and quitclaimed to Purchaser as described in
SECTION 6.6 hereof; provided however, Sellers retain all rights, title and
interest to the name "Weston" and any trade names, trademarks, service
marks or logos in connection with that name. Where any item of Intangible
Personal Property pertains not only to the Club, the Club Facilities or the
Property, but also to other business operations, facilities or properties,
the term Intangible Personal Property as used herein refers to the item in
question, only to the extent that it is used with or pertains to the Club
and the Property.
(pp) "Interim Accounting Agreement" means the agreement
in the form of EXHIBIT L between Sellers and Purchaser in which Sellers
agrees to provide, at Purchaser's cost, certain interim accounting
processing for a period of six (6) calendar months after the Closing Date,
pursuant to the terms and conditions recited therein.
(qq) "Inventory" means all (i) Consumable Inventory,
(ii) Saleable Inventory and (iii) Supply Inventory.
(rr) "Land" means the real property, comprising
approximately 350 acres, on which the Golf Courses and the Club Facilities
are situated, located within Arvida's Weston in Broward County, Florida, as
more particularly described in EXHIBIT "A" attached hereto and incorporated
herein.
(ss) "Legal Requirements" means all laws, statutes,
codes, acts, ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, orders, directions, and
requirements of all Governmental Authorities (including, for purposes
hereof, any local Board of Fire Underwriters), and the operation thereof,
and all deed restrictions or other covenants, restrictions, or agreements
of record, site plan approvals, zoning or subdivision regulations, and
urban redevelopment plans governing or regulating the use or operation of
the Property, including, the DRI, the PDD, and any ordinance or regulation
of the City of Weston or the Indian Trace Development District.
(tt) "License Agreement" means the license agreement
described in SECTION 6.6 hereof.
(uu) "▇▇▇▇▇▇" means ▇▇▇ ▇▇▇▇▇▇ Enterprises, Inc.
(vv) "Member(s)" means a Person holding a Membership.
(ww) "Member Installment Obligations" means amounts owed
by Members paying their initiation fees on an installment basis offered by
the Club from time to time pursuant to the Membership Plan Documents.
(xx) "Membership" means the contract right pursuant to
the Membership Agreement of a person to use the Club Facilities in
accordance with the particular Member's category of Membership as described
in the Membership Plan Documents. Each category of Membership when
mentioned herein refers to such category of Membership as described in the
Membership Plan Documents. As an example and not in limitation of the
foregoing, the term "Weston Hills Golf Membership" refers to the Membership
denominated as such in the Membership Plan Documents.
(yy) "Membership Agreement(s)" means all agreements
executed by a Person entitling such Person to Membership, which agreements
are listed on SCHEDULE 7.2(k).
(zz) "Membership Plan Documents" means the Plan for the
Offering of Memberships in Weston Hills Country Club dated August 25, 1998
(together with the Membership Conditions/General Rules and Regulations and
the Non-Resident, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Hills and Corporate Membership
"Information Sheets"), a copy of which is attached hereto as EXHIBIT "B".
(aaa)"Memorandum of Agreement" means the Memorandum of
Agreement described in SECTION 6.7 hereof.
(bbb)"Objection" is defined in SECTION 3.2 hereof.
(ccc)"Objection Notice" is defined in SECTION 3.2
hereof.
(ddd)"Party" and "Parties" is defined in the
introductory paragraph hereof.
(eee)"PDD" means City of Weston Ordinance No. 2002-18,
the amended and restated Planned Unit Development District Zoning Ordinance
applicable to the Property.
(fff)"Permits and Licenses" means Sellers' interest in
(i) licenses, permits, franchises, certifications, authorizations,
approvals, certificates of occupancy, and entitlements issued, approved, or
granted by any Governmental Authority, (ii) development rights and
(iii) licenses, certifications, authorizations, approvals, easements, and
rights-of-way required from private parties to make use of utilities and to
ensure vehicular and pedestrian ingress and egress to the Real Property,
each only to the extent used in connection with the conduct of business at
the Club, including, but not limited to, the Water Permit and other
licenses and permits set forth on SCHEDULE 7.2(g) attached hereto.
(ggg)"Permitted Exceptions" means (i) liens for taxes
for 2002, (ii) all exceptions set forth in the Title Commitment that are
not identified in the Objection Notice (but including any exceptions
identified in the Objection Notice that are accepted (or deemed accepted
pursuant to SECTION 3.2) by Purchaser), (iii) the Memorandum of Agreement,
(iv) the License Agreement, (v) the Membership Plan Documents, (vi) the
Baxas Settlement Agreement, and (vii) the Restrictive Covenant.
(hhh)"Person" means a natural person, corporation,
partnership, trust or other entity, including a Governmental Authority.
(iii)"Property" means Real Property, Inventory, Tangible
Assets, Intangible Personal Property, and Member Installment Obligations,
but specifically excludes any cash and/or bank accounts of Sellers and
their Affiliates.
(jjj)"Purchase Price" is defined in SECTION 2.2 hereof.
(kkk)"Purchaser" is defined in the introductory
paragraph hereof.
(lll)"Purchaser Indemnified Claims" is defined in
SECTION 6.5.
(mmm)"Purchaser's Certificate" is defined in
SECTION 4.1(a).
(nnn)"Real Property" means the Land and Improvements,
together with (i) all and singular the benefits, rights, privileges,
easements (including all required access, cart path, irrigation drainage
and utility easements), tenements, hereditaments, and appurtenances,
(ii) all right, title, interest, and benefit of Sellers in and to adjacent
streets, roads, alleys, and sewer, public or private, open or closed,
(iii) any entitlements or governmental approvals, and (iv) all right,
title, interest, and benefit of Sellers and its Affiliates in and to water
rights, water permits, and ▇▇▇▇▇, if any, to the extent related to the Land
and Improvements.
(ooo)"Records" is defined in SECTION 5.2 hereof.
(ppp) "Saleable Inventory" means all saleable (excluding
all obsolete, worn or damaged merchandise) tennis and golf pro shop and
other merchandise (excluding any ▇▇▇▇▇▇ merchandise) held for sale in the
ordinary course of business of the Club.
(qqq)"Sellers" is defined in the introductory paragraph
hereof.
(rrr)"Sellers Indemnified Claims" is defined in
SECTION 6.5.
(sss)"Sellers' Certificate" is defined in
SECTION 4.2(a).
(ttt)"Sellers' Actual Knowledge" means the actual
present knowledge (without investigation or inquiry) of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇.
(uuu)"Supply Inventory" means all useable materials and
supplies used in the operation and maintenance of the Club.
(vvv)"Survey" means that certain ALTA survey of the Real
Property prepared by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & Associates, Inc. and dated
November 29, 1999 (last updated on June 10, 2002) as updated prior to the
Closing Date.
(www)"Tangible Assets" means all equipment, vehicles, if
any, furniture and other tangible personal property owned by Sellers and
its Affiliates (i) located on the Property and (ii) any located offsite
which is primarily used in the operation, maintenance, repair or ownership
of the Property (but excluding the network router connecting the Club's
system to the Arvida network and excluding all timeclocks), including the
equipment, furniture and other tangible personal property is listed (or, in
some cases, generally described) on SCHEDULE 7.2(i).
(xxx)"Title Insurance Commitment" means a title
insurance commitment issued by the Title Company agreeing to issue to
Purchaser an owner's policy of title insurance in the amount of the
Purchase Price allocated to the Real Property, as agreed to between
Purchaser and Sellers pursuant to SECTION 2.2(d) hereof.
(yyy)"Title Company" means A&D Title Company d/b/a Gold
Coast Title West, as agent for First American Title Insurance Company.
(zzz)"Title Policy" is defined in SECTION 4.2(f) hereof.
(aaaa) "Town Foundation" means the master
association for Arvida's Weston that currently provides architectural
control and covenant enforcement.
(bbbb) "UCC Searches" means a Uniform Commercial
Code search in the county and state in which the Property is located
(Broward County, Florida) and in the state of organization of the Sellers
(Delaware and Florida).
(cccc) "Warranties" means the transferable product
and service warranties and guaranties to the extent affecting or relating
to the ownership or operation of the Property, the Club or the Club
Facilities, which warranties and guaranties are listed (or, in some cases,
generally described) on SCHEDULE 7.2(p).
(dddd) "Water Permit" means that certain Water Use
Permit #06-01218-W.
(eeee) "Weston Hills" is defined in the introductory
paragraph hereof.
(ffff) "Weston Hills Community" means the
residential planned community adjacent to the Club Facilities and any
properties which may be annexed as a part thereof. Included within the
Weston Hills Community are areas that lie "inside the gates" for the
community as well as the other adjacent communities developed by Arvida and
its Affiliates, which lie "outside the gates" but are nonetheless, for
purposes of this Agreement, included within the meaning of the term "Weston
Hills Community." The Club and the Weston Hills Community lie within
Arvida's Weston.
2. PURCHASE AND SALE
2.1 SALE AND PURCHASE. On the Closing Date, Sellers will
sell, transfer, assign and convey to Purchaser all right, title and
interest in and to the Property, subject to the Permitted Exceptions, and
Purchaser will purchase and accept the transfer, assignment and conveyance
of the Property and will assume the Assumed Obligations.
2.2 PURCHASE PRICE.
(a) PURCHASE PRICE. The purchase price for the
Property is Twenty-Three Million Five Hundred Thousand and 00/100
($23,500,000.00) Dollars, plus the amount to be paid for the (i) Consumable
Inventory, and (ii) Saleable Inventory as described in SECTION 2.2(b)
below, as such amount may be increased or decreased for prorations and
adjustments provided for herein (collectively, the "Purchase Price").
(b) INVENTORY. All Saleable Inventory and Consumable
Inventory will be purchased by Purchaser for an amount equal to the actual
cost paid by Sellers (as reflected by invoice less any rebate), including
shipping. Inventory will not exceed amounts maintained at historic
seasonal levels. The cost of the Supply Inventory shall not be added to
the Purchase Price and shall be conveyed to Purchaser at Closing.
(c) MEMBER INSTALLMENT OBLIGATIONS AND NEW MEMBER
INITIATION FEES OR DEPOSITS. The Member Installment Obligations due and
payable after Closing are a part of the Property and are included in the
Purchase Price. The Member Installment Obligations and new Member
initiation fees or deposits due and payable after Closing and actually
received by Sellers after the Closing Date will be for the account of the
Purchaser. The Member Installment Obligations and Membership initiation
fees (including installment payments) and deposits due and payable prior to
Closing will be the property of the Sellers. The Member Installment
Obligations and Membership initiation fees (including installment payments)
and deposits due and payable prior to Closing and actually received by
Purchaser after the Closing Date will be for the account of Sellers.
Sellers make no warranties with respect to collectibility of the Member
Installment Obligations.
(d) ALLOCATION OF PURCHASE PRICE. Purchaser and
Sellers have agreed to the allocation of the Purchase Price among the
assets being purchased under this Agreement as set forth in
SCHEDULE 2.2(d). The allocation will be binding upon the Parties for
purposes of: (i) determination of any sales tax, documentary or transfer
tax liabilities in connection with the Closing, (ii) Purchaser's and
Sellers' filing of Internal Revenue Service Form 8594 allocating the
Purchase Price for income tax purposes, and (iii) all other purposes
related to this transaction.
2.3 TIME FOR ACCEPTANCE. Until executed by both Purchaser
and Sellers this Agreement will be deemed an offer to purchase and sell the
Property in accordance with the terms and provisions herein contained. If
this Agreement is not executed by Sellers on or before three (3) days after
execution by Purchaser, Purchaser will have the right to withdraw its
offer, in which event, the Deposit will be returned to Purchaser.
2.4 PAYMENT OF THE PURCHASE PRICE. The Purchase Price will
be paid as follows:
(a) On or before the Effective Date, Purchaser will
deliver to Sellers independent consideration in an amount equal to One
Hundred Dollars ($100), which sum (i) is consideration for the execution
and delivery of this Agreement by Sellers, (ii) is non-refundable and
(iii) will be retained by Sellers notwithstanding any other provision of
this Agreement.
(b) Purchaser has delivered to Escrow Agent a deposit
in an amount equal to One Hundred Thousand Dollars ($100,000) (the "Initial
Deposit"). In the event that Purchaser has not terminated this Agreement
pursuant to SECTION 5 hereof, Purchaser will deliver to Escrow Agent, on or
before the 2nd Business Day after the Effective Date, an additional Two
Hundred Thousand Dollars ($200,000) (the "Additional Deposit," and the
Initial Deposit and the Additional Deposit, together with the interest
earned, shall be collectively referred to as the "Deposits"). The Deposits
will be held by Escrow Agent in an interest bearing account at a FDIC
insured institution or in U.S. government obligations with maturities that
do not extend beyond the Closing Date.
(c) Interest on the Deposits will accrue for the
benefit of Purchaser. Unless previously paid to Sellers or Purchaser
pursuant to the terms hereunder, at Closing the Deposits will be credited
to Purchaser, applied toward the Purchase Price, and paid to Sellers. The
federal tax identification number of Purchaser is ________________________.
(d) The balance of the Purchase Price, subject to
prorations and adjustments as provided herein, will be delivered at the
Closing by bank wire transfer as designated by Sellers.
3. TITLE, SURVEY AND UCC SEARCHES
3.1 ACKNOWLEDGEMENT OF RECEIPT. Purchaser acknowledges that
it has received from Sellers: (i) the Survey, (ii) the Title Insurance
Commitment (together with copies of all documents shown as exceptions in
the Title Insurance Commitment) and (iii) the UCC Searches. If requested
by Purchaser, the Title Company will provide a Simultaneous Issue Mortgagee
Commitment and Policy, a Florida Form 9 Endorsement and a Survey
Endorsement at Purchaser's expense.
3.2 OBJECTIONS. Prior to the Effective Date, Purchaser has
delivered to Seller a letter dated August 14, 2002 from R. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇., Esq. to ▇▇▇▇▇ ▇▇▇▇▇▇, Esq. and a letter dated August 19, 2002 from R.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., Esq. to ▇▇▇▇ ▇▇▇▇▇, Esq. (together, the "Objection
Notices") of certain defects in the Survey, Title Insurance Commitment, UCC
Searches and other objections to the Property or the Club (the
"Objection(s)"). Sellers, at their sole option, may elect to attempt to
cure or refuse to cure any of the Objection(s) identified in the Objection
Notices, and will deliver written notice ("Sellers' Election Notice") of
their election or refusal to Purchaser within five (5) Business Days after
the Effective Date. If Sellers (i) elect not to attempt to cure any of
such Objection(s), (ii) fail to elect to cure any of such Objection(s)
within five (5) Business Days after Sellers' receipt of the Objection
Notice, or (iii) elect to attempt to cure but are unable to do so to
Purchaser's reasonable satisfaction prior to the Closing Date, Purchaser,
at its sole option, may, either (i) elect to terminate this Agreement
within the earlier of (a) three (3) Business Days after Purchaser's receipt
of Sellers' Election Notice or (b) the Closing Date (in the case that
Sellers elect to cure but are unable to do so to Purchaser's reasonable
satisfaction prior to the Closing Date), or (ii) proceed to Closing,
without reduction in the Purchase Price, in which latter event any and all
Objection(s) will be Permitted Exceptions and the Purchaser will be deemed
to have accepted the Property and waived any right it may have to terminate
this Agreement on such basis.
4. CONDITIONS PRECEDENT.
4.1 CONDITIONS TO SELLERS' OBLIGATION TO CLOSE. The
obligation of Sellers to close and make the deliveries set forth in
SECTION 10 hereof is subject to the satisfaction of the following
conditions at or prior to the Closing, any or all of which may be waived by
Sellers in writing:
(a) All representations and warranties of Purchaser in
this Agreement will be true and correct in all material respects on and as
of the Closing Date with the same force and effect as if such
representations and warranties had been made on the Closing Date. At
Closing, Purchaser shall certify to Sellers that all such representations
and warranties are true and correct in all material respects on and as of
the Closing Date or disclose any matters that cause such representations
and warranties to be materially incorrect as of the Closing Date (the
"Purchaser's Certificate"); and
(b) Purchaser will have performed and observed, in all
material respects, all covenants and agreements set forth in this Agreement
to be performed or observed by Purchaser prior to or on the Closing Date
and will be prepared to close in accordance with the terms of this
Agreement.
In the event that any of the above conditions are not satisfied or
waived in writing by Sellers prior to Closing, Sellers may terminate this
Agreement by delivery of a written termination notice to Purchaser, in
which event, the Deposits will be retained by Sellers, and neither party
thereafter will have any further rights or obligations to each other under
this Agreement (except for any liability that expressly survives the
termination of this Agreement).
4.2 CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE. The
obligation of Purchaser to close and make the deliveries set forth in
SECTION 10 is subject to the satisfaction of the following conditions at or
prior to the Closing, any or all of which may be waived by Purchaser in
writing:
(a) All representations and warranties of Sellers in
this Agreement will be true and correct in all material respects on and as
of the Closing Date with the same force and effect as if such
representations and warranties had been made on and as of the Closing Date.
At Closing, Sellers shall certify to Purchaser that all such
representations and warranties are true and correct in all material
respects on the Closing Date or disclose any matters that cause such
representations and warranties to be materially incorrect as of the Closing
Date (the "Sellers' Certificate");
(b) Sellers will have performed and observed, in all
material respects, all covenants and agreements set forth in this Agreement
to be performed or observed by Sellers prior to or on the Closing Date and
will be prepared to close in accordance with the terms of this Agreement;
(c) The Records will have been true and correct in all
material respects on the date such Records were made available to Purchaser
for review;
(d) There will not have occurred any material and
adverse change in the matters reflected on the Records, Title Commitment,
Survey or UCC Searches from those matters appearing therein on the
Effective Date (except those changes permitted under this Agreement or
requested by Purchaser in its Objection Notice). The term "material and
adverse" as used in this ARTICLE 4 shall mean any event, condition, change
or circumstance that has an adverse impact or restriction on the ownership
or operation of the Property in an amount in excess of $50,000 on a
cumulative basis or materially restricts the operation of the Property;
(e) There will not have occurred any material and
adverse change in the environmental condition of the Property from that
which existed on the Effective Date;
(f) The Title Company will have provided Purchaser with
written evidence that it is prepared to issue an Owner's Policy of Title
Insurance (the "Title Policy") on the standard form in use in the State of
Florida with the endorsements requested by Purchaser, insuring good and
indefeasible fee simple title to the Real Property (including all required
access, cart path, irrigation drainage and utility easements) in the
Purchaser in a face amount equal to the Purchase Price (as allocated
pursuant to SECTION 2.2(d)) and containing no exceptions except the
Permitted Exceptions and the standard printed exceptions therein, as
modified by any Objections which Sellers elect to cure pursuant to
SECTION 3.2.
(g) Neither Sellers nor Purchaser will have received
any written notice from any Governmental Authority of any pending or
contemplated material impairment of access to any portion of the Property
or any material violation of any Legal Requirement concerning the Property,
which, in both cases, did not exist on the Effective Date;
(h) There will not have occurred any material and
adverse change in the access to or availability of utilities (including,
but not limited to, sewer, water, gas, electricity, and telephone
facilities) from that which existed on the Effective Date;
(i) The Water Permit will not have been revoked,
terminated or amended and all consents required to assign the Water Permit
to Purchaser at Closing, or obtain a new Water Permit for Purchaser by
Closing, will have been obtained; and
(j) Purchaser will have obtained, on or before
September 15th, 2002, a commitment from an insurance company, financial
institution or lender or other arrangement to finance the purchase of the
Property on commercially reasonable terms; provided, however, Purchaser
agrees to use commercially reasonable efforts to obtain such commitment or
arrangement, including making application therefore as soon as practicable
after the Effective Date and notifying Sellers in writing promptly upon
Purchaser's receipt of such commitment or other arrangement.
(k) The satisfaction of the additional items set forth
on SCHEDULE 4.2(k) by Closing and obtaining the Required Consents set forth
in SCHEDULE 8.9.
In the event that any of the above conditions are not satisfied or
waived in writing by Purchaser prior to Closing, Purchaser may terminate
this Agreement by delivery of a written termination notice to Sellers, in
which event, the Deposits shall be returned to Purchaser, and neither party
thereafter shall have any further rights or obligations to each other under
this Agreement (except for any liability that expressly survives the
termination of this Agreement).
5. DUE DILIGENCE
5.1 DUE DILIGENCE PERIOD. During the Due Diligence Period,
Purchaser undertook such physical inspections and other investigations of,
and inquiries concerning, the Property as were deemed by Purchaser to be
reasonably necessary to evaluate, and determine the feasibility and
advisability of purchasing, the Property. In the event the Closing does
not occur, Purchaser will provide Sellers with copies of any and all third
party reports (that are not privileged pursuant to applicable law or for
which Purchaser, despite its commercially reasonable efforts to negotiate
otherwise, is contractually prohibited from sharing) produced in connection
with Purchaser's inspections. Purchaser's right to contact, meet with or
interview Members, Sellers' employees and Governmental Authorities to
inquire about and investigate matters relating to the Property are set
forth in SECTION 6.13 hereof.
5.1.1 ADDITIONAL MEMBER REVIEW PERIOD. Sellers and Purchaser
acknowledge that (i) the Purchaser shall have a ten (10) Business Day
period after the expiration of the Effective Date (the "Member Review
Period") to interview the Members as provided in SECTION 6.13, and (ii) if
the information received from the Members or the result of the interviews
with the Members is not acceptable to Purchaser, in Purchaser's sole and
absolute discretion, Purchaser shall have the right to terminate this
Agreement and receive a refund of the Deposits upon written notice to
Sellers prior to the expiration of the Member Review Period.
5.2 RECORDS. Until Closing, Sellers will provide Purchaser
access to all documentation, including, the Contracts, the Permits and
Licenses, the Warranties, the Membership Plan Documents, the Membership
Agreements, title policies, financial statements, budgets, appraisals,
surveys and plans regarding the Property in the possession of Sellers
(collectively, the "Records"); provided, however, except as set forth in
the representations contained in SECTION 7.2 hereof, Purchaser acknowledges
that Sellers have not represented or warranted that the Records include all
documentation and/or information that may exist concerning the Property and
agrees that it is Purchaser's obligation to make its own investigations and
discoveries during the Due Diligence Period. Purchaser will be permitted
to copy, at Purchaser's sole cost and expense, items identified by
Purchaser during the Due Diligence Period. If the Closing does not occur,
any documents copied or otherwise obtained by Purchaser from Sellers will
be returned to Sellers and all information obtained by Purchaser from
Sellers will be kept confidential pursuant to the terms of this Agreement
and the Confidentiality Agreement.
5.3 NORMAL BUSINESS HOURS. All Records and all inspections,
investigations and/or inquiries made by Purchaser under this Agreement will
be made and/or conducted during normal business hours or as otherwise
agreed to by the Parties.
5.4 OBLIGATIONS OF PURCHASER. Purchaser will correct any
material physical damage to the Property caused by Purchaser, its
Affiliates, agents, employees, invitees and/or assigns and will return to
Seller any Records in Purchaser's possession. Purchaser will indemnify and
hold Sellers harmless from and against any and all loss or damage relating
to or arising out of Purchaser's exercise of its due diligence rights
hereunder. This provision will survive the termination of this Agreement.
5.5 POST EFFECTIVE DATE ACCESS TO PROPERTY. Purchaser
acknowledges and agrees that the time granted by Seller to Purchaser for
any and all due diligence in connection with the Property, including
analysis of financial data, review of the Title Commitment and Permitted
Exceptions, performance of environmental and other testing and
investigation expired upon the Effective Date and Purchaser will have no
right to object to any matters relating thereto after such date except as
set forth in the Objection Notice, or expressly permitted in this Agreement
(including Section 5.1.1 hereof), time being of the essence with respect
thereto. Notwithstanding the above, Purchaser will have continued access
to the Property, the Records, and Employees to prepare for Closing from the
Effective Date to the Closing Date, subject to the terms and conditions
recited herein; provided that, Purchaser will provide Sellers with
reasonable advance written notice prior to conducting any investigations on
the Real Property, and Sellers will have the right to have a representative
present at all such investigations. This continued access by Purchaser to
the Property after the Effective Date shall not grant any additional right
to terminate this Agreement; provided, however, that any right to terminate
as a result of a Seller default, or any other right to terminate this
Agreement after the Effective Date which is specifically set forth in this
Agreement, shall continue. After the Effective Date, the only conditions
to Purchaser's obligation to close the purchase of the Property will be as
provided in SECTION 4.2 of this Agreement.
5.6 LIMITED WARRANTIES. PURCHASER REPRESENTS AND WARRANTS
THAT IT IS A SOPHISTICATED INVESTOR WITH SUBSTANTIAL EXPERIENCE IN THE
ACQUISITION OF REAL ESTATE AND THE CONDUCT OF DUE DILIGENCE RELATED TO SUCH
ACQUISITION. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS OTHERWISE
EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE CLOSING DOCUMENTS
(INCLUDING THE EXHIBITS, FORMS AND SCHEDULES ATTACHED HERETO), NEITHER
SELLERS NOR ANY EMPLOYEE, AGENT OR REPRESENTATIVE OF SELLERS HAS MADE, AND
SELLERS ARE NOT LIABLE OR RESPONSIBLE FOR OR BOUND IN ANY MANNER BY, ANY
EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS,
OBLIGATIONS, GUARANTEES, STATEMENTS, INFORMATION OR INDUCEMENTS PERTAINING
TO THE PROPERTY OR ANY PART THEREOF; TITLE TO THE PROPERTY; THE PHYSICAL
CONDITION OF THE PROPERTY; THE HABITABILITY, SUITABILITY, OR
MERCHANTABILITY OF THE PROPERTY OR FITNESS OF THE PROPERTY FOR A PARTICULAR
USE OR PURPOSE; THE ENVIRONMENTAL OR GEOLOGICAL CONDITION OF THE REAL
PROPERTY; THE SOIL CONDITIONS, DRAINAGE OR TOPOGRAPHICAL FEATURES OF THE
LAND; THE FITNESS AND QUALITY OF THE PROPERTY; THE QUALITY OR QUANTITY OF
ANY ITEMS OF TANGIBLE ASSETS; THE INCOME, EXPENSES OR OPERATION OF THE
PROPERTY AND THE VALUE AND PROFITABILITY OF THE PROPERTY; THE USES TO WHICH
THE PROPERTY CAN BE PUT; COMPLIANCE OF THE PROPERTY WITH THE LAWS OF ANY
GOVERNMENTAL AUTHORITY; CURRENT AND FUTURE ZONING; THE SUITABILITY OF THE
PROPERTY OR ANY PORTION THEREOF FOR RENOVATION OR CONSTRUCTION; THE LEGAL
STATUS, OBLIGATIONS, LIABILITIES OR RIGHTS OF SELLERS WITH RESPECT TO THE
CLUB; OR ANY OTHER MATTER OR THING WHATSOEVER WITH RESPECT TO THE PROPERTY.
PURCHASER ACKNOWLEDGES, AGREES, REPRESENTS AND WARRANTS THAT IT HAS HAD
ACCESS TO THE PROPERTY AND TO INFORMATION AND DATA RELATING TO THE PROPERTY
AS PURCHASER HAS CONSIDERED NECESSARY, PRUDENT, APPROPRIATE OR DESIRABLE
FOR THE PURPOSES OF THIS TRANSACTION AND, EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH IN THIS AGREEMENT AND IN THE CLOSING DOCUMENTS, THAT PURCHASER AND
ITS EMPLOYEES, AGENTS AND REPRESENTATIVES INDEPENDENTLY HAVE INSPECTED,
EXAMINED, INVESTIGATED, ANALYZED AND APPRAISED ALL OF THE SAME AND ALL
OTHER MATTERS IT HAS DETERMINED ARE CONDITIONS TO PURCHASING THE PROPERTY,
AND THAT IT IS ACQUIRING THE PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS."
WITHOUT LIMITING THE FOREGOING, PURCHASER ACKNOWLEDGES AND AGREES THAT, IN
ENTERING INTO THIS AGREEMENT, PURCHASER HAS NOT BEEN INDUCED BY AND HAS NOT
RELIED UPON ANY REPRESENTATIONS OR STATEMENTS, WHETHER EXPRESSED OR
IMPLIED, WRITTEN OR VERBAL, MADE BY SELLERS OR ANY AGENT, EMPLOYEE OR OTHER
REPRESENTATIVE OF SELLERS, OR ANY OTHER PERSON, WHICH ARE NOT EXPRESSLY SET
FORTH IN THIS AGREEMENT, WHETHER OR NOT SUCH REPRESENTATIONS OR STATEMENTS
WERE MADE ORALLY OR ELSEWHERE IN WRITING. WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT AND IN THE CLOSING DOCUMENTS, NEITHER SELLERS NOR ANY OTHER
PERSON IS UNDER ANY OBLIGATION TO DISCLOSE TO PURCHASER, NOR WILL THEY BE
LIABLE FOR ANY FAILURE TO DISCLOSE TO PURCHASER, ANY INFORMATION KNOWN TO
THEM REGARDING THE PROPERTY. THIS SECTION 5.6 WILL SURVIVE CLOSING OR
TERMINATION OF THIS AGREEMENT.
6. FURTHER AGREEMENTS
6.1 ARVIDA GOLF MEMBERSHIPS. Arvida will have the continuing
right to designate, as provided below, up to fifteen (15) Persons ("Arvida
Golf Designee(s)") for perpetual Weston Hills golf memberships ("Arvida
Golf Memberships") in the Club. Arvida Golf Designees will not be required
to pay initiation fees or dues, but will be required to pay all other
normal and customary use fees or cart fees and guest fees paid by other
Members with Membership and abide by all Club bylaws, rules and
regulations. Arvida Golf Designees will not, however, be subject to any
food and beverage minimums. Except as otherwise provided in this SECTION
6.1, Arvida Golf Designees and their families and "Significant Others" (as
such term is defined in the Membership Plan Documents) will have use rights
equal to the use rights of existing Weston Hills Golf Members. Arvida will
designate at Closing, and may thereafter on an annual basis on or before
January 15 of each calendar year modify, in a written notice to the Club's
manager, a list of the names of the Arvida Golf Designees (the "Designee
Notification"). The names of the Arvida Golf Designees may not otherwise
be changed or redesignated by Arvida during the Calendar Year. Each of the
Arvida Golf Designees will have full charge privileges at all Club
Facilities, which will be an individual account billed by the Club to such
Arvida Golf Designee. Sellers are not, and will not be, a guarantor of any
such charges. Purchaser will have the right to suspend or terminate the
use rights of any Arvida Golf Designee for nonpayment or other violation of
the Membership Plan Documents on the same terms as generally applied by the
Club; provided, however, prior to any suspension or termination for
nonpayment, Purchaser will give Arvida written notice and a detailed
explanation of such nonpayment no later than thirty (30) days following the
occurrence thereof. Arvida will have the right, but not the obligation, to
cure such nonpayment. If Purchaser suspends or terminates an Arvida Golf
Designee for the violation of the Membership Plan Documents or Arvida cures
any nonpayment identified in Purchaser's written notice, Arvida may, in its
sole discretion, elect to replace the defaulting Arvida Golf Designee with
another Arvida Golf Designee. Arvida's right to designate Arvida Golf
Designees and the use and other rights of such Arvida Golf Designees will
be set forth in the Memorandum of Agreement.
6.2 WESTON HILLS MEMBERSHIPS. For a period of one year after
the Effective Date, Purchaser will reserve sufficient Weston Hills Social
Memberships so as to ensure the immediate availability of a Weston Hills
Social Membership (at the lot or dwelling unit buyer's option) for ten (10)
retail buyers (from Arvida or its Affiliates) of lots or dwelling units in
Arvida's Weston. The reservation of a Weston Hills Social Membership for
any such buyer may be withdrawn ninety (90) days after such buyer closes on
the purchase of a lot or unit purchased from Arvida. Memberships will be
made available to such buyers upon request of such buyers without the
necessity for such buyers to remain on any waiting list, and their
memberships will be subject to the payment of the dues (except for the
first year of the term, as set forth below), fees and other charges
applicable to Social Members generally; provided, however, the initiation
fee and dues for the first year of the term of such Social Membership shall
be payable at the rate of $1,020.00.
6.3 DEVELOPMENT APPROVAL AND ZONING CHANGES. At no time
prior to the Completion Date will Purchaser take any action that modifies
or violates the terms of the DRI, the PUD or any other building permit,
zoning permit, subdivision approval, rezoning, certification, special
exception, variance or other official governmental action pertaining to the
development of any land owned by Arvida or its Affiliates, nor will
Purchaser oppose or protest any modification to any of the foregoing that
may be proposed or supported by Arvida concerning any land owned by Arvida
or its Affiliates, provided that the proposed modification has no material
adverse effect or imposes any material restriction on the Property,
including the use or value thereof, the Membership Plan or Purchaser's
ability to operate the Property substantially as it is currently being
operated.
6.4 USE RESTRICTION. Purchaser agrees to maintain, in
perpetuity, two (2) 18-hole golf courses on the Real Property, subject to
any temporary closures due to Force Majeure, renovations, repairs or
maintenance. This use restriction will be included in the Deed to be
recorded at Closing, and will inure to the benefit of and be enforceable
only by Arvida, and its successors and assigns.
6.5 INDEMNIFICATION/LIABILITIES. Sellers covenant and agree
that Sellers will jointly and severally indemnify and hold Purchaser
harmless from all liability, loss, damage, cost or expense, including all
reasonable legal fees and costs, arising out of any third party claim or
cause of action occurring or accruing prior to the Closing in connection
with Sellers' ownership or operation of the Club (the "Sellers Indemnified
Claims"). Purchaser covenants and agrees to indemnify and hold Sellers
harmless from all liability, loss, damage, cost or expense, including all
reasonable legal fees and costs, arising out of any third party claim or
cause of action occurring or accruing (i) after the Closing in connection
with Purchaser's ownership or operation of the Club and/or (ii) prior to
Closing as a result of Purchaser's exercise of its inspection rights
pursuant to SECTION 5.1 hereunder (the "Purchaser Indemnified Claims," and
together with the Sellers Indemnified Claims, the "Indemnified Claims").
If a third party asserts a claim for an Indemnified Claim, the indemnified
party shall promptly (but in no event later than ten (10) days after
receipt of the Indemnified Claim) give written notice to the indemnifying
party of such claim. The indemnifying party shall have the right, at its
or their election, to take over the defense or settlement of such
Indemnified Claim by giving prompt written notice to the indemnified party
(but in no event later than five (5) Business Days prior to the time when
an answer or other responsive pleading or notice with respect thereto is
required). If the indemnifying party makes such election, it or they may
conduct the defense of such claim through counsel or representative of its
or their choosing, shall be responsible for the expenses of such defense,
and shall be bound by the results of its or their defense or settlement of
such Indemnified Claim to the extent it produces damage or loss to the
indemnified party. The indemnified party agrees to cooperate in the
defense of such Indemnified Claims and will grant the indemnifying party
access to records, information and personnel which are pertinent to such
defense. So long as the indemnifying party is or are diligently contesting
any such claim in good faith, the indemnified party may pay or settle such
claim only at its or their own expense. If the indemnifying party does not
make the election to defend the indemnified party, then the indemnified
party may, upon five (5) days' written notice to the indemnifying party,
and at the expense of the indemnified party, take over the defense of and
proceed to handle such claim and the indemnifying party shall be bound by
any defense or settlement that the indemnified party may make in good faith
with respect to such Indemnified Claim. It is expressly agreed and
recognized that Purchaser, in acquiring the Property, does not assume any
responsibility or liability whatsoever for any Sellers Indemnified Claim,
regardless of whether fixed, accrued, or contingent. It is further
expressly agreed and recognized that Sellers, in disposing of the Property,
do not assume any responsibility or liability whatsoever for any Purchaser
Indemnified Claims, regardless of whether fixed, accrued, or contingent.
6.6 USE OF THE NAME "WESTON HILLS COUNTRY CLUB". At Closing,
Arvida will quitclaim, or cause to be quitclaimed, and/or assign without
warranty or representation to Purchaser all of Arvida's right, title and
interest in and to the name "Weston Hills Country Club" (including, without
limitation, any tradename, logo or servicemark relating thereto) and
Purchaser will grant to Arvida a nonexclusive, perpetual, royalty-free
license (the "License Agreement") to use the name Weston Hills Country Club
in advertising and promoting the Weston Hills Community and Arvida's
Weston, through the Completion Date and thereafter in promotional and
informational literature and materials concerning Arvida and other
communities developed or to be developed by Arvida or its Affiliates. The
form of License Agreement is attached hereto as FORM A.
6.7 MEMORANDUM OF AGREEMENT. The covenants and agreements
referenced in SECTIONS 6.1, 6.2, 6.3, 6.4 and 6.6, inclusive, will be
covenants running with the Land, and will be memorialized into and included
in the Memorandum of Agreement which will be executed by Sellers and
Purchaser at Closing and recorded in the Public Records of Broward County,
Florida, at the time of recording of the deed conveying the Real Property
to the Purchaser. The form of Memorandum of Agreement is attached hereto
as FORM B. The Memorandum of Agreement shall terminate as to each Section
recited above pursuant to the terms recited therein.
6.8 CONFIDENTIALITY. A confidentiality agreement dated April
19, 2002, has already been executed by Purchaser (the "Confidentiality
Agreement"). The Confidentiality Agreement will remain in full force and
effect and will apply, except as amended and modified as provided herein,
to this Agreement and all of the documents and matters mentioned herein
through the Closing Date.
6.9 PERMITS AND LICENSES. At Closing, Sellers will assign
the Permits and Licenses to Purchaser to the extent permitted by law and/or
the terms and provisions thereof. At Closing, Purchaser will assume and
agree to be bound by and perform all obligations arising after Closing
under all such Permits and Licenses assigned to Purchaser or to which
Purchaser has been added as aforesaid. Sellers agree to operate, manage
and maintain the Property, the Club and the Club Facilities in accordance
with the provisions, requirements and restrictions set forth in the
aforementioned Permits and Licenses until Closing. In connection
therewith, Purchaser specifically acknowledges and agrees that the only
transferable liquor license is License #BEV1614079 Series 2COP issued for
Mulligans to serve beer and wine only. Liquor License #BEV1607852 Series
11C and 11CX(2), and tobacco License #TOB114860 and the additional licenses
and permits listed in SCHEDULE 6.9 (the "Excluded Permits") are not
transferable. Sellers agree to cooperate, prior to Closing and at no cost
or liability to Sellers, with Purchaser in Purchaser obtaining any new
licenses and permits for the use and operation of the Club.
6.10 ASSUMED OBLIGATIONS. At Closing, Sellers will assign to
Purchaser, without recourse, Sellers' rights, and Purchaser will assume
Sellers' obligations, arising and accruing for the period after the
Closing, under (i) the Contracts, (ii) the Additional Contracts, (iii) the
Permits and Licenses, (iv) the Warranties, (v) the Permitted Exceptions,
and (vi) tournament, banquet and special events to occur after Closing as
described on SCHEDULE 6.10, excluding the obligation to pay refunds, if
any, to Members who resign prior to the Closing Date, which shall remain
the responsibility of Sellers (collectively, the "Assumed Obligations").
Purchaser will reasonably cooperate with Sellers to obtain the release of
Sellers from post-closing liability and rights under any of the Assumed
Obligations, if requested by Sellers and provided such cooperation is at no
expense to Purchaser. In the event that the obligee under any Assumed
Obligation requires any payment in order to procure such release, such
payment will be the obligation of Sellers. This provision 6.10 shall
survive the Closing.
6.11 CONDUCT OF BUSINESS. Between the Effective Date and the
Closing, Sellers will manage, operate and maintain the Property, Club and
existing Club Facilities in substantially the same manner as each was being
managed, operated and maintained as of the Effective Date (and, in
particular, but not by way of limitation, Sellers will not modify the
existing membership program, Membership Plan Documents, Membership
Agreements or implement a new membership program without the prior written
consent of Purchaser in Purchaser's sole and absolute discretion).
6.12 EMPLOYEES. At the time of Closing, Sellers will
terminate the employment of all of the employees who are on the Club's
payroll. Purchaser shall offer "at-will" employment to at least ninety
percent (90%) of the employees, and will offer such employees the health
insurance and other benefits available to other employees of Purchaser, or
Purchaser's Affiliates, in accordance with the standard benefit programs
and policies of Purchaser, or Purchaser's Affiliate, as applicable.
Sellers will pay to all of Sellers' former employees all amounts owed to
them by Sellers and attributable to their employment or payable by Sellers
in connection with their employment through the Closing Date, including
salary, and Available Vacation and Sick Pay. Sellers acknowledge that
Purchaser is assuming no obligation or liability of Sellers of any nature
concerning Sellers' employees and is acquiring only the Property.
6.13 CONTACT, MEETINGS AND INTERVIEWS. Purchaser and
Purchaser's representatives will have the right to contact, meet with or
interview Members, Sellers' employees and Governmental Authorities to
inquire about and investigate matters relating to the Property; provided,
however, Purchaser agrees (i) to give Sellers reasonable advance written
notice of the identity of the Member, employee or Governmental Authority to
be contacted, met with or interviewed and the time, place, agenda and
circumstances of such contact, meeting or interview, (ii) Sellers will have
the right to have a representative present during such contact, meeting or
interview, and (iii) Sellers will have the right to approve, which approval
will not be unreasonably withheld: (a) in the case of Members, the number
to be interviewed and the time, place, agenda, subject matter and
circumstances of each such proposed contact, meeting or interview and (b)
in the case of employees and Governmental Authorities, the time, place,
agenda and circumstances of each such proposed contact, meeting or
interview.
6.14 INTENTIONALLY DELETED.
7. REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
represents and warrants to Sellers as of the Effective Date that:
(a) EXISTENCE AND GOOD STANDING. Purchaser is a
limited partnership duly organized, validly existing and in good standing
under the laws of the State of Texas and has, or will have as of Closing,
full power and authority to own its property, to carry on its business as
now being conducted and to engage in the transactions contemplated hereby.
Purchaser has made all filings required to be made by it under the laws of
each jurisdiction where the character or location of the properties owned
or leased by it, or the nature of the business conducted by it, requires
any filings, except for filings in jurisdictions where the failure to make
such filings would not, individually or in the aggregate, have a material
adverse effect on Purchaser or Seller.
(b) AUTHORITY AND ENFORCEABILITY. Purchaser has full
power and authority to execute, deliver and perform this Agreement and has
validly executed and delivered this Agreement. This Agreement constitutes
the legal, valid and binding agreement of Purchaser enforceable in
accordance with its terms, except as such enforcement may be limited by
general principles of equity or by bankruptcy, insolvency or other similar
laws affecting creditors' rights generally.
(c) NO VIOLATION. The execution, delivery and
performance by Purchaser of this Agreement and of the documents and
instruments contemplated hereby to be executed, delivered and performed by
it will not (i) constitute a violation of, or be in conflict with, or
result in a breach of, or constitute a default under, or create (or cause
the acceleration of the maturity of) any debt, obligation or liability
pursuant to the articles of formation of Purchaser or any agreement or
commitment to which Purchaser is a party or by which Purchaser is bound or
(ii) contravene in any material respect any provision of any law, statute,
rule or regulation or any judgment, decree, order or award by which
Purchaser is bound or to which Purchaser or any of Purchaser's assets are
subject.
(d) LITIGATION. There is no action, suit, proceeding
at law or in equity, arbitration, investigation, administrative proceeding
or other proceeding pending or threatened, or any judgment, order decree or
award, against or affecting Purchaser or Purchaser's assets which could
materially and adversely affect the right or ability of the Purchaser to
consummate the transactions contemplated hereby, and there is no valid
basis upon which any such action, suit, arbitration, investigation or
proceeding may be commenced or asserted against Purchaser.
(e) COMPLIANCE WITH LAWS. Purchaser is in compliance
with all laws, regulations, orders, judgments, awards and decrees the non-
compliance with which could materially and adversely affect the right or
ability of Purchaser to consummate the transactions contemplated hereby.
(f) CONSENTS. No consent, authorization of, or filing
with any governmental authority, whether federal, state or local, is
required in connection with the execution, delivery and performance of this
Agreement by Purchaser.
(g) INSOLVENCY. Purchaser and its Affiliates are able
to pay their respective debts and obligations as they mature in the usual
course of business. No payment made or procured by Purchaser to Sellers in
accordance with this Agreement will constitute a voidable preference or
transfer in fraud of any creditor of the Purchaser or any transferor under
any applicable federal or state insolvency law.
(h) ASSIGNMENTS. Purchaser has not (i) made a general
assignment for the benefit of creditors, (ii) filed any voluntary petition
in bankruptcy or suffered the filing of an involuntary petition by
creditors, (iii) suffered the appointment of a receiver to take possession
of all or substantially all of such Purchaser's assets, (iv) suffered the
attachment or other judicial seizure of all, or substantially all, of
Purchaser's assets, (v) admitted in writing their inability to pay their
debts as they come due, or (vi) made an offer of settlement, extension or
composition to their creditors generally.
7.2 REPRESENTATIONS AND WARRANTIES OF SELLERS. Sellers
represent and warrant to the Purchaser as of the Effective Date that:
(a) EXISTENCE AND GOOD STANDING. Weston Hills is a
limited partnership duly organized, validly existing and in good standing
under the laws of the State of Delaware. Arvida is a general partnership
duly organized, validly existing and in good standing under the laws of the
State of Florida. Sellers have full power and authority to own their
respective properties, to carry on their respective businesses as now being
conducted and to engage in the transactions contemplated hereby. Sellers
have made all filings required to be made by them under the laws of each
jurisdiction where the character or location of the properties owned or
leased by them, or the nature of the business conducted by them, requires
any filings, except for filings in jurisdictions where the failure to make
such filings would not, individually or in the aggregate, have a material
adverse effect on Purchaser or Sellers.
(b) AUTHORITY AND ENFORCEABILITY. Sellers have full
power and authority to execute, deliver and perform this Agreement and have
validly executed and delivered this Agreement. This Agreement constitutes
the legal, valid and binding agreement of Sellers enforceable in accordance
with its terms, except as such enforcement may be limited by general
principles of equity or by bankruptcy, insolvency or other similar laws
affecting creditors' rights generally.
(c) NO VIOLATION. The execution, delivery and
performance by Sellers of this Agreement and of the documents and
instruments contemplated hereby to be executed, delivered and performed by
them will not (i) constitute a violation of, or be in conflict with, or
result in a breach of, or constitute a default under, or create (or cause
the acceleration of the maturity of) any debt, obligation or liability
pursuant to the articles of formation of Sellers or any agreement or
commitment to which Sellers are a party or by which Sellers are bound or
(ii) contravene in any material respect any provision of any law, statute,
rule or regulation or any judgment, decree, order or award by which Sellers
are bound or to which Sellers or any of Sellers' assets are subject.
(d) LITIGATION. Except as set forth on SCHEDULE 7.2(d)
("Existing Litigation"), there is no action, suit, proceeding at law or in
equity, arbitration, investigation, administrative proceeding or other
proceeding pending or threatened, or any judgment, order decree or award,
against or affecting the Property, Sellers or Sellers' assets that could
(i) materially and adversely affect the right or ability of the Sellers to
consummate the transactions contemplated hereby or (ii) become a liability
of the Property, or any portion thereof, or the owner thereof, and there is
no valid basis upon which any such action, suit, arbitration, investigation
or proceeding may be commenced or asserted against Sellers or Purchaser.
(e) COMPLIANCE WITH LAWS. The Sellers are in
compliance with all laws, regulations, orders, judgments, awards and
decrees non-compliance with which could materially and adversely affect the
right or ability of Sellers to consummate the transactions contemplated
hereby. To Sellers' Actual Knowledge, the Property complies in all
material respects with all Legal Requirements.
(f) CONSENTS. No consent, authorization of or filing
with any governmental authority, whether federal, state or local, is
required in connection with the execution, delivery and performance of this
Agreement by Sellers and sale of the Property (except for transfers of
Permits and Licenses, but only to the extent identified in
SCHEDULE 7.2(g)).
(g) PERMITS AND LICENSES. To Sellers' Actual
Knowledge, the Permits and Licenses are in full force and effect. Sellers
have received no written notice that they are not in compliance with such
Permits and Licenses. To Sellers' Actual Knowledge, the Permits and
Licenses are the permits and licenses necessary for the lawful operation of
the Property, Club and Club Facilities and the Excluded Permits are the
only licenses and permits not being transferred to Purchaser.
(h) CONTRACTS. To Sellers' Actual Knowledge, the
Contracts are in full force and effect and Sellers have received no notice
that they are not in compliance with such Contracts. The Contracts are all
of the contracts and agreements affecting or relating to the ownership or
operation of the Property, the Club or the Club Facilities. There are no
amendments or other agreements concerning the Contracts that are not
included in SCHEDULE 7.2(h).
(i) UTILITIES. Sellers have not received any written
notice from any Governmental Authority regarding the termination of the
availability of water, sewer, electric or telephone service to the Property
and to Sellers' Actual Knowledge no circumstance or event exists that to
Sellers' Actual Knowledge will lead to the termination or material
reduction in said service. To Sellers' Actual Knowledge, the Property is
connected to and adequately served by all utilities necessary for the
current operation of the Property, Club and Club Facilities.
(j) NO HAZARDOUS MATERIALS. Except as set forth on
SCHEDULE 7.2(j), (i) there are no Hazardous Materials currently being used
by Sellers at the Property other than in compliance in all material
respects with Environmental Laws, (ii) Sellers have not received any
notice, of any threatened or pending suit, action or proceeding concerning
the non-compliance of the Property with any Environmental Laws,
(iii) Sellers have not received a written summons, citation, directive,
notice, complaint, letter or other communication from the United States
Environmental Protection Agency or any other Governmental Authority,
concerning: (a) any actual or alleged violation of any Environmental Laws
by Sellers at the Property or (b) any investigation or request for
information relating to the handling, packaging, transportation, treatment,
storage or disposal of solid, liquid or other Hazardous Material by Sellers
at the Property, and (iv) to Sellers' Actual Knowledge, no Person has
deposited or released Hazardous Materials on or transported same from the
Property in violation of applicable law.
(k) MEMBERSHIPS. Attached hereto as SCHEDULE 7.2(k) is
a complete list of the Members of the Club as of May 31, 2002, including:
(i) the Member's name, (ii) the type of Membership, (iii) the effective
date of the Membership, (iv) any refund obligations, (v) the Member
Installment Obligation, if any, of each such Member, and (vi) the amount of
current annual dues effective for the October 1, 2002 to September 30, 2003
Membership Year. The Membership Plan Documents and Membership Agreements
are all the agreements relating to the rights of Members to use the Club or
the Club Facilities. There are no amendments or other agreements
concerning the Membership Plan Documents and Membership Agreements that are
not included on EXHIBIT "B" and/or SCHEDULE 7.2(k). Except as set forth on
SCHEDULE 7.2(k), to Sellers' Actual Knowledge, each of the Membership
Agreements is in full force and effect and there is no existing material
default under any of the Membership Agreements.
(l) LIENS. Except as set forth on SCHEDULE 7.2(l),
which shall be paid and released at Closing by Seller, there are no unpaid
bills for labor, services or work performed or rendered at the Property, or
for materials or supplies furnished or delivered to the Property, which
could result in the filing of mechanics', materialmen's or laborers' liens
upon the Property except for labor, services or work contracted, performed
or rendered either in the ordinary course of business or otherwise
specifically permitted under this Agreement.
(m) TAXES. Except as set forth in the Title Insurance
Commitment, there are no taxes or assessments required to be paid to any
federal, state or local authority outstanding which could result in any
lien or encumbrance upon any portion of the Property. All sales taxes due
for the period through the Closing Date have or will be paid by Sellers
prior to Closing and evidence of said sales tax returns and payments shall
be provided to Purchaser for their review prior to Closing.
(n) WARRANTIES. To Sellers' Actual Knowledge, the
Warranties are in full force and effect and Sellers have received no
written notice that any such Warranties have been revoked, canceled or
otherwise impaired.
(o) CONDEMNATION PROCEEDINGS. To Sellers' Actual
Knowledge, there are no pending or threatened eminent domain or
condemnation proceedings affecting the Property or any portion thereof.
(p) ASSIGNMENTS. Sellers have not (i) made a general
assignment for the benefit of creditors, (ii) filed any voluntary petition
in bankruptcy or suffered the filing of an involuntary petition by
creditors, (iii) suffered the appointment of a receiver to take possession
of all or substantially all of such Sellers' assets, (iv) suffered the
attachment or other judicial seizure of all, or substantially all, of such
Sellers' assets, (v) admitted in writing their inability to pay their debts
as they come due, or (vi) made an offer of settlement, extension or
composition to their creditors generally.
(q) RECORDS. The Records made available for
Purchaser's review include all material documents relating to the Property
that are in Sellers' possession or control. To Sellers' Actual Knowledge,
there is not any material misstatement, omission or inaccuracy in the
Records.
(r) INSURANCE. Sellers have not received any written
notice of cancellation, suspension or coverage refusal with respect to any
insurance for the Property or any part thereof.
(s) NAMES, TRADEMARKS, LOGOS. Sellers are currently
utilizing the names, trademarks, and logos described on SCHEDULE 7.2(s)
attached hereto. The names, trademarks, and logos, including the federal
trademark registration filed by Sellers shall be assigned to Purchaser at
Closing. Sellers have received no written notice stating that the use of
such by Sellers in the operation of the Club and the Property violates or
infringes the rights of any other person or entity.
(t) WATER. To Sellers' Actual Knowledge, there has
been sufficient nonpotable water under the Water Permit to maintain the
golf courses in their customary condition and all agreements, permits, or
licenses required to use said water have been obtained and subject to
Sellers and Purchaser obtaining any required consents or approvals prior to
Closing, will be transferred or be in the process of being transferred to
Purchaser at Closing.
(u) GRAVEYARD. To Sellers' Actual Knowledge, no
portion of the Real Property is or has been used as a graveyard, provided
Sellers make no representation as to Native American burial grounds.
(v) WETLANDS. To Sellers' Actual Knowledge, there are
no material portions of the Property (other than lakes and littoral
shelves) which constitute jurisdictional "wetlands" under any applicable
federal, state or local law, ordinance, or regulation.
(w) LABOR MATTERS. Sellers have no collective
bargaining agreement affecting the Property. To Sellers' Actual Knowledge,
there have been no demands for collective bargaining by any union or labor
organization or other organization of Sellers' employees, and no
arbitration proceedings, are pending or threatened against or affecting
Sellers.
(x) FINANCIAL STATEMENT. To Sellers' Actual Knowledge,
the financial statements provided by Sellers to Purchaser are complete,
true, and correct in all material respects and they accurately describe the
financial condition of the Club as of the date prepared. Between the date
of the financial statements and the Effective Date of this Agreement, there
has been no material change in the financial condition of the Club.
(y) KNOWLEDGE. The following individuals have
knowledge of, and currently have or have had responsibilities relating to,
the following areas: (i) ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇, Esq. concerning matters relating to the Golf
Courses, the Club Facilities and the Property, (ii) ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇ concerning matters relating to the maintenance of the Golf Courses,
(iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ concerning matters relating to the financial condition
of the Club.
7.3 LIMITATIONS ON LIABILITY. The representations and
warranties of the Purchaser and the Sellers in this SECTION 7 and any cause
of action for the breach of any covenant set for in SECTION 8 will survive
Closing for a period of twelve (12) months. The terms "material" and
"material adverse" as used in SECTION 7.2, shall mean any item or items on
a cumulative basis that (i) exceeds Fifty Thousand Dollars ($50,000), or
(ii) imposes a material adverse impact or restriction on the operation or
ownership of the Club or the Property. Notwithstanding anything contained
in this Agreement to the contrary, in no event will (i) Sellers or
Purchaser be liable or accountable to the other for any Damages for a
breach of any representation, warranty or covenant under this Agreement
unless and until all such Damages (including those within the $50,000.00
materiality threshold set forth above) on a cumulative basis exceed in the
aggregate Seventy-Five Thousand Dollars ($75,000) and (ii) the aggregate
amount for which such party will be liable exceed One Million Dollars
($1,000,000) plus attorneys' fees and court costs. Notwithstanding
anything contained in this SECTION 7 to the contrary, neither Sellers nor
Purchaser will have any obligation to pay any Damages in connection with
any matters disclosed in the Schedules hereto or about which either party
discloses in writing to the other party on or before the day prior to the
Closing Date, including items disclosed in writing to Purchaser during the
Due Diligence Period. Nothing set forth in this Section 7.3 is intended or
will be construed to limit or affect equitable remedies, if available.
7.4 HOLDBACK. Sellers and Purchaser agree that the sum of
One Million Dollars ($1,000,000) of the Purchase Price (the "Holdback
Amount") shall not be paid to Sellers at Closing, but shall be distributed
directly to ____________________, Sellers' Banking Institution (the "Bank")
to be deposited in a segregated interest-bearing account to be held in
trust for a period of twelve (12) months from the Closing Date. The
Holdback Amount shall be held in trust to be utilized solely during the
twelve (12) month period to fund any claims or demands against Sellers by
Purchaser arising from the terms and conditions recited herein and in the
Closing Documents. Sellers shall deliver to Purchaser at Closing from Bank
an acknowledgement executed by the Bank of the terms and conditions of the
Trust Account in the form set forth in FORM M.
8. COVENANTS
Sellers covenant and agree to the following:
8.1 NO NEW CONTRACTS. From and after the Effective Date and
prior to the Closing, Sellers will not, without the prior written consent
of Purchaser, which will not be unreasonably withheld, enter into any new
contract, other than an Additional Contract, with respect to the Property.
8.2 INSURANCE TO REMAIN IN FORCE THROUGH CLOSING. The
insurance policies covering the Property which are in existence as of the
Effective Date, or equivalent coverage (with respect to amounts, provider
and terms), will remain continuously in force through the Closing Date.
8.3 MAINTENANCE OF PROPERTY. From and after the Effective
Date and prior to the Closing, Sellers will operate and manage the Property
consistent with its operation and management of the Property for the twelve
(12) months immediately preceding the Effective Date. Sellers will
maintain the Property in good repair and working order, and will deliver
the Property to Purchaser at the Closing in substantially the same
condition as it existed on the date of this Agreement, ordinary wear and
tear excepted. Except as otherwise set forth in this Agreement, from and
after the Effective Date until the earlier of (i) the termination of this
Agreement or (ii) the Closing Date, Sellers shall not (a) perform any
grading or excavation, construction or removal of any Improvements,
(b) commit any waste or nuisance upon the Property, or (c) impose any
easements, covenants, conditions or restrictions on the Property or
institute or participate in any annexation, zoning, platting, dedication or
other governmental action regarding the Property other than in the ordinary
course of business.
8.4 LITIGATION, CLAIMS, OR PROCEEDINGS. In the event a lien,
claim, or cause of action affecting the Property or the Club should arise
prior to Closing, Sellers shall advise Purchaser in writing upon becoming
aware thereof, and Sellers shall (i) if the claim is a mechanic's lien or
the aggregate of claims other than mechanics liens is less than One Hundred
Thousand Dollars ($100,000) (a) satisfy any such claims prior to Closing
and furnish Purchaser with evidence thereof, unless disputed, in which case
Sellers shall post a bond acceptable to Purchaser or escrow proceeds in an
amount acceptable to Purchaser to protect Purchaser from any lien, claim,
expense, or damages arising from said matter or (b) agree to assume all
obligations with respect to, indemnify Purchaser from any lien, claim,
expense, or damage arising from, said matter, and post a bond acceptable to
Purchaser or escrow proceeds in an amount acceptable to Purchaser to
protect Purchaser from any lien, claim, expense, or damages arising from
said matter, (ii) if the aggregate claims are in excess of One Hundred
Thousand Dollars ($100,000), Sellers shall (a) satisfy the claims pursuant
to subparagraph (i) above, or (b) provide written notice to Purchaser that
Sellers will not satisfy the claims and Purchaser may either terminate the
Agreement and receive the Deposits or receive a credit against the Purchase
Price in the amount of $100,000 and proceed to Closing pursuant to the
terms recited herein.
8.5 PERMITS. Sellers agree to cooperate, prior to Closing
and at no cost or liability to Sellers, with Purchaser in the transfer of
the Permits and Licenses to Purchaser.
8.6 TAXES. All payroll taxes, sales taxes, license taxes,
liquor taxes, use taxes, and all other obligations arising from and as a
result of the operation of the Club and due or to become due to any
governmental or quasi-governmental authority, whether municipal, state,
county, or federal, accruing prior to Closing shall be paid in full by
Sellers, and Sellers shall not take nor omit to take any action with
respect to said taxes which would prevent Purchaser's performance of its
obligations hereunder, impose upon Purchaser any obligation not
contemplated herein, or impair the operation of the Property, unless
disputed, in which case Sellers shall post a bond acceptable to Purchaser
or escrow proceeds in an amount acceptable to Purchaser to protect
Purchaser from any lien, claim, expenses, or damages arising from said
matter.
8.7 LIENS. From the date hereof and until Closing, Sellers
shall not sell, assign, or create any right, title, or interest whatsoever
in or to any of the Property, or create and permit to exist any liens,
encumbrance, or charge thereon, without discharging same at or before
Closing, except as otherwise permitted hereunder.
8.8 CONTRACTS; DEFAULT. Sellers agree to pay any and all
rents, charges, assessments, and expenses of any nature due and payable
under any Contract prior to the Closing Date. Sellers agree not to take
any action or permit any inaction which would create a default by Sellers
under any Contract; provided, however, nothing herein shall prohibit
Sellers from a good faith contest or appeal of any claim of default on the
part of Sellers.
8.9 ASSUMED OBLIGATIONS. Sellers shall use their
commercially reasonable efforts to obtain, by the Closing Date, all
required consents to transfer and assign the Assumed Obligations to
Purchaser. The parties acknowledge that obtaining the required consents
set forth on SCHEDULE 8.9 (the "Required Consents"), shall be a condition
precedent to Purchaser's obligations to proceed to Closing.
8.10 HAZARDOUS SUBSTANCE. From the Effective Date until
Closing, Sellers or its Affiliates will not nor will it knowingly allow any
Person to release any Hazardous Substance on the Property in contravention
of Environmental Laws.
8.11 BUSINESS PRACTICES. From the Effective Date until
Closing, Sellers shall cause the business of the Club and the Property to
be conducted in the ordinary course consistent with its operation and
management of the Property for the twelve (12) months immediately preceding
the Effective Date. In addition, Sellers shall cause the Club to maintain
financial records and books of account consistent with past practices.
8.12 VIOLATION OF REPRESENTATIONS. From the Effective Date
and until Closing, Sellers shall not take any action or omit to take any
action which action or omission would have the effect of violating any of
the representations, warranties, or covenants of Sellers contained in this
Agreement.
8.13 CLUB OPERATION RESTRICTIONS. From the Effective Date and
until Closing, Sellers shall not, except in the ordinary course of business
or pursuant to the Contracts, or the Additional Contracts as may be
delivered to Purchaser as provided herein, (i) enter into any new agreement
with existing Members of the Club or modify any existing Membership
Agreement or the Membership Plan Documents, if any, (ii) offer, transfer,
or sell any Memberships for an amount less than the initiation fees as of
the Effective Date, if any, (iii) offer Memberships or other rights to
access the Property through payment plans which accelerate the amounts
which would otherwise be due prior to the Closing Date or reduce or ▇▇▇▇▇
amounts which would otherwise be due after the Closing Date, or (iv) offer
any new Membership sales programs or other rights to access the Property
prior to the Closing Date without the written consent of Purchaser. Any
Member Installment Obligation due and owing for the period after Closing
and actually received by Sellers prior to the Closing Date will be retained
by Sellers and credited against the Purchase Price.
8.14 SALE RESTRICTIONS. Except as permitted in this
Agreement, from the Effective Date and until Closing, Sellers shall not,
except in the ordinary course of business or pursuant to the Contracts,
sell, encumber, or grant any interest in the Property, or any part thereof
in any form or manner whatsoever.
8.15 COBRA. Sellers shall comply with the continuation health
care requirements of the Code or ERISA as such requirements have applied to
any group health plan maintained by or for Sellers including to the extent
applicable any current or former employee of Sellers or any spouse, former
spouse, dependent child, or former dependent child of any such employee on
or prior to the Closing Date. For purposes of this provision, references
to the Code and ERISA shall include references to any provisions of such
statutes, as they may be amended from time to time prior to Closing.
Notwithstanding anything contained in this Paragraph, Purchaser expressly
does not assume, and Sellers completely retains, any liability for any
continuation health care coverage requirements described herein.
9. MISCELLANEOUS CLOSING MATTERS
9.1 PRORATIONS AND ADJUSTMENTS AT CLOSING.
(a) All real estate taxes (including assessments and
other items shown on the Title Insurance Commitment), Indian Trace
Development District taxes and assessments (which are assessed in advance
based upon a fiscal year beginning October 1st and ending September 30th),
Town Foundation assessments, personal property taxes, rents, equipment
leases, membership dues (which are based upon a fiscal year beginning
October 1st and ending September 30th) and bag storage, locker fees, dues,
prepaid fees or charges (but not initiation fees) and items of income and
expense that are attributable both to periods prior to and after Closing,
to the extent of available information, will be prorated through the day of
Closing (by reference to the period for which such amounts are calculated
and charged), and cash due at Closing will be increased or decreased as may
be required thereby. Taxes will be prorated based on the current year's
tax with due allowance made for the maximum allowable discount and any
other applicable exemptions. If Closing occurs on a date when the current
year's millage is not fixed and the current year's assessment is available,
taxes will be prorated based upon such assessment and the prior year's
millage. If the current assessment is not available, then taxes will be
prorated on the prior year's tax based upon the maximum allowable discount.
Any tax proration based on an estimate may at the request of either
Purchaser or Sellers be subsequently readjusted within thirty (30) days of
receipt of the tax ▇▇▇▇ and a statement to that effect will be set forth in
the closing statement (this sentence shall survive the Closing).
Certified, confirmed and ratified governmental special assessment liens as
of the Closing Date are to be paid by the Sellers. All other pending
assessments (not certified) by governmental authorities set forth on the
Title Commitment, if any, are to be paid by Purchaser. All other
assessments shall be prorated as of the Closing Date. If the Improvements
for which such liens have been placed upon the Property have been
substantially completed as of the Closing Date, such pending liens will be
considered as certified, confirmed or ratified and Sellers will, at
Closing, be charged an amount equal to the last estimate of the assessment
for the Improvements by the public body. Purchaser will receive a credit
at Closing for tournaments, banquet and special events deposits received by
Sellers prior to Closing but which pertain to tournaments, banquets and
special events to occur after Closing, and Sellers will receive a credit
for deposits or prepaid items paid by Sellers prior to Closing in respect
of tournaments, banquets and special events to occur after Closing, and for
utility deposits transferred to Purchaser.
(b) The proration of dues, bag storage and locker fees
will be net of actual credit card fees charged in connection with the
payment of those amounts and will be based on the October 1, 2001 to
September 30, 2002 membership year. Dues, bag storage and locker fees paid
on or before the date of Closing for the October 1, 2001 - September 30,
2002 membership year will be prorated at the Closing.
9.2 PRORATIONS POST CLOSING. Sellers and Purchaser
acknowledge that it will not be possible to make all necessary adjustments
in items of proration at Closing. As a result, all utility charges,
accounts payable and receivable and other items of income and expense will
be subject to a post-closing adjustment procedure set forth in this SECTION
9.2. Other items of income or expense will be prorated as to Sellers for
the period up to and including the day of the Closing and as to Purchaser
for the period of the day after the Closing and thereafter. Sellers and
Purchaser agree that their respective designated accounting personnel will
diligently proceed to make such adjustments promptly following the date of
Closing and to finalize all such adjustments within the later of:
(i) thirty (30) days from Closing or (ii) thirty (30) days from the date
all information necessary to make such adjustments is available to the
Parties, but in no event later than sixty (60) days from the Closing Date.
Each Party agrees promptly to pay to the other Party, within ten (10) days
of such final adjustment determination, any amounts due and owing to such
party. The provisions of this SECTION 9.2 will survive the Closing.
9.3 CALCULATION OF PRORATIONS. In the calculating of the
prorations mentioned in this Agreement, the Sellers will be deemed to own
the Property through the Closing Date, and the Purchaser will be deemed to
own the Property thereafter. All prorations will be based upon a 365 day
year or, where other than an annual period is involved, on the actual
number of days in the applicable period.
9.4 UTILITIES. Sellers shall instruct the companies and
municipalities furnishing utility services to the Property to make
termination readings as close as possible to the morning of the Closing
Date, which may be before or after the Closing Date, and to submit final
statements for utility services, which Sellers agrees to pay in a timely
manner.
9.5 INVENTORY. Sellers acknowledge that all Supply Inventory
is included in the Purchase Price. Sellers agrees to continue to maintain
and deliver to Purchaser, at Closing, the Inventory at a level of quantity,
quality, and nature consistent and adequate for the continuation of the
ongoing operation of the Club to the quality presently operated and
consistent with prior operations by Sellers. In addition to the Purchase
Price, Purchaser agrees to pay to Sellers in cash, at Closing, for the
Consumable Inventory and Saleable Inventory pursuant to SECTION 2.2(b).
The parties agree that not more than five (5) days prior to the Closing
Date, a representative of each party shall jointly conduct an inventory of
the Inventory, and the Inventory to be conveyed to Purchaser shall be as
shown by such inventory less that portion sold by Sellers prior to Closing
in the ordinary course of business.
9.6 OTHER ADJUSTMENTS.
(a) ACCOUNTS PAYABLE. All accounts payable that are
attributable to operations of the Property, the Club or the Club Facilities
for the period through the day of Closing will be paid by Sellers.
Accounts payable which are attributable to periods both before and after
Closing will be prorated as provided in SECTION 9.1 above, and if due and
payable prior to Closing will be paid by Sellers, or if due and payable
after Closing will be paid by Purchaser.
(b) ACCOUNTS RECEIVABLE. Except as otherwise
specifically provided in SECTION 9.1(a) above, all Accounts Receivable for
goods sold or services rendered prior to Closing that are earned and
attributable to the operation of the Property, the Club or the Club
Facilities through the Closing Date shall remain the property of Sellers
("Sellers' Receivables) and shall be billed directly by Sellers.
(i) BUNKER CONTRACT. Sellers agree to indemnify
and hold Purchaser harmless from any and all claims, liens or demands
arising from the Bunker Contract that has been completed as of the
Effective Date, except for the clean up activities which Sellers agree to
complete, at Sellers' costs, prior to Closing.
9.7 PURCHASER'S CLOSING COSTS. At Closing, Purchaser will
pay for inspections (if any), all recording fees associated with
Purchaser's financing, all costs of financing, Purchaser's attorneys' fees
(including attorneys' fees, Purchaser's expert costs, and paraprofessionals
costs), the cost of the mortgagee's title insurance premium and any
endorsements thereto required by Purchaser's lender.
9.8 SELLERS' CLOSING COSTS. At Closing, Sellers will pay for
its attorney's fees, paraprofessional costs, the cost of recording any
corrective instruments or new easements required hereby, Florida
documentary stamp taxes and all other recording fees and charges on the
Deed to the Real Property, the cost of the Survey and the cost of the Title
Policy.
9.9 COST OF TRANSFER OF ASSUMED OBLIGATIONS. Purchaser and
Sellers will each pay fifty percent (50%) of any fee or cost charged by the
other party to Assumed Obligations in connection with the assignment of
such Assumed Obligation to Purchaser. At or before Closing, Sellers will
pay the amounts required by any other party under an Assumed Obligation to
procure the release of Sellers under such Assumed Obligation.
Notwithstanding the above, Purchaser will pay all costs of transferring or
obtaining all required liquor licenses.
10. CLOSING DOCUMENTS
10.1 DOCUMENTS TO BE DELIVERED BY SELLERS. At Closing,
Sellers will execute and deliver, and/or cause to be delivered, to
Purchaser the following:
(a) A Special Warranty Deed conveying to Purchaser fee
simple title to the Real Property, subject to the Permitted Exceptions, in
the form of FORM C;
(b) a No-Lien Affidavit as to the Property, in the form
of FORM D;
(c) a Non-Foreign Status Affidavit;
(d) a ▇▇▇▇ of Sale transferring to Purchaser the
Tangible Assets in "AS IS, WHERE IS, WITH ALL FAULTS" condition, in the
form of FORM E;
(e) all keys and master keys to all locks on the
Property and combinations to combination locks and other codes for other
security devices in the possession or control of Sellers or their
respective agents or affiliates;
(f) the original executed copies of all Membership
Agreements;
(g) letters addressed to the Members, in the form of
FORM F;
(h) a Sellers' Certificate, in the form of FORM G;
(i) an Assignment and Assumption of the Water Permit,
in the Form of FORM H;
(j) Originals (if available) or copies (if originals
are not available) of the Permits and Licenses in the possession of Sellers
which can be transferred and the executed application, transfer, or
notification forms necessary to effect the transfer to Purchaser of all
applicable Permits and Licenses;
(k) Originals (if available) or copies (if originals
are not available) of all building plans for the Improvements and
Warranties in the possession of Sellers;
(l) letters addressed to parties under Assumed
Obligations, in the form of FORM I; and
(m) Acknowledgement of Trust Agreement in the form
attached as FORM M.
10.2 DOCUMENTS TO BE DELIVERED BY PURCHASER. At Closing,
Purchaser will deliver or caused to be delivered to Sellers the Purchase
Price (of which the Deposit will be a part) and the Purchaser's
Certificate.
10.3 MUTUAL OBLIGATIONS. At the Closing, Sellers and
Purchaser will mutually execute and deliver to each other:
(a) A closing statement in customary form;
(b) the Memorandum of Agreement in the form attached as
FORM B;
(c) the License Agreement in the form attached as FORM
A;
(d) authority documents of Sellers and Purchaser
authorizing the sale and purchase of the Club;
(e) an Assignment and Assumption of the Assumed
Obligations in the form attached hereto as FORM J;
(f) an Assignment and Assumption of the Intangible
Personal Property in the form attached hereto as FORM K;
(g) Interim Accounting Agreement in the form attached
as FORM L;
(h) any required state, county and municipal transfer
declarations; and
(i) such other documents as are mentioned herein or as
may be reasonably necessary to effectuate the closing of the transaction
contemplated by this Agreement.
11. MISCELLANEOUS
11.1 NOTICES. All notices, requests, consents, instructions
and communications required or permitted under this Agreement will be in
writing (including telecopy, telegraphic communication) and will be (as
elected by the person giving such notice) hand-delivered by messenger or
overnight courier service, telecommunicated, or mailed (air mail if
international) by registered or certified mail (postage prepaid), return
receipt requested, and addressed to each Party at their respective
addresses as set forth below or to such other addresses as such Party may
designate by notice complying with the terms of this Section:
If to Sellers: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Arvida Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇ ▇▇▇▇▇, Esq.
Arvida Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
And to: ▇▇▇▇▇' ▇. ▇▇▇▇▇▇, Esq.
Arvida/JMB Partners
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
And to: White & Case LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to Purchaser: HILLWOOD ENTERPRISES, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Copy to: HILLWOOD ENTERPRISES, L.P.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
And to: Addison Law Firm
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Each such notice, request or other communication will be considered given
and will be deemed delivered: (a) on the date delivered if by personal
delivery or courier service, (b) on the date of transmission with confirmed
answer back if by telex or telegraph or telecopier if the confirmation
shows that the communication was received prior to 5:00 P.M. Eastern Time
on a business day, and on the next business day if the confirmation shows
that the communication was not received until after 5:00 P.M. Eastern Time
or on a nonbusiness day; or (c) on the date upon which the return receipt
is signed or delivery is refused or the notice is designated by the postal
authorities as not deliverable, as the case may be, if mailed. Rejection,
refusal to accept or inability to deliver of which no notice was given will
be deemed to be receipt of such notice, request or other communication.
11.2 DEFAULT: REMEDIES.
(a) PURCHASER DEFAULT. If, prior to Closing, Purchaser
is in default under any of the terms, covenants and/or provisions of this
Agreement, and such default is not cured within ten (10) days after written
notice (detailing the default with reasonable specificity) thereof is given
by Sellers to Purchaser (provided, however, no such notice and opportunity
to cure will be required with respect to Purchaser's failure to close on
the Closing Date, for which time is of the essence), then Escrow Agent will
deliver to Sellers the Deposits, and Sellers will be entitled to retain all
of such monies as full and agreed upon liquidated damages in full
settlement of any and all claims against Purchaser for Damages or
otherwise, whereupon this Agreement will be null, void and of no further
force and effect and neither party will have any further liability or
obligation to the other hereunder; provided that this SECTION 11.2(a) will
not restrict or limit any indemnity for which provision is made in this
Agreement. The Parties hereby acknowledge that this provision for
liquidated damages is a fair and reasonable measure of the Damages to be
suffered by Sellers in the event of Purchaser's default because the exact
amount of such Damages are incapable of being ascertained.
(b) SELLERS' DEFAULT. If, prior to Closing, Sellers
are in default under any of the terms, covenants and/or provisions of this
Agreement, and such default is not cured within ten (10) days after written
notice (detailing the default with reasonable specificity) thereof is given
by Purchasers to Sellers (provided, however, no such notice and opportunity
to cure will be required with respect to Sellers' failure to close on the
Closing Date, for which time is of the essence), Purchaser will have the
right to: (a) cancel this Agreement by giving written notice to Sellers,
and this Agreement will be deemed to be terminated as of the date of such
notice, in which event Purchaser will be entitled to an immediate return of
the Deposits, or (b) maintain an action for specific performance.
Notwithstanding the above, in the event of any intentional default by
Sellers which results in the Closing not occurring, the Purchaser shall be
entitled to recovery of (i) the Deposits, and (ii) all actual out-of-pocket
costs and expenses incurred from April 19, 2002, to the date of
termination. Except as provided above, Sellers will not be liable to
Purchaser for any Damages and the provisions of this SECTION 11.2(b) are
the sole and only remedies of Purchaser against Sellers. In no event will
Sellers be liable to Purchaser for any loss of profits or any other
indirect, special, consequential, punitive or similar damages in connection
with such default and Purchaser expressly waives its rights to any such
remedies in connection with such default. Notwithstanding the
characterization of any provisions in this Agreement as representations,
warranties or covenants, Sellers will not be liable for fraud, loss of
bargain or punitive, treble or other measures of damages if such
representations or warranties prove to be untrue or such covenants are
breached, and Purchaser will be limited to the remedies set forth herein
and Purchaser expressly waives its rights to any other remedies.
(c) DEFAULT AFTER CLOSING. If Purchaser or Sellers
fail to perform any of the covenants of this Agreement to be performed
after Closing, and such default is not cured within ten (10) days after
written notice thereof, the other party will have all remedies at law or in
equity, including recovery of all damages, subject to the limitations in
SECTION 7.3 and this SECTION 11. Where the remedy requested is injunctive
relief, it will not be necessary for the party requesting injunctive relief
to show any actual damage or post an injunction bond.
(d) ATTORNEYS' FEES. The Parties further agree that in
the event it becomes necessary for either Party to litigate or arbitrate in
order to enforce its rights under the terms of this Agreement, the
prevailing Party will be entitled to recover reasonable legal expenses and
court and arbitration costs through all trial and appellate levels.
(e) RECOURSE LIMITED TO PROCEEDS OF SALE; SURVIVAL.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, NEITHER SELLERS
NOR ANY PRESENT OR FUTURE CONSTITUENT PARTNER IN OR AFFILIATE OF SELLERS,
NOR ANY SHAREHOLDER, OFFICER, DIRECTOR, EMPLOYEE, TRUSTEE, BENEFICIARY OR
AGENT OF ANY CORPORATION OR TRUST THAT IS OR BECOMES A CONSTITUENT PARTNER
IN SELLERS, SHALL BE PERSONALLY LIABLE, DIRECTLY OR INDIRECTLY, UNDER OR IN
CONNECTION WITH THE AGREEMENT, OR ANY DOCUMENT, INSTRUMENT OR CERTIFICATE
SECURING OR OTHERWISE EXECUTED IN CONNECTION WITH THE AGREEMENT, OR ANY
AMENDMENTS OR MODIFICATIONS TO ANY OF THE FOREGOING MADE AT ANY TIME OR
TIMES, HERETOFORE OR HEREAFTER, OR IN RESPECT OF ANY MATTER, CONDITION,
INJURY OR LOSS RELATED TO THE AGREEMENT OR THE LAND, AND ONLY SELLERS'
INTEREST IN THE LAND (OR PROCEEDS THEREOF) SHALL BE AVAILABLE TO SATISFY
ANY CLAIMS AGAINST SELLERS; AND THE PURCHASER AND EACH OF ITS SUCCESSORS
AND ASSIGNEES WAIVES AND DOES HEREBY WAIVE ANY SUCH PERSONAL LIABILITY.
For purposes of the Agreement, and any such instruments and certificates,
and any such amendments or modifications, neither the negative capital
account of any Constituent Partner in Sellers, nor any obligation of any
Constituent Partner in Sellers to restore a negative capital account or to
contribute capital to Sellers or to any other Constituent Partner in
Sellers, shall at any time be deemed to be the property or an asset of
Sellers or any such other Constituent Partner (and neither Purchaser nor
any of its successors or assignees shall have any right to collect, enforce
or proceed against or with respect to any such negative capital account or
a Constituent Partner's obligation to restore or contribute). As used in
this Paragraph, a "Constituent Partner" in Sellers shall mean any direct
partner in Sellers and any person that is a partner in any partnership
that, directly or indirectly through one or more other partnerships, is a
partner in Sellers. Unless otherwise noted herein, none of Sellers'
representations, warranties, covenants or agreements shall survive Closing
and all of the same shall merge into the Deeds to be given by Sellers
except as and to the extent expressly provided to the contrary herein;
provided however, that notwithstanding the foregoing, if Purchaser learns
of any breach of non-performance of any representation, warranty, covenant
or agreement prior to Closing, Purchaser shall promptly notify Sellers
thereof, and such representation, warranty, covenant or agreement shall not
survive Closing (whether or not Purchaser notifies Sellers thereof) but,
rather, shall merge into the Deeds to be given by Sellers, it being the
intention of the parties that no breach or non-performance of which
Purchaser has knowledge prior to Closing shall survive Closing should
Purchaser elect to close notwithstanding knowledge of such breach or non-
performance. Enforcement by Sellers, their successors and assignees, of
each and every covenant and obligation (including but not by way of
limiting, obligations to indemnify and hold harmless) of Purchaser set
forth herein, and exercised by Sellers, their successors and assignees, of
all rights granted to any of them herein, shall survive all closings and
deliveries of deeds, notwithstanding anything set forth herein to the
contrary. In no event shall Sellers be liable for any special, incidental,
exemplary or punitive damages, or for any indirect or consequential
damages, including but not limited to those for business interruption or
loss of profits, even if Sellers are notified of the possibility of such
damages.
11.3 REAL ESTATE BROKERS. Purchaser and Sellers represent and
warrant to the other that they have not dealt with any real estate agent,
broker or finder in connection with the transaction contemplated by this
Agreement, except that Purchaser has previously dealt with ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ and Sellers will be responsible for any commission that may be
determined to be payable to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇. Purchaser and Sellers
hereby agree to indemnify, defend and save the other harmless from the
claims and demands of any real estate agent, broker or finder claiming to
have dealt with the indemnifying party in connection herewith. Each
indemnity will include all costs and expenses incurred by the indemnified
party in enforcing this indemnity, including without limitation all
attorneys' fees (including attorneys' fees, court costs, expert costs, and
paraprofessionals costs) and other professional charges. This SECTION 11.3
will survive termination of this Agreement and Closing.
11.4 EMINENT DOMAIN. If prior to the Closing Date any portion
of the Property (i) (estimated to be worth more than Five Hundred Thousand
and 00/100 Dollars ($500,000.00) by an appraiser agreed upon by Sellers and
Purchaser) or (ii) any portion which has a material adverse affect on the
Club or the operation of the Property is taken by any Governmental
Authority under its power of eminent domain, then Purchaser may by written
notice to Sellers and Title Company elect to cancel this Agreement within
ten (10) days following such taking, in which event both Parties shall be
relieved and released of and from any further liability hereunder (except
for any liability which expressly survives termination of this Agreement),
and the Deposits shall forthwith be returned to Purchaser by the Escrow
Agent, and thereupon this Agreement shall become null and void and be
considered cancelled with respect to the Property, except as otherwise
provided herein. If no such election is made, both the Sellers and the
Purchaser, by their respective attorneys, shall have the right to appear
and to defend their interests in the Property in such proceedings and this
Agreement shall remain in full force and effect, and the purchase
contemplated herein, less any interest taken by eminent domain or
condemnation, shall be effected with no further adjustment, and upon the
Closing Date, Sellers shall assign, transfer and set over to Purchaser all
of the right, title and interest of Sellers in and to any awards that have
been or that may thereafter be made for taking of the Property.
11.5 CASUALTY DAMAGE. If, prior to the Closing Date, the
Property or any portion thereof is damaged by fire, vandalism, acts of God
or other casualty or cause, Sellers will promptly give Purchaser written
notice of any such damage, together with Sellers' good faith estimate of
the cost of repair and restoration. In the event there is damage and
destruction to the Property and the cost of repair and restoration of such
Property is less than Five Hundred Thousand and 00/100 Dollars
($500,000.00), as reasonably determined by an architect agreed upon by
Sellers and Purchaser, the Closing will proceed as originally scheduled
without diminution in the Purchase Price, except for a credit against the
Purchase Price in the amount of any insurance deductible or self-insured
amount, which in no event will be an amount greater than the value of the
casualty, and Sellers will assign to Purchaser any and all right, title and
interest Sellers may have in insurance proceeds and the right to receive
the same with regard to such damage or destruction with a credit against
the Purchase Price for any deductible or self-insured amount under such
policy. In the event the cost of repair and restoration of such damaged
Property equals or exceeds Five Hundred Thousand and 00/100 Dollars
($500,000.00), as reasonably determined by an architect agreed upon by
Sellers and Purchaser, then Purchaser will have the option, by written
notice to Sellers within ten (10) days after the damage estimate is
received from the architect to: (a) take the Property as it then exists
without abatement of the Purchase Price, except for a credit against the
Purchase Price in the amount of any insurance deductible or self-insured
amount, which in no event will be an amount greater than the value of the
casualty, together with the insurance proceeds, if any, or the right to
receive the same and the right to any other claims arising as a result of
the damage, in which event the Closing will proceed, or (b) terminate this
Agreement, whereupon the Deposits will be returned to Purchaser and the
Parties will be relieved of all further obligations hereunder except those
that expressly survive termination of this Agreement. If Purchaser is
obligated or elects to close this transaction subsequent to any casualty
damage as provided for in this SECTION 11.5, Sellers agree to cooperate
with Purchaser in any loss adjustment negotiations, legal actions and
agreements with the insurance company, and to assign to Purchaser at
Closing their right to such insurance proceeds, and Sellers will not settle
any insurance claims or legal actions relating thereto without Purchaser's
prior written consent, which consent will not be unreasonably withheld.
11.6 INTERPRETATION PRESUMPTION. This Agreement has been
negotiated by the Parties hereto and by the respective attorneys for each
party. The Parties represent and warrant to one another that each has, by
counsel and otherwise, actively participated in the finalization of this
Agreement, and in the event of a dispute concerning the interpretation of
this Agreement, each Party hereby waives the doctrine that an ambiguity
should be interpreted against the Party which has drafted the document.
11.7 PARTIAL INVALIDITY. If any term or provision of this
Agreement is, to any extent, held by a court of competent jurisdiction to
be invalid or unenforceable, the remainder of this Agreement or the
application of such invalid term or provision to other Persons or
circumstances will not be affected thereby.
11.8 APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of Florida.
11.9 ENTIRE AGREEMENT. This Agreement represents the entire
agreement between the Parties hereto, and neither Sellers nor Purchaser,
nor any agent representing either, has made any statement, promise or
agreement, orally or otherwise, in addition to or in conflict with the
terms of this Agreement. Any representation or agreement made during the
negotiations is hereby merged into this Agreement and if not set forth
herein, is hereby waived.
11.10 CAPTIONS/HEADINGS. The section captions of this
Agreement have been inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope or intent of
this Agreement. "Exhibit" or "Exhibits" means the specific Exhibit or group
of Exhibits referred to herein and attached hereto and made a part of this
Agreement by the reference thereto made. "Form" or "Form" means the
specific Form or group of Forms referred to herein and attached hereto and
made a part of this Agreement by the reference thereto made. "Schedule" or
"Schedules" means the specific Schedule or group of Schedules referred to
herein and attached hereto and made a part of this Agreement by the
reference thereto made. In the event one or more Exhibits, Schedules or
Forms referred to herein are not attached or completed at the date hereof,
or are required to be updated, modified or changed at and as of the
Closing, such Exhibit, Schedule or Form will be completed as soon as
practical, and when initialed by Sellers and Purchaser will be attached
hereto and will then constitute the Exhibit, Schedule or Form referred to
herein. The words "hereof," "herein" and words of like import refer to
this Agreement as a whole and not to the section or paragraph in which they
appear, unless the contrary is clearly indicated by the context.
11.11 MODIFICATIONS. This Agreement may be waived, changed,
modified, amended or discharged only by an agreement in writing and signed
by the Party against whom enforcement of such waiver, change, modification,
amendment or discharge is sought.
11.12 RECORDING. Other than the Memorandum of Agreement,
neither Sellers nor Purchaser will record this Agreement, nor any
memorandum or other notice of its terms. The Parties recognize that the
recording of this Agreement or any other memorandum of its terms by
Purchaser or Sellers (except for the Memorandum of Agreement) will
constitute a default by Purchaser or Sellers under this Agreement.
Additionally, the recording of this Agreement or any memorandum (except for
the Memorandum of Agreement) of its terms may create a cloud on the title
of the Property and will cause irreparable harm to Sellers or Purchaser,
entitling Sellers and Purchaser to enforce their respective obligations by
an action for specific performance and/or any other right or remedy
provided at law and/or in equity. Each Party hereby indemnifies and holds
harmless the other Party for any loss, cost or expense incurred by such
indemnified Party, including but not limited to attorneys' fees and court
costs through all negotiations, trial and appellate levels resulting from
the other Party's recordation of this Agreement or any memorandum of its
terms (except for the Memorandum of Agreement). The provisions of this
Section will survive any termination of this Agreement and Closing.
11.13 ASSIGNMENT.
(a) Purchaser may assign all of its rights and
obligations hereunder to any Affiliate, including a to be formed entity
owned by Purchaser and Heritage Golf Group, Inc., or their respective
Affiliates, however, the initial Purchaser shall remain liable for all
obligations hereunder through Closing. Otherwise, Purchaser may not assign
any of its rights and obligations hereunder to any party without the prior
written consent of Sellers, which consent will not be unreasonably
withheld; provided, however, that Seller will not thereby be relieved of
its obligations hereunder.
(b) Prior to Closing, Sellers may not assign any of
their rights or obligations hereunder without the prior written consent of
Purchaser, in Purchaser's sole and absolute discretion, except to an
Affiliate of Sellers with the power to convey the Property as required
hereby. After Closing, Sellers may assign any or all of their rights
hereunder without Purchaser's consent.
11.14 SUCCESSORS AND ASSIGNS. This Agreement is binding upon,
and will inure to the benefit of, the Parties hereto and their respective
successors and permitted assigns.
11.15 TIME OF ESSENCE. Time is of the essence of this
Agreement. If the day for performance of any obligation under this
Agreement falls on a Saturday, Sunday or recognized holiday, the time for
such performance will be extended to the next business day that is not a
national or banking holiday.
11.16 NO PUBLICATION OR DISCLOSURE. In addition to the
provisions of the Confidentiality Agreement, the Parties agree that no
public announcement of the transaction hereby contemplated will be made
which discloses any of the financial terms hereof without the prior written
consent of the other Party; provided, however, that nothing herein will
prevent the limited disclosure or use by either Party of this Agreement or
any of the terms hereof that is: (i) made in one or more reports prepared
to be sent to investors by either Party hereto or their Affiliates,
(ii) required by law to be disclosed to governmental agencies in connection
with (a) the approval or reporting of the transaction contemplated herein,
(b) securities, financial or tax reporting requirements, or (c) any
administrative, legislative or judicial proceeding or pursuant to any
decree or judgment of any administrative agency or tribunal or any court of
competent jurisdiction, or (iii) already known by the Persons to whom such
disclosure or publication is made by such Party. Any breach of this
covenant not to disclose will, at the election of the Party not giving such
consent to disclosure, constitute a material default by the Party making
such disclosure under this Agreement.
11.17 [Intentionally deleted.]
11.18 COUNTERPARTS. This Agreement and any amendments may be
executed in one or more counterparts, each of which will be deemed an
original and all of which together will constitute one and the same
instrument.
11.19 NO THIRD PARTY BENEFICIARIES. Except as otherwise
expressly stated in this Agreement, this Agreement is for the sole benefit
of the Parties hereto, their respective successors and permitted assigns,
and no other Person will be entitled to rely upon or receive any benefit
from this Agreement or to constitute a third party beneficiary hereunder.
11.20 BACKUP OFFERS. After June 24, 2002, Sellers will not
negotiate or solicit with any other parties concerning the sale of the Club
and any negotiations with other prospective purchasers that may have been
entered into will be held in abeyance pending a Closing hereunder and will
be terminated in the event of such Closing. In the event that Purchaser
defaults hereunder prior to or at Closing, Sellers may resume negotiations
with such other prospective purchasers.
11.21 RADON DISCLOSURE. Radon is a naturally occurring
radioactive gas that when accumulated in a building in sufficient
quantities may present health risks to persons who are exposed to it over
time. Levels of Radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding Radon or
Radon testing may be obtained from your County Public Health unit.
11.22 NON-COMPETITION. For a period of 10 years after the
Closing Date, (a) Sellers, (b) any entity in which Sellers own a
controlling interest or in which Sellers and one or more other persons or
entities own equally a controlling interest, or (c) JMB Realty Corporation
("JMB," but excluding the officers, directors, employees or shareholders,
direct or indirect, of JMB Realty Corporation) or any entity in which JMB
owns a controlling interest or in which JMB and one or more other persons
or entities own equally a controlling interest, shall not engage in any
club or golf facility project that is similar to the Club within a 10-mile
radius of the Property. This provision shall survive the Closing for a
period of ten (10) years.
11.23 COOPERATION. During the six (6) months immediately
following Closing, upon the reasonable request of Purchaser, Sellers shall
assist, at no cost or liability to Sellers, the Purchaser with matters
relating to the transfer of the Club from Sellers to Purchaser. This
provision shall survive the Closing for six (6) months.
11.24 LETTER OF INTENT. That certain letter of intent between
Sellers and Hillwood Enterprises, L.P. dated June 24, 2002 is hereby
terminated.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement
to be executed as of the date and year first written above.
Signed, sealed and delivered
in the presence of: SELLERS:
____________________ WESTON HILLS COUNTRY CLUB LIMITED
PARTNERSHIP, a Delaware limited
partnership
____________________
By: WHCC Inc., an Illinois
corporation, general partner
By:
-------------------------
------------------------------
(Print or Type Name)
Title:
-------------------------
ARVIDA/JMB PARTNERS, a Florida
general partnership
By: ARVIDA/JMB Managers, Inc.
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
PURCHASER:
HILLWOOD ENTERPRISES, L.P., a Texas
limited partnership
By: AHB, Inc., a Texas corporation,
its general partner
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
JOINDER
-------
REPUBLIC TITLE OF TEXAS, INC., as Escrow Agent, hereby joins in this
Agreement for the purpose of agreeing to be bound by the terms and
provisions of SECTION 11.17 of such Agreement.
REPUBLIC TITLE OF TEXAS, INC.
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
JOINDER
-------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, as Broker, hereby joins in this Agreement for
the purpose of acknowledging and agreeing that the commission payable in
connection with the sale of the Property is One Percent (1%) of
$23,500,000.00, which will be the only fee, expense or other compensation
due and owing to Broker and will be paid if and when there is a Closing.
By:
------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
LIST OF EXHIBITS
----------------
EXHIBIT A Real Property Description
EXHIBIT B Membership Plan Documents
SCHEDULE 2.2(d) Allocation of Purchase Price
SCHEDULE 4.2(k) Purchaser's Closing Conditions
SCHEDULE 6.9 Excluded Permits
SCHEDULE 6.10 List of Tournaments, Banquets and Special Events
SCHEDULE 7.2(d) Sellers' Litigation
SCHEDULE 7.2(g) List of Permits and Licenses
SCHEDULE 7.2(h) List of Contracts
SCHEDULE 7.2(i) List of Tangible Assets
SCHEDULE 7.2(j) Hazardous Substances
SCHEDULE 7.2(k) Membership List and Agreements
SCHEDULE 7.2(l) Liens
SCHEDULE 7.2(s) Names, Trademarks, Logos
SCHEDULE 8.9 Required Consents
FORM A License Agreement
FORM B Memorandum of Agreement
FORM C Special Warranty Deed
FORM D No Lien Affidavit
FORM E ▇▇▇▇ of Sale
FORM F Member Notification Letter
FORM G Sellers' Certificate
FORM H An Assignment and Assumption of Water Permit
FORM I Assumed Obligations Letter
FORM J An Assignment and Assumption of the Assumed
Obligations
FORM K An Assignment and Assumption of the Intangible
Personal Property
FORM L Interim Accounting Agreement
FORM M Acknowledgement of Trust Account
FIRST AMENDMENT TO
------------------
SALE AND PURCHASE AGREEMENT
---------------------------
THIS FIRST AMENDMENT TO SALE AND PURCHASE AGREEMENT (this "First
Amendment") dated as of September 13, 2002, is entered into by and between
WESTON HILLS COUNTRY CLUB LIMITED PARTNERSHIP, a Delaware limited
partnership ("Weston Hills") and ARVIDA/JMB PARTNERS, a Florida general
partnership ("Arvida" and together with Weston Hills, the "Sellers") and
HILLWOOD ENTERPRISES, L.P., a Texas limited partnership ("Purchaser").
Sellers and Purchaser may be referred to collectively in this Agreement as
the "Parties" or individually as a "Party".
WITNESSETH:
----------
WHEREAS, Sellers and Purchaser have entered into that certain Sale
and Purchase Agreement dated effective August 23, 2002;
WHEREAS, Sellers and Purchaser desire to enter into this First
Amendment to amend certain provisions and to set forth certain additional
agreements between the Parties.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained in this First Amendment, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, the Parties hereby agree as follows:
1. SECTION 1.1(xxx) of the Agreement shall be deleted and replaced
with the following:
"(xxx) 'TITLE INSURANCE COMMITMENT' means a title insurance
commitment issued by the Title Company agreeing to issue to Purchaser
an owner's policy of title insurance, and to Purchaser's lender a
simultaneous mortgagee policy, in the amount of $18,000,000.00."
2. SECTION 4.2(f). Section 4.2(f) of the Agreement shall be
deleted and replaced with the following:
"(f) The Title Company will have provided Purchaser with
written evidence that it is prepared to issue an Owner's Policy of
Title Insurance (the "Title Policy") on the standard form in use in
the State of Florida with the endorsements requested by Purchaser
(such endorsements to be issued at Purchaser's expense), insuring
good and indefeasible fee simple title to the Real Property
(including all required access, cart path, irrigation drainage and
utility easements) in the Purchaser in the amount of $18,000,000.00,
and containing no exceptions except the Permitted Exceptions and the
standard printed exceptions therein, as modified by any Objections
which Sellers elect to cure pursuant to SECTION 3.2."
3. SCHEDULE 4.2(k). SCHEDULE 4.2(k) to the Agreement shall be
deleted and replaced with SCHEDULE 4.2(k) attached hereto.
4. MEMBERSHIP REFUNDS. Sellers agree to give Purchaser a credit
at Closing in an amount equal to the total amount of any Club refund
obligations to Members, including but not limited to the refund obligations
set forth on Schedule 7.2(k).
5. CLOSING DATE. Section 1.1(p) is hereby amended to state that
the Closing Date shall be October 1, 2002.
6. NO OTHER AMENDMENTS. Except as set forth herein, there are no
other modifications or amendments to the Agreement.
7. DEFINITIONS. All capitalized terms used but not defined herein
shall have the meaning set forth in the Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed as of the date and year first written above.
Signed, sealed and delivered
in the presence of: SELLERS:
[ executed signature ]
------------------------------ WESTON HILLS COUNTRY CLUB
LIMITED PARTNERSHIP, a
Delaware limited partnership
------------------------------
By: WHCC INC., an Illinois
corporation, general
partner
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
(Print or Type Name)
Title: President
Signed, sealed and delivered
in the presence of:
[ executed signature ]
------------------------------ ARVIDA/JMB PARTNERS, a Florida
general partnership
------------------------------
By: ARVIDA/JMB MANAGERS
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
(Print or Type Name)
Title: Vice President
Signed, sealed and delivered
in the presence of: PURCHASER:
------------------------------ HILLWOOD ENTERPRISES, L.P., a
Texas limited partnership
------------------------------
By: AHB, INC., A TEXAS
CORPORATION, ITS GENERAL
PARTNER
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Secretary