Exhibit 10.2
FIRST AMENDMENT TO PURCHASE AGREEMENT,
FIFTH AMENDMENT TO LEASE AGREEMENT
(BONAVENTURE GOLF CLUB)
AND SETTLEMENT AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT, FIFTH AMENDMENT TO
LEASE AGREEMENT (BONAVENTURE GOLF CLUB) AND SETTLEMENT AGREEMENT (this
"AGREEMENT"), is made this 30th day of July, 2001, by and among GOLF TRUST OF
AMERICA, L.P., a Delaware limited partnership ("SELLER"), LEGENDS GOLF HOLDING,
LLC, a Delaware limited liability company ("BUYER"), LEGENDS AT BONAVENTURE,
INC., a Florida corporation ("TENANT"), XXXXX XXXXX, an individual ("XXXXX
XXXXX"), and XXXXX XXXXX, an individual ("XXXXX XXXXX").
RECITALS
A. Seller and Buyer have entered into that certain Purchase
Agreement dated February 14, 2001 (as amended hereby, the "PURCHASE AGREEMENT"),
which Purchase Agreement provides for, among other things, the sale by Seller to
Buyer of certain golf courses more particularly described in the Purchase
Agreement. Unless otherwise defined in this Agreement, all initially capitalized
terms used in this Agreement without definition shall have the respective
meanings given such terms in the Purchase Agreement.
B. In accordance with the terms of the Purchase Agreement,
Seller has sold certain of the Parcels to third-party purchasers, and as of the
date of this Agreement, the only Parcels that have not been sold to third-party
purchasers and/or are subject to a pending sale to a third-party purchaser are
the following: The Legends Resort (Parkland, Heathland and Moorland), Heritage,
Oyster Bay, Tiburon and Bonaventure.
C. Buyer has previously delivered to Seller various written
notices of its intention to terminate its obligation to purchase the Bonaventure
Parcel pursuant to the due diligence provisions of the Purchase Agreement, and
Seller has (i) disputed Buyer's purported right to terminate such obligation to
purchase the Bonaventure Parcel and (ii) asserted that the conditions and other
matters specified by Buyer as reasons for its termination of such purchase
obligation do not give rise to the termination right claimed by Buyer. The
dispute relating to Buyer's alleged right to terminate its obligation to
purchase the Bonaventure Parcel shall be referred to in this Agreement as the
"DISPUTE". The parties have been unable to resolve the Dispute as of the date of
this Agreement.
D. Seller and Buyer desire to immediately close the
acquisition of The Legends Resort (Parkland, Heathland and Moorland), Heritage,
Oyster Bay and Tiburon Parcels (collectively, the "SALE PARCELS"), subject to
the Dispute regarding the Buyer's obligations with respect to the Bonaventure
Parcel, and Seller and Buyer, respectively, are willing to close the sale and
purchase of such Sale Parcels immediately (the "SALE PARCELS CLOSING") only on
the
condition that Seller and Buyer agree upon a dispute resolution procedure to
resolve the Dispute regarding the Bonaventure Parcel and the parties hereto
reach certain other agreements set forth hereinbelow.
E. Tenant is an Affiliate of the Buyer and is the "tenant" of
the Bonaventure Parcel pursuant to the Lease dated as of January 1, 1998, by and
between Seller, as landlord, and Emerald Dunes - Bonaventure, Inc., as tenant
(as assigned and/or amended or modified, collectively, the "LEASE"), which Lease
pertains to the lease of the Bonaventure Parcel by Seller to Tenant. Tenant is
executing this Agreement as necessary to document certain modifications to the
Lease. Tenant's execution of this Agreement and the modifications to the Lease
set forth hereinbelow are required as a condition to Seller's agreement to
execute this Agreement and close the sale of the Sale Parcels immediately and
prior to the final resolution of the Dispute.
F. Xxxxx Xxxxx and Xxxxx Xxxxx are each Affiliates of Buyer
and Tenant and are executing this Agreement as necessary to set forth their
agreement to execute and deliver certain guarantees of the obligations and
liabilities of Buyer and Tenant under this Agreement, the Purchase Agreement (as
amended hereby), the Lease (as amended hereby) and the Bonaventure Transition
Agreement (as defined in SECTION 6 of this Agreement below). Tenant's execution
of this Agreement is required as a condition to Seller's agreement to execute
this Agreement and close the sale of the Sale Parcels immediately and prior to
the final resolution of the Dispute.
NOW, THEREFORE, in consideration of the mutual recitals set
forth above, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each party hereto, the parties
hereby agree as follows:
1. RECITALS, WARRANTIES AND REPRESENTATIONS. Each party hereto
hereby makes the following representations and warranties to the other parties
all of which are material and are made to induce such other parties to enter
into this Agreement.
1.1. VIOLATION OF OTHER AGREEMENTS. The execution and delivery of this
Agreement and the performance and observance of the covenants to be
performed and observed hereunder do not violate or constitute a default
in any agreement to which the representing party is a party.
1.2. ORGANIZATION; AUTHORITY; POWER. As applicable, the representing
party is (a) duly formed and validly existing and in good standing
under the laws of the State of its formation or incorporation, as the
case may be; and (b) has full power, legal capacity and authority to
execute and deliver this Agreement and the documents contemplated
hereby.
1.3. ENFORCEABILITY OF AGREEMENT. The representing party is knowingly
and voluntarily entering into this Agreement and hereby acknowledges
the receipt of good and valuable consideration therefor. This Agreement
has been duly authorized, executed and delivered by such representing
party and is enforceable against such representing party in accordance
with its terms.
2. MODIFICATION OF PURCHASE AGREEMENT. The Purchase Agreement
is hereby amended and modified as follows:
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2.1. Seller and Buyer hereby agree to close the purchase and sale of
the Sale Parcels as of the date hereof (and prior to the resolution of
the Dispute and/or the closing of the sale of the Bonaventure Parcel);
PROVIDED THAT, the Sale Parcels Closing shall not in any event modify
or affect either the Seller's or the Buyer's rights and/or obligations
with respect to the Bonaventure Parcel. Subject to the terms,
provisions and limitations set forth in SECTION 2.2 below, each of
Seller and Buyer hereby reserves its rights and remedies arising under
the Purchase Agreement against the other party, including, without
limitation, with respect to the Bonaventure Parcel (including, with
respect to Seller, Seller's right to enforce Buyer's obligation to
purchase the Bonaventure Parcel in accordance with the terms and
provisions of the Purchase Agreement in the event that the Court and/or
Master-in-Equity (as such terms are defined in SECTION 2.2(A) below)
determine(s) that the Buyer did not have the right to terminate its
obligation to purchase such Bonaventure Parcel and, with respect to
Buyer, Buyer's right to terminate its obligation to purchase the
Bonaventure Parcel in the event that the Court and/or Master-in-Equity
determine(s) that Buyer did have the right to terminate its obligation
to purchase the Bonaventure Parcel). In furtherance and not in
limitation of the foregoing, Seller and Buyer agree that (i) this
Agreement shall not in any respect be deemed to modify or affect the
terms and provisions of Section 4.10(f) or either party's ability to
pursue claims in respect thereof, and (ii) notwithstanding the
provisions of Section 4.10(d)(i) of the Purchase Agreement, the Buyer
and its Affiliates shall not be deemed, in any respect, to release, as
of the date of the Sale Parcels Closing, the Seller Released Parties
for costs, losses, liabilities, damages, expenses, actions, or causes
of action arising from or relating to the Bonaventure Parcel (it being
acknowledged and agreed by Seller and Buyer, however, that such
releases pertaining to the Bonaventure Parcel shall become effective
upon the closing of the sale of the Bonaventure Parcel to Buyer or a
third-party, as provided in Section 4.10(d)). All references in the
Purchase Agreement to the "Closing" shall mean, with respect to the
Sale Parcels, the Sale Parcels Closing, and with respect to the
Bonaventure Parcel, the closing of the sale of the Bonaventure Parcel
to Buyer. All references in the Purchase Agreement to Closing Date
shall mean, with respect to the Sale Parcels, the date upon which the
Sale Parcels Closing occurs, and with respect to the Bonaventure
Parcel, the date upon which the closing of the sale of the Bonaventure
Parcel to Buyer occurs. Notwithstanding anything to the contrary stated
or implied in the Purchase Agreement, (a) the outside date for the
closing of the purchase and sale of the Bonaventure Parcel is hereby
extended to the date that is thirty (30) days after the decision is
rendered by the Court and/or Master-in-Equity in the Declaratory Relief
Action (as defined in SECTION 2.2(A) below), (b) notwithstanding the
potential later closing of the sale of the Bonaventure Parcel, the
9,259 Class B OP Units described in Section 4.11 of the Purchase
Agreement will be transferred by Buyer or its Affiliate, as the case
may be, to Seller concurrently with (and as a part of) the Sale Parcels
Closing, (c) notwithstanding the potential later closing of the sale of
the Bonaventure Parcel, the Note and guaranty thereof pertaining to the
Bonaventure Parcel shall be cancelled concurrently with the Sale
Parcels Closing (as contemplated by Section 2.1(e) of the Purchase
Agreement), and (d) all terms and/or provisions of Section 8.4 of the
Purchase Agreement modifying and/or relating to the Lease (including,
without limitation, those terms and provisions setting an outside
termination date for the Lease and/or abating or modifying the rental
obligations of the Tenant under the Lease) are hereby terminated in
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their entirety effective as of August 1, 2001. If Buyer purchases the
Bonaventure Parcel, such purchase and sale shall be consummated
pursuant to and in accordance with the terms and provisions of the
Purchase Agreement (including, without limitation, the terms and
provisions of Sections 3 (to the extent applicable), 4 (to the extent
applicable), 5 and 6 of the Purchase Agreement), but only to the extent
that any such terms and provisions are applicable to the sale of the
Bonaventure Parcel, it being acknowledged and agreed by Buyer and
Seller that certain terms and provisions of the Purchase Agreement
(such as the credit of the OP Units Amounts against the Purchase Price)
will not be applicable to the Bonaventure Parcel sale as a result of
the previous Sale Parcels Closing.
2.2. Notwithstanding anything to the contrary stated or implied in the
Purchase Agreement, at law or in equity, Seller and Buyer hereby agree
to resolve the Dispute in accordance with the following dispute
resolution procedure:
(a) At any time after the Sale Parcels Closing, but subject to the
limitations, restrictions, terms and provisions of this Agreement
(including, without limitation, the agreement of the parties to
refer the Dispute to the exclusive jurisdiction of the
Master-in-Equity and the other agreements of the parties set forth
in this SECTION 2.2 below), either party may file an action (the
"DECLARATORY RELIEF ACTION") for declaratory judgment regarding
the Disputed Issues (as defined in SECTION 2.2(C) below). The
Dispute shall be subject to, generally and unconditionally, the
exclusive jurisdiction of the Master-in-Equity (the
"MASTER-IN-EQUITY") sitting for the circuit court in Charleston
County, South Carolina; PROVIDED THAT, if the Master-in-Equity
does not agree to hear the Dispute or the Dispute and/or
Declaratory Relief Action is not filed with or cannot be heard by
the Master-in-Equity for any other reason, then the Declaratory
Relief Action shall be filed in, and the Dispute shall be heard
by, the circuit court for Charleston County, South Carolina (the
"COURT"). Seller and Buyer each hereby covenants and agrees to
execute and deliver all documents, and to take all actions,
reasonably necessary in order to submit the Dispute to the
exclusive jurisdiction of the Master-in-Equity. Specifically and
without limiting the obligations of the Seller and Buyer pursuant
to the foregoing, each of Seller and Buyer has executed and
delivered two (2) counterparts of a consent order in the form of
EXHIBIT A attached hereto referring the Dispute to the
Master-in-Equity (each a "REFERENCE ORDER"). One fully executed
original Reference Order has been delivered to Seller, and the
other fully executed original Reference Order has been delivered
to Buyer. At any time concurrently with or after the filing of the
Declaratory Relief Action, either party may write into the
Reference Order held by such party the then current date and civil
action number of the Declaratory Relief Action, and such party may
then file such Reference Order with the Court. Each party hereto
irrevocably and unconditionally hereby consents to the entry of
such data on such Reference Order and the filing of such Reference
Order concurrently with or at any time after the filing of a
Declaratory Relief Action. Neither party hereto shall challenge
the jurisdiction of the Court or the Master-in-Equity, nor shall
any party hereto take any action, or file any motion, requiring or
seeking the removal of the Dispute (or the Declaratory Relief
Action relating thereto) from the Court or the Master-in-Equity,
and in addition to and not in limitation of the foregoing, each
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party hereto hereby waives any defense of forum non conveniens and
irrevocably agrees to be bound by any judgment rendered by the
Master-in-Equity or the Court, as the case may be, in connection
with the Dispute.
(b) Seller and Buyer shall use their respective best efforts to
cause the Dispute to be heard, and the trial on the Dispute to be
held, at the earliest practicable date after the date of this
Agreement and, in any event, within one hundred twenty (120)
calendar days after the Declaratory Relief Action is filed, and
Seller and Buyer each hereby covenants and agrees to execute and
deliver all documents, and to take all actions, reasonably
necessary in order to expedite the resolution of the Dispute by
the Master-in-Equity or the Court, as the case may be.
Specifically and without limiting the obligations of the parties
pursuant to the foregoing, each of Seller and Buyer has executed
and delivered two (2) counterparts of a Consent Scheduling Order
in the form of EXHIBIT B attached hereto (the "CONSENT SCHEDULING
ORDER"). One fully executed original of the Consent Scheduling
Order has been delivered to Seller, and the other fully executed
original of the Consent Scheduling Order has been delivered to
Buyer. At any time concurrently with or after the filing of the
Declaratory Relief Action, either party may write into the Consent
Scheduling Order held by such party the then current date and
civil action number of the Declaratory Relief Action, and such
party may then file such Consent Scheduling Order with the Court
and/or the Master-in-Equity. Each party hereto irrevocably and
unconditionally hereby consents to the entry of such data on such
Consent Scheduling Order and the filing of such Consent Scheduling
Order concurrently with or at any time after the filing of a
Declaratory Relief Action. The parties hereby covenant and agree
to adhere to the deadlines set forth in the Consent Scheduling
Order if executed and entered by the Court or the
Master-in-Equity, as the case may be. Once a hearing date or dates
is/are set by the Master-in-Equity or the Court for the
Declaratory Relief Action, neither Seller nor Buyer shall request
an extension or a postponement of such date(s), nor shall Seller
or Buyer move or otherwise petition the Master-in-Equity or the
Court to lengthen any of the deadlines set forth in the Consent
Scheduling Order without the express written consent of the other
party. Seller and Buyer hereby agree to cooperate in good faith
with one another in order to meet and comply with the time
requirements set forth herein and in the Consent Scheduling Order,
and Seller and Buyer hereby covenant and agree to serve all
document production requests, deposition requests, interrogatories
and other such requests in connection with their discovery
endeavors in good faith and in a timely manner such that the
deadlines set forth herein and in the Consent Scheduling Order
will be met. In addition to the foregoing, Seller and Buyer hereby
covenant and agree that (i) any and all written discovery requests
(such as, for example, interrogatories and document production
requests) shall be served by the covenanting party upon the
Person(s) asked to respond thereto in a good faith and timely
manner and, in any event, sufficiently in advance of the discovery
deadline set forth in Paragraph 2 of the Consent Scheduling Order
to allow such responding Person a reasonable period of time to
respond to the discovery request, and (ii) depositions shall be
scheduled, in a good faith and timely manner, to allow deponents a
reasonable opportunity to prepare for such deposition
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following review of written discovery productions by the deposing
party. Seller and Buyer each hereby stipulates that the
hearing/trial will not exceed three (3) days in the aggregate;
PROVIDED THAT, each of Seller and Buyer will be given equal time
to present its case and/or defense within said three (3) day
period (I.E., Seller will be given one and one-half days to
present its case and/or defense and Buyer will be given one and
one-half days to present its case and/or defense). Seller and
Buyer each hereby recognizes and agrees that a quick and timely
judicial resolution of the Dispute is of material benefit to each
party hereto, and each party would not enter into this Agreement
but for the provisions of this SECTION 2.2(B) that sets forth a
procedure (and certain agreements that provide) for a quick and
timely judicial resolution of the Dispute. If the resolution of
the Dispute and/or the decision of the Master-in-Equity or the
Court is delayed beyond the date (the "OUTSIDE DECISION DATE")
which is one-hundred and twenty (120) days after the filing of the
Declaratory Relief Action as a result of a party's failure to
comply with the Consent Scheduling Order or a party's breach of
any other term or provision of this SECTION 2.2 (including,
without limitation, a party's appeal of or challenge to the
Master-in-Equity's or Court's decision or a party's request to the
Master-in-Equity or Court to reconsider or amend its decision), as
determined by the Master-in-Equity or Court, then the other party
will suffer significant economic damage and harm that cannot be
easily quantified and, as a result thereof, the failing or
breaching party shall pay to the non-failing or non-breaching
party, as liquidated damages, the sum of $5,000 per day for each
calendar day that the resolution of the Dispute (and/or the
decision of the Master-in-Equity or Court) is delayed beyond the
Outside Decision Date as a result of such failing or breaching
party's acts or omissions, as determined by the Master-in-Equity
or the Court, as the case may be. IT IS HEREBY AGREED BY SELLER
AND BUYER THAT IT WOULD BE IMPRACTICABLE AND EXTREMELY DIFFICULT
TO FIX THE ACTUAL DAMAGE TO THE NON-FAILING OR NON-BREACHING PARTY
SHOULD THE DECISION ON THE DISPUTE (AND/OR THE MASTER-IN-EQUITY'S
OR THE COURT'S DECISION) BE DELAYED ON ACCOUNT OF THE ACTS OR
OMISSIONS OF THE OTHER PARTY AS AFORESAID. THE LIQUIDATED DAMAGES
PROVIDED FOR HEREIN REPRESENT THE PARTIES' REASONABLE ESTIMATE OF
THE ACTUAL DAMAGES THAT THE NON-FAILING OR NON-BREACHING PARTY
WILL INCUR IF THE DECISION REGARDING THE DISPUTE (AND/OR THE
MASTER-IN-EQUITY'S OR COURT'S DECISION) IS DELAYED AND SUCH
LIQUIDATED DAMAGES DO NOT CONSTITUTE A PENALTY. In addition to and
not in limitation of a non-failing or non-breaching party's right
to recover per diem liquidated damages for any delays described
above, if the Buyer's failure to comply with the Consent
Scheduling Order or the Buyer's breach of any other term or
provision of this SECTION 2.2, as determined by the
Master-in-Equity or Court, causes (in the determination of the
Master-in-Equity or Court) an aggregate of forty-five (45) days of
delay to the resolution of the Dispute and/or the
Master-in-Equity's or Court's decision (which forty-five (45) day
delay accrues entirely from and after the Outside Decision Date),
then at any time on or after the first day following the
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forty-fifth (45th) day of delay, Seller shall also be permitted to
immediately terminate this Agreement, the Purchase Agreement and
the Lease (without the prior consent or approval of any Person,
including the Master-in-Equity or the Court), in which event
Seller may, in its sole and absolute discretion, elect to continue
the Declaratory Relief Action and, if Seller prevails in the
Declaratory Relief Action and the Master-in-Equity or the Court
rules that Buyer did not have the right to terminate its
obligation to purchase the Bonaventure Parcel pursuant to the
Purchase Agreement, then Seller shall be entitled to the
$3,000,000 liquidated damages provided for in SECTION 2.4 of this
Agreement below (notwithstanding its previous termination of this
Agreement).
(c) The issues before the Court (Master-in-Equity) shall be
limited to the following (collectively, the "DISPUTED ISSUES"):
(1) whether or not Buyer has the right to terminate its obligation
to purchase the Bonaventure Parcel pursuant to the terms and
provisions of the Purchase Agreement on account of the Declaration
of Covenant Running with the Land (the "CC&RS") dated February 28,
1975 and recorded in the Official Records of Broward County,
Florida in Book 125, Page 173 as Instrument No. 75-36519 (the
"TITLE ISSUE"), and (2) whether or not Buyer has the right to
terminate its obligation to purchase the Bonaventure Parcel
pursuant to the terms and provisions of the Purchase Agreement on
account of the environmental condition of the Bonaventure Parcel,
as described in the March 6, 2001 correspondence from Buyer to
Seller and/or subsequent correspondence between the Seller and
Buyer (and/or their respective legal counsel and other
consultants) regarding this subject (the "ENVIRONMENTAL ISSUE").
Specifically and without limiting the foregoing, each of Seller
and Buyer has executed two (2) counterparts of a consent order in
the form of EXHIBIT C attached hereto (the "DISPUTED ISSUES
CONSENT") limiting and narrowing the Disputed Issues as provided
hereinabove. One fully executed original of the Disputed Issues
Consent has been delivered to Seller, and the other fully executed
original of the Disputed Issues Consent has been delivered to
Buyer. At any time concurrently with or after the filing of the
Declaratory Relief Action, either party may write into the
Disputed Issues Consent held by such party the then current date
and civil action number of the Declaratory Relief Action, and such
party may then file such Disputed Issues Consent with the Court
and/or Master-in-Equity. Each party hereto irrevocably and
unconditionally hereby consents to the entry of such data on such
Disputed Issues Consent and to the filing of such Disputed Issues
Consent concurrently with or after the filing of the Declaratory
Relief Action.
(d) The decision rendered by the Master-in-Equity shall be final
and binding on the parties, and said decision may not be appealed
or otherwise challenged by Seller, Buyer or any of their
respective Affiliates, nor shall Seller, Buyer or any of their
Affiliates request the Master-in-Equity or Court to reconsider or
amend its decision.
(e) If the Master-in-Equity or Court, as the case may be,
determines that Buyer does not have the right to terminate its
obligation to purchase the Bonaventure Parcel, then Buyer shall be
obligated to close the purchase of the
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Bonaventure Parcel within thirty (30) days following the date that
the decision of the Master-in-Equity or Court is rendered. In such
event, Seller shall have the right to specifically enforce Buyer's
obligation to purchase the Bonaventure Parcel. If Buyer fails to
consummate the purchase of the Bonaventure Parcel within said
thirty (30) day period for any reason other than the default of
the Seller, then Seller may (in its sole and absolute discretion)
unilaterally terminate the Purchase Agreement and require that the
Buyer immediately pay to Seller the sum of $3,000,000 as
liquidated damages for its failure to close said acquisition (all
in accordance with the terms and provisions of this Agreement
below).
(f) Notwithstanding anything to the contrary stated in the
Purchase Agreement, each party shall bear its own attorneys' fees
and other fees, costs and expenses incurred in connection with the
Declaratory Relief Action.
(g) Buyer, Tenant, Xxxxx Xxxxx and Xxxxx Xxxxx each has executed
and delivered to Seller and Nexsen, Pruet, Jacobs, Xxxxxxx &
Xxxxxxxx, LLC, concurrently with the execution and delivery of
this Agreement, a Conflict Waiver Letter in the form of EXHIBIT D
attached hereto permitting Nexsen, Pruet, Jacobs, Xxxxxxx &
Xxxxxxxx, LLC to represent Seller in connection with the
negotiation of this Agreement and the Dispute and the Declaratory
Relief Action filed in the Court hereunder.
2.3 Seller hereby agrees that, if the sale of the Bonaventure Parcel to
Buyer or its Affiliate occurs (whether as a result of the decision of
the Master-in-Equity or the Court in the Declaratory Relief Action
and/or the agreement of the parties otherwise), then at the request of
the Buyer as provided for in Section 2.1(c) of the Purchase Agreement,
upon the closing of the sale of the Bonaventure Parcel, Seller shall
provide to Buyer (or its Affiliate who acquires the Bonaventure Parcel)
a Purchase Money Loan (in a principal amount up to $5,000,000 as
provided in the Purchase Agreement) on the terms (and only upon
satisfaction of the conditions) set forth in Section 2.1(c) of the
Purchase Agreement (including, without limitation, (i) the delivery to
Seller of second mortgage liens against the Bonaventure Parcel and each
of the Sale Parcels [which may require the further delivery of
guarantees of the Purchase Money Loan from the entities that own such
Sale Parcels], (ii) the delivery of all guarantees, opinions and other
loan documents required by said Section 2.1(c) of the Purchase
Agreement, and (iii) the satisfaction of the maximum first
loan-to-purchase price ratio requirements set forth in said Section
2.1(c) of the Purchase Agreement).
2.4 Notwithstanding anything to the contrary stated or implied in the
Purchase Agreement, if the Master-in-Equity or Court determines that
Buyer is obligated to purchase the Bonaventure Parcel or the parties
otherwise hereinafter mutually agree to consummate the sale of the
Bonaventure Parcel to Buyer, and Buyer defaults in performing its
obligation to purchase the Bonaventure Parcel, or otherwise defaults in
performing any of its obligations under the Purchase Agreement in any
material respect, and Buyer fails to cure any such default within five
(5) business days after notice thereof from Seller, then Seller may
elect either to (i) seek specific performance of Buyer's obligation to
purchase the Bonaventure Parcel and/or perform its other obligations
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pursuant to the terms, provisions and conditions of the Purchase
Agreement, or (ii) terminate the Purchase Agreement and the Lease in
their entirety and receive and recover from Buyer (and/or any guarantor
of Buyer's obligations under the Purchase Agreement), as liquidated
damages hereunder, the sum of Three Million Dollars ($3,000,000).
EXCEPT AS OTHERWISE PROVIDED HEREINBELOW, THE $3,000,000 PAID TO OR
RETAINED BY SELLER HEREUNDER SHALL BE SELLER'S SOLE MONETARY REMEDY IF
BUYER DEFAULTS (AS PROVIDED ABOVE) AND THE PURCHASE AND SALE OF THE
BONAVENTURE PARCEL FAILS TO CLOSE THEREBY. THE PARTIES HERETO EXPRESSLY
AGREE AND ACKNOWLEDGE THAT SELLER'S ACTUAL MONETARY DAMAGES IN THE
EVENT OF A DEFAULT BY BUYER WOULD BE EXTREMELY DIFFICULT OR
IMPRACTICABLE TO ASCERTAIN AND THAT THE LIQUIDATED DAMAGES STATED ABOVE
REPRESENTS THE PARTIES' REASONABLE ESTIMATE OF SUCH DAMAGES. THE
PAYMENT OF ANY SUCH AMOUNT BY BUYER TO SELLER AS LIQUIDATED DAMAGES IS
NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO SELLER. NOTWITHSTANDING THE FOREGOING PROVISIONS
OF THIS SECTION 2.4, THE PARTIES HERETO HEREBY AGREE THAT THIS
LIQUIDATED DAMAGES PROVISION IS NOT INTENDED AND SHOULD NOT BE DEEMED
OR CONSTRUED TO LIMIT IN ANY WAY ANY OF THE OBLIGATIONS OR LIABILITIES
OF TENANT UNDER THE LEASE (AS MODIFIED HEREBY) OR THE BONAVENTURE
TRANSITION AGREEMENT.
2.5 Notwithstanding the initiation and pendency of a Declaratory Relief
Action, and notwithstanding anything to the contrary stated in the
Purchase Agreement (including, without limitation, SECTION 8.3
thereof), if at any time prior to the closing of the sale of the
Bonaventure Parcel to Buyer, Seller elects (in its sole and absolute
discretion) to sell the Bonaventure Parcel to a third-party purchaser
(whether or not the net purchase price is less than or more than Twelve
Million Five Hundred Thousand Dollars ($12,500,000)), then Seller shall
have the right to sell the Bonaventure Parcel to such third-party
purchaser on any terms and conditions without any prior notice to or
approval or consent of Buyer. In the event of any such sale of the
Bonaventure Parcel to a third-party purchaser, (a) if the Declaratory
Relief Action is then pending, the Seller and Buyer shall mutually
dismiss the Declaratory Relief Action (and such parties shall execute
and deliver, and hereby unconditionally and irrevocably agree to
execute and deliver, all instruments and documents necessary to
effectuate such dismissal), (b) Buyer and/or Tenant shall execute and
deliver, and hereby unconditionally and irrevocably agree to execute
and deliver, all instruments and documents (including, without
limitation, the Bonaventure Transition Agreement) that such Person(s)
would be otherwise obligated to execute and deliver in connection with
a Third-Party Sale pursuant to Section 8.3 of the Purchase Agreement,
(c) the Lease shall be terminated (in accordance with the terms and
provisions of SECTION 3 below), and (d) the Purchase Agreement shall be
terminated. In such event, except as may be otherwise expressly
provided in the Lease and/or Bonaventure Transition Agreement, Buyer
shall be released from any obligation and/or liability to acquire the
Bonaventure Parcel, and Seller shall have no obligation or liability to
Buyer with respect to the sale of such Bonaventure Parcel (including,
without limiting
9
the foregoing, any obligation to pay a break-up fee or other
compensation in connection with the sale of the Bonaventure Party to
the third-party purchaser).
SECTION 3. MODIFICATION OF LEASE. The Lease is hereby modified
as follows:
3.1 Notwithstanding anything to the contrary stated or implied in the
Lease, the Lease Term shall expire upon the earliest to occur of (a)
the date that the Lease is terminated by Seller upon the occurrence of
a breach or default by Tenant thereunder that is not cured within any
applicable cure period, (b) the date of closing of the sale of the
Bonaventure Parcel to a third-party purchaser, (c) the closing of the
sale of the Bonaventure Parcel to Buyer or its Affiliate (whether
pursuant to an order of the Master-in-Equity or the Court pursuant to
the provisions of SECTION 2.2 above and/or the voluntary agreement of
the parties), and (d) the date which is thirty (30) days after the
Master-in-Equity or Court, as the case may be, renders its decision
regarding the Dispute.
3.2. Notwithstanding anything to the contrary stated or implied in the
Lease, the "Annual Base Rent" due and payable under the Lease from and
after August 1, 2001 until the expiration of the Lease Term (as
provided in SECTION 3.1 above) shall equal $1,374,996 and the monthly
installment of such Base Rent shall equal $114,583 per month.
3.3. Notwithstanding anything to the contrary stated or implied in the
Lease, if the Buyer prevails in the Declaratory Relief Action described
in SECTION 2.2 of this Agreement above, and as a result thereof the
Lease is terminated, Tenant vacates the Bonaventure Parcel and Buyer
does not purchase the Bonaventure Parcel, then within thirty (30) days
after Tenant vacates the Bonaventure Parcel and surrenders the
Bonaventure Parcel to Seller, Seller shall reimburse to Tenant the
amount (if any) by which (x) the aggregate Base Rent actually paid by
Tenant to Seller for the Bonaventure Parcel for the period accruing
from and after August 1, 2001 through and including the effective date
of termination of the Lease, exceeds (y) the aggregate EBITDARM
(Earnings Before Interest, Taxes, Depreciation, Amortization, Rent and
Management Fees), calculated on a cash basis, derived by Tenant from
the Bonaventure Parcel and accruing during the period commencing on
(and including) August 1, 2001 through and including the effective date
of termination of the Lease.
3.4. Except as expressly modified by this SECTION 3 and/or by any
previous amendments and/or modifications to the Lease that do not
conflict with the terms and provisions of this SECTION 3, the Lease
shall remain in full force and effect and unamended and unmodified.
SECTION 4. LEASE TERMINATION. Concurrently with the execution
and delivery of this Agreement, and as a condition precedent to the
effectiveness of this Agreement and the Sale Parcels Closing, Tenant has
executed and delivered to Seller originals of the documents set forth on EXHIBIT
E attached hereto (collectively, the "LEASE TERMINATION DOCUMENTS"). The Lease
Termination Documents shall be held by Seller, and the same shall not be deemed
delivered to Seller (or any other Person) or filed or recorded by Seller, until
the expiration of the Lease Term (as described in SECTION 3.1 above).
Immediately upon the expiration of the Lease
10
Term, the Lease Termination Documents shall be deemed to be fully delivered to
Seller, and Seller shall be permitted, without the consent or approval of Buyer,
Tenant or any of their respective Affiliates, to insert in each of the documents
all information necessary to complete and/or file/record the particular document
(including, without limitation, dates such as the effective date of termination,
case numbers and other such information) and file and/or record said Lease
Termination Documents in any manner as the Seller may desire in order to
accomplish and evidence the termination of the Lease. Tenant (on behalf of
itself and its Affiliates) hereby irrevocably and unconditionally consents to
the entry of any such data by Seller on the Lease Termination Documents and the
filing and/or recording of any such Lease Termination Documents upon the
expiration of the Lease Term.
SECTION 5. YOUNG GUARANTY. Concurrently with the execution and
delivery of this Agreement, and as a condition precedent to the effectiveness of
this Agreement and the Sale Parcels Closing, each of Xxxxx Xxxxx and Xxxxx Xxxxx
shall execute and deliver to Seller an original Guaranty in the form of
EXHIBIT F attached hereto.
SECTION 6. BONAVENTURE TRANSITION AGREEMENT. Attached hereto
as EXHIBIT G is a final form (subject to, however, the later addition of the
Exhibits thereto) of the Transition Agreement for the Bonaventure Parcel (the
"BONAVENTURE TRANSITION AGREEMENT") in the event that Seller elects to sell the
Bonaventure Parcel to a third-party purchaser and Seller requires Buyer to
execute a Transition Agreement in connection therewith. Attached hereto as
EXHIBIT H is a settlement statement pertaining to the Bonaventure Parcel, which
settlement statement sets forth the prorations and other accounting adjustments
that would be made between (x) Buyer and a potential third-party purchaser if
the closing of the sale of the Bonaventure Parcel to such third-party purchaser
occurred on and as of July 26, 2001 or (y) Seller and Buyer in the event that
the Lease was terminated on and as of July 26, 2001, as the case may be.
Notwithstanding the foregoing to the contrary, the parties hereto acknowledge
and agree that the attached settlement statement only sets forth the prorations
and other accounting adjustments pertaining to the Bonaventure Parcel as of July
26, 2001 and that such prorations and other accounting adjustments shall be
subject to adjustment in order to reflect accruals and payments occurring after
July 26, 2001 and prior to the actual closing of the sale of the Bonaventure
Parcel to a third-party purchaser or the termination of the Lease, as the case
may be.
SECTION 7. EFFECT OF AGREEMENT. Except as expressly amended by
this Agreement (and/or any previous amendments and/or modifications thereof),
the Purchase Agreement and the Lease each remains in full force and effect,
without amendment or modification.
SECTION 8. GOVERNING LAW. The terms and provisions of this
Agreement relating to the Purchase Agreement (and all terms and provisions of
this Agreement other than those relating to and/or amending or modifying the
Lease) shall be governed by and construed in accordance with the laws of the
State of South Carolina. The terms and provisions of this Agreement relating to
the Lease shall be governed by and construed in accordance with the laws of the
State of Florida.
SECTION 9. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF OR
11
RELATING TO THIS AGREEMENT OR ANY RIGHT OR OBLIGATION HEREUNDER SHALL BE BROUGHT
IN THE CIRCUIT COURT FOR CHARLESTON COUNTY, SOUTH CAROLINA AND SHALL BE REFERRED
TO THE MASTER-IN-EQUITY SITTING FOR SUCH COURT, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT EACH PARTY HERETO HEREBY ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION
OF THE AFORESAID CIRCUIT COURT AND MASTER-IN-EQUITY AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
IN CONNECTION WITH THIS AGREEMENT OR ANY SUCH RIGHT OR OBLIGATION. Buyer,
Tenant, Xxxxx Xxxxx and Xxxxx Xxxxx each hereby agrees that service of all
process in any such proceeding in such court may be made by personal delivery
(including overnight delivery) or registered or certified mail, return receipt
requested, to any such Person at the following address:
Xxxxxxx Xxxx, Esquire
Parker, Poe, Xxxxx & Xxxxxxxxx, L.L.P.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
With a copy to:
Xxxx X. Xxxx, Esquire
Xxxxxx & Bird LLP
Bank of America Plaza
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Seller hereby agrees that service of all process in any such proceeding in such
court may be made by personal delivery (including overnight delivery) or
registered or certified mail, return receipt requested, to any such person at
the following address:
Nexsen, Pruet, Jacobs, Xxxxxxx & Xxxxxxxx LLC
000 Xxxxxxx Xxxxxx, Xxxxx 000
Post Xxxxxx Xxx 000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Any such service to such party is hereby acknowledged by each party hereto to be
sufficient for personal jurisdiction in any action against such party in any
such court and to be otherwise effective and binding service in every respect.
Nothing herein shall affect the right to serve process in any other manner
permitted by law.
SECTION 10. WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE
RELATIONSHIP THAT IS BEING
12
ESTABLISHED. The scope of this waiver is intended to be all-encompassing of any
and all disputes that may be filed in any court and that relate to the subject
matter of this transaction, including, without limitation, contract claims, tort
claims, breach of duty claims and all other common law and statutory claims.
Each party hereto acknowledges that this waiver is a material inducement to
enter into a business relationship, that each has already relied on this waiver
in entering into this Agreement, and that each will continue to rely on this
waiver in their related future dealings. Each party hereto further warrants and
represents that it has reviewed this waiver with its legal counsel and that it
knowingly and voluntarily waives its jury trial rights following consultation
with such legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
OR ANY OF THE DOCUMENTS OR AGREEMENTS REFERENCED HEREIN. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the
court.
SECTION 11. SEVERABILITY. If any term, provision, covenant or
condition of this Agreement or any application thereof should be held by a court
of competent jurisdiction to be invalid, void or unenforceable, all terms,
provisions, covenants and conditions hereof and all applications thereof not
held invalid, void or unenforceable shall continue in full force and effect and
shall in no way be affected, impaired or invalidated thereby.
SECTION 12. SUCCESSORS AND ASSIGNS. The provisions of this
Agreement shall be binding upon and inure solely to the benefit of Seller,
Buyer, Tenant, Xxxxx Xxxxx and Xxxxx Xxxxx, and their respective heirs, legal
representatives, successors and assigns.
SECTION 13. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be an original but all of which
together shall constitute one agreement.
[SIGNATURES ON NEXT PAGE]
13
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
SELLER:
GOLF TRUST OF AMERICA, L.P.,
a Delaware limited partnership
By: GTA GP, Inc.,
a Maryland corporation,
its sole general partner
By: /s/ Xxxxxxx Xxxxxxx Xxxxx XX
----------------------------
Name: Xxxxxxx Xxxxxxx Xxxxx XX
----------------------------
Title: President
---------------------------
BUYER:
LEGENDS GOLF HOLDING, LLC,
a Delaware limited liability company
By: /s/ XXXXX X. XXXXX
-------------------------------
Name: XXXXX X. XXXXX
-------------------------------
Title: PRESIDENT
------------------------------
TENANT:
LEGENDS AT BONAVENTURE, INC.,
a Florida corporation
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
----------------------------
Title: President
----------------------------
XXXXX XXXXX:
XXXXX XXXXX,
an individual
/s/ Xxxxx X. Xxxxx
-------------------
14
XXXXX XXXXX:
XXXXX XXXXX,
an individual
/s/ XXXXX XXXXX
-------------------
15
EXHIBIT A
CONSENT TO JURISDICTION
STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS
) NINTH JUDICIAL CIRCUIT
COUNTY OF CHARLESTON ) CASE NO.: 01-CP-____
GOLF TRUST OF AMERICA, L.P.
)
PLAINTIFF, )
) CONSENT ORDER OF REFERENCE
vs. )
)
LEGENDS GOLF HOLDING, LLC,,
LEGENDS AT BONAVENTURE, INC., )
XXXXX XXXXX AND XXXXX XXXXX )
)
DEFENDANT.
It appears that the parties and their counsel wish to refer this case
with finality to The Xxxxxxxxx Xxxxx X. Xxxxx, Master-in-Equity for Charleston
County. Accordingly, upon the motion and consent of the parties, by and through
their undersigned counsel,
It is Ordered that this case be referred with finality to The Xxxxxxxxx
Xxxxx X. Xxxxx, the Master-in-Equity for Charleston County, to make findings of
facts and conclusions of law, and with authority to dispose of any and all
issues and enter a final judgment in the case.
So Ordered this ____ day of _______________, 2001.
_______________________________
Presiding Judge
Charleston, South Carolina
Exhibit A-1
WE CONSENT:
[SIGNATURE BLOCK]
Attorneys for Plaintiff Golf Trust of America, L.P.
Xxxxx X. Summer Jr., Esquire
Parker, Poe, Xxxxx & Xxxxxxxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attorneys for Defendants Legends Golf Holding, LLC
Exhibit A-2
EXHIBIT B
CONSENT SCHEDULING ORDER
STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS
) NINTH JUDICIAL CIRCUIT
COUNTY OF CHARLESTON ) CASE NO.: 01-CP-____
GOLF TRUST OF AMERICA, L.P. )
)
PLAINTIFF, )
) CONSENT SCHEDULING ORDER
vs. )
)
LEGENDS GOLF HOLDING, LLC,
LEGENDS AT BONAVENTURE, INC., )
XXXXX XXXXX AND XXXXX XXXXX )
)
DEFENDANTS. )
)
)
)
IT APPEARING TO THE COURT that the parties have reached an agreement
concerning the scheduling of this matter, the following scheduling order is
hereby established:
1. The parties shall name all of their expert witnesses on or before the date
which is 30 days after service of the Complaint.
2. Discovery shall be completed on or before the date which is 60 days after
service of the Complaint.
3. The case will be called for trial during the October term of court for the
Master-in-Equity with a trial date no later than the date which is 90 days after
service of the Complaint.
4. Any and all written discovery requests (such as, for example, interrogatories
and document production requests) shall be served by the parties upon the
person(s) asked to respond thereto in a good faith and timely manner and, in any
event, sufficiently in advance of the Discovery deadline set forth in Paragraph
2 to allow such responding person a reasonable period
Exhibits B-1
of time to respond to the discovery request, and depositions shall be scheduled,
in a good faith and timely manner, to allow deponents a reasonable opportunity
to prepare for such deposition following review of written discovery productions
by the deposing party.
5. The trial will not exceed three (3) days in the aggregate without the mutual
consent of the parties, and each party shall be granted one and one-half trial
days to present its case and/or defense.
6. This order may not be amended except by order of the Master-In-Equity.
IT IS SO ORDERED.
The Xxxxxxxxx Xxxxx X. Xxxxx
Master-In-Equity
, 2001.
---------------------------------------
Charleston, South Carolina
Exhibits B-2
WE CONSENT:
[SIGNATURE]
Attorneys for Plaintiff Golf Trust of America, L.P.
Xxxxx X. Summer Jr., Esquire
Parker, Poe, Xxxxx & Xxxxxxxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attorneys for Defendants Legends Golf Holding, LLC
Exhibits B-3
EXHIBIT C
CONSENT NARROWING ISSUES
STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS
) NINTH JUDICIAL CIRCUIT
COUNTY OF CHARLESTON ) CASE NO.: 01-CP-____
GOLF TRUST OF AMERICA, L.P.
)
PLAINTIFF, ) CONSENT ORDER DEFINING ISSUES FOR TRIAL
)
vs. )
)
LEGENDS GOLF HOLDING, LLC,
LEGENDS AT BONAVENTURE, INC., )
XXXXX XXXXX AND XXXXX XXXXX )
)
DEFENDANTS. )
)
)
)
The parties have reached an agreement as to the issues in dispute in
this case and have consented to narrow and limit the issues to be decided by
this Court. Accordingly, the sole and specific issues to be determined by the
Court in this case are as follows:
1 Whether or not Defendant has the right to terminate its obligation to
purchase the Bonaventure Parcel pursuant to the terms and provisions of
the Purchase Agreement on account of the Declaration of Covenant
Running with the Land dated February 28, 1975 and recorded in the
Official Records of Broward County, Florida in Book 125, Page 173 as
Instrument No. 75-36519; and
2. Whether or not Defendant has the right to terminate its obligation to
purchase the Bonaventure Parcel pursuant to the terms and provisions of
the Purchase Agreement on
Exhibit C-1
account of the environmental condition of the Bonaventure Parcel, as
described in the March 6, 2001 correspondence from Defendant to
Plaintiff and/or subsequent correspondence between Defendant and
Plaintiff (and/or their respective legal counsel and other consultants)
regarding this subject.
IT IS SO ORDERED this ______ day of _______, 2001.
The Xxxxxxxxx Xxxxx X. Xxxxx
Master-In-Equity
Charleston, South Carolina
Exhibits C-2
WE CONSENT:
[SIGNATURE BLOCK]
Attorneys for Plaintiff Golf Trust of America, L.P.
Xxxxx X. Summer Jr., Esquire
Parker, Poe, Xxxxx & Xxxxxxxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attorneys for Defendants Legends Golf Holding, LLC
Exhibits C-3
EXHIBIT D
CONFLICT WAIVER LETTER
XXXXXX XXXXX XXXXXX XXXXXXX & XXXXXXXX, LLC
July 27, 2001
VIA FACSIMILE (000) 000-0000 VIA FACSIMILE (000) 000-0000
--- --------- ----- -------- --- --------- ----- --------
Mr. W. Xxxxxxx Xxxxx, XX Xx. Xxxxx X. Xxxxx
President and CEO Mr. Xxxxx Xxxxx
Golf Trust of America, L.P. Legends Golf, Ltd.
14 North Xxxxx'x Wharf Legends Golf Holding, LLC
Xxxxxxxxxx, XX 00000 Legends at Bonaventure, Inc.
Legends National Golf Management, LLC
X.X. Xxx 0000
Xxxxxx Xxxxx, XX 00000-0000
Re: Dispute regarding Bonaventure Country Club ("Bonaventure")
Related to that certain Purchase Agreement (as amended,
the "Purchase Agreement") dated February 14, 2001 by and
between Golf Trust of America, L.P. ("GTA") and Legends
Golf Holding, LLC ("Buyer"); all terms capitalized herein
but not expressly defined herein shall be in the manner as
set forth in the Purchase Agreement; Xxxxx X. Xxxxx, Xxxxx
Xxxxx, Legends Golf, Ltd., Legends Golf Holding, LLC,
Legends at Bonaventure, Inc., Legends National Golf
Management, LLC, and their affiliates and principals,
shall collectively be referred to herein as the "Legends
Parties"
Gentlemen:
As you know, Xxxxxx Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx, LLC (the "FIRM")
has represented and is currently representing the Legends Group, Ltd., in a
number of employment and immigration matters, including the representation of
Legends Golf, Ltd. in the defense of a discrimination action. Also, this Firm
filed the organizational documentation for Legends National Golf Management, LLC
and has represented Xxxxx X. Xxxxx on matters related to certain hotel
acquisitions in the Myrtle Beach, South Carolina area. Additionally, the Firm
represents, on a regular basis, GTA in connection with general legal issues and
in connection with the acquisition, sale, operation, and disposition of golf
course properties. With respect to the preparation of documents and negotiation
of the transaction described in the Purchase Agreement, the Buyer is represented
by Xxxxxx & Bird, LLP and Parker, Poe, Xxxxx & Xxxxxxxxx, LLP and GTA is
represented by O'Melveny & Xxxxx, LLP.
000 XXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXX, XX (29401)
XXXX XXXXXX XXX 000, XXXXXXXXXX, XX (29402)
000-000-0000 - FAX 000-000-0000
Exhibit G-1
W. Xxxxxxx Xxxxx, XX, Xxxxx X. Xxxxx, and Xxxxx Xxxxx, July 27, 2001--Page 2
The Purchase Agreement provides for, among other things, the sale by
GTA to Buyer of certain golf courses, more particularly described in the
Purchase Agreement, including Bonaventure. In accordance with the terms of the
Purchase Agreement, GTA has sold certain of the Parcels to third-party
purchasers, and as of the date hereof, the only Parcels that have not been sold
to third party purchasers and/or are subject to a pending sale to a third-party
purchaser are the following: The Legends Resort (Parkland, Heathland, and
Xxxxxxxx), Heritage, Oyster Bay, Tiburon, and Bonaventure. Buyer has previously
delivered to GTA various written notices of its intention to terminate its
obligation to purchase Bonaventure pursuant to the due diligence provisions of
the Purchase Agreement, and GTA (i) has disputed Buyer's purported right to
terminate such obligations to purchase Bonaventure, and (ii) has asserted that
the conditions and other matters specified by Buyer as reasons for its
termination of such purchase obligation do not give rise to the termination
right claimed by Buyer. The dispute relating to Buyer's alleged right to
terminate its obligation to purchase Bonaventure shall be referred to herein as
the "DISPUTE." The parties have been unable to resolve the Dispute prior to the
date hereof.
Seller and Buyer desire to immediately close the acquisition of the
Legends Resort (Parkland, Heathland, and Xxxxxxxx), Heritage, Oyster Bay and
Tiburon (collectively, the "SALE PARCELS"), subject to the Dispute regarding the
Buyer's obligation with respect to Bonaventure, and Seller and Buyer
respectively are willing to close the sale and purchase of such Sale Parcels
immediately (the "SALE PARCELS CLOSING") only on the condition that the parties
agree upon a dispute resolution procedure and other matters to resolve the
Dispute regarding Bonaventure.
GTA is the owner of Bonaventure. Legends at Bonaventure, Inc., a
Florida corporation ("TENANT"), is an affiliate of the Buyer and is currently
the tenant of Bonaventure. Xxxxx X. Xxxxx and Xxxxx Xxxxx are each affiliates of
Buyer and Tenant.
So that GTA and Buyer can close on the Sale Parcels, GTA, Tenant, Xxxxx
X. Xxxxx, and Xxxxx Xxxxx, are entering into that certain First Amendment to
Purchase Agreement, Fifth Amendment to Lease Agreement (Bonaventure Golf Club)
and Settlement Agreement ("FIRST AMENDMENT") contemporaneously with the Sale
Parcels Closing, and pursuant to the terms of the First Amendment, the parties
have agreed that at any time after the Sale Parcels Closing, one of the parties
may file an action for declaratory relief (the "DECLARATORY RELIEF ACTION")
regarding the disputed issues in accordance with and subject to the terms of the
First Amendment.
In that (i) the Legends Parties are presently represented by counsel in
connection with the Purchase Agreement, First Amendment, and Dispute
(collectively, along with the Declaratory Relief Action [and any collateral
litigation]), the "MATTERS"), and (ii) the Firm has never represented the Buyer
or any of the Legends Parties in a matter related to the Matters, GTA and the
Legends Parties agree that the Firm may represent GTA in the Matters.
Additionally, the Legends Parties agree that the representation by the Firm of
GTA in the Matters will not adversely affect the Firm's relationship with the
Legends Parties with respect to any present or past representation of the
Legends Parties by the Firm.
Understandably, we take very seriously the potential for conflict
inherent in our representation of clients and the conditions of any waiver a
client might make. GTA and each of
W. Xxxxxxx Xxxxx, XX, Xxxxx X. Xxxxx, and Xxxxx Xxxxx, July 27, 2001--Page 3
the Legends Parties acknowledge that they have sought advice from independent
counsel regarding this conflict waiver.
Please review the foregoing and, if it meets with your and your
counsel's approval, sign a copy of this letter and return it to me in the
enclosed envelope provided. BY SIGNING THIS LETTER, EACH OF YOU REPRESENTS AND
WARRANTS THAT YOU UNDERSTAND THE POTENTIAL FOR CONFLICT OF INTEREST AND THAT YOU
VOLUNTARILY AND INTELLIGENTLY WAIVE ANY SUCH CONFLICT WHICH MIGHT NOW EXIST OR
ARISE IN THE FUTURE.
XXXXXX XXXXX XXXXXX XXXXXXX
& XXXXXXXX, LLC
By: /s/ Xxxxxxx X. Xxxxxx, Esq.
---------------------------------
Xxxxxxx X. Xxxxxx, Esq.
Member
The undersigned consents to your Firm's representation of Golf Trust of
America, L.P., with respect to the above-referenced issues, which waiver is
subject to the terms set forth above.
Date: 7/30/01 Golf Trust of America, L.P., a Delaware
-------------------- limited partnership
By: GTA GP, Inc., a Maryland corporation,
its general partner
By: /s/ W. Xxxxxxx Xxxxx, XX
-------------------------------
Name: W. Xxxxxxx Xxxxx, XX
------------------------------
Its: President
------------------------------
Date: 7/29/01 Golf Legends, Ltd.
--------------------
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
---------------------------------------
Its: President
----------------------------------------
W. Xxxxxxx Xxxxx, XX, Xxxxx X. Xxxxx, and Xxxxx Xxxxx, July 27, 2001--Page 4
Date: 7/29/01 Legends Golf Holding, LLC
--------------------
By: /s/ Xxxxx X. Xxxxx
-----------------------
Name: Xxxxx X. Xxxxx
-----------------------
Its: Manager
------------------------
Date: 7/29/01 Legends at Bonaventure, Inc.
--------------------
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
----------------------------
Its: President
----------------------------
Date: 7/29/01 Legends National Golf Management, LLC
--------------------
By: /s/ Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
-----------------------
Its: Manager
-----------------------
Date: 7/29/01 /s/ Xxxxx X. Xxxxx
-------------------- -----------------------------
Xxxxx X. Xxxxx, individually
Date: 7/29/01 /s/ Xxxxx Xxxxx
-------------------- -----------------------------
Xxxxx Xxxxx, individually
EXHIBIT E
LEASE TERMINATION DOCUMENTS
Exhibit E-1
DRAWN BY AND RETURN TO:
Parker, Poe, Xxxxx & Bemstein L.L.P. (Box 225) (JWD)
Three First Union Center
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
STATE OF FLORIDA
COUNTY OF BROWARD TERMINATION OF LEASE
AND OTHER AGREEMENTS
(BONAVENTURE GOLF COURSE)
THIS TERMINATION OF LEASE AND OTHER AGREEMENTS (this "Termination") is
made and entered into effective as of the ____ day of _____________, 2001
("Termination Date"), by and between GOLF TRUST OF AMERICA, L.P., a Delaware
limited partnership ("Landlord"), and LEGENDS AT BONAVENTURE, INC. (formerly
Emerald Dunes-Bonaventure, Inc.), a Florida corporation ("Tenant").
WHEREAS, Landlord and Tenant entered into that certain Lease dated
January 1, 1998, as amended (i) by that certain First Amendment to Lease
Agreement dated October 1, 1998, (ii) by that certain Second Amendment to Lease
Agreement dated Xxxxx 00, 0000, (xxx) by that certain Third Amendment to Lease
Agreement dated July 1, 1999, (iv) by that certain Fourth Amendment to Lease
Agreement dated December 31, 1999, and (v) as further amended, if amended
(collectively, the "Lease"), whereby Landlord leased to Tenant the premises
known as Bonaventure Golf Course located in Broward County, Florida (the
"Premises") as more particularly described on EXHIBIT A attached hereto and
incorporated herein by this reference.
WHEREAS, Landlord and Tenant wish, each for itself and for its
affiliates, transferees, successors and assigns, to terminate and cancel the
Lease and any and all management and pledge agreements and all other agreements,
instruments and documents (if any) between Landlord and Tenant pertaining to the
Premises (collectively, "Other Agreements").
NOW, THEREFORE, for and in consideration of the premises contained
herein, One Dollar ($1.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant do
hereby agree as follows:
1. TERMINATION DATE. The Lease and the Other Agreements shall remain
in full force and effect until the Termination Date. As of the
Termination Date, the Lease and the Other Agreements and all the
terms, provisions and obligations contained therein shall cease
and terminate and be of no further force and effect, and the
parties shall proceed to prorate all amounts due thereunder as
provided therein and otherwise proceed with the termination
provisions expressly set forth in the Lease and the Other
Agreements.
2. BINDING AGREEMENT. This Termination shall be binding upon and
shall inure to the benefit of Landlord and Tenant and their
respective successors and assigns.
3. COUNTERPARTS. This Termination may be executed in multiple
counterparts, with all counterparts taken together deemed to be
one (1) document.
IN WITNESS WHEREOF, the parties have executed this Termination by
authority duly given effective as of the day and year first written above.
LANDLORD:
GOLF TRUST OF AMERICA, L.P.,
a Delaware limited partnership
By: GTA GP, INC., a Maryland
corporation, its general partner
By:
------------------------------------
Title:
------------------------------------
TENANT:
LEGENDS AT BONAVENTURE, INC., a Florida
corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Title: President
------------------------------
STATE OF
--------------------------------
COUNTY OF
-------------------------------
I, _________________________, a Notary Public of _____________________
County, State of , ___________________________ certify that
___________________________ personally came before me this day and
acknowledged that he/she is ________________ President of GTA GP, Inc.,
a Maryland corporation, general partner of Golf Trust of America, L.P.,
a Delaware limited partnership, and that by authority duly given and as
the act of the corporation as general partner of Golf Trust of America,
L.P., the foregoing instrument was signed in its name by its President.
Witness my hand and official seal this ______ day of _____________,
2001.
------------------------------------
Notary Public
Print Name:
------------------------------
[NOTE: NOTARY PUBLIC MUST SIGN EXACTLY AS
ON NOTARY SEAL]
My Commission Expires:
---------------------
[NOTARY SEAL]
STATE OF SOUTH CAROLINA
---------------
COUNTY OF HORRY
-------------
I, XXXXX X. XXXXXXXXX, a Notary Public of GEORGETOWN County, State
of SOUTH CAROLINA, do hereby certify that XXXXX X. XXXXX personally appeared
before me this day and acknowledged that he/she is President of Legends of
Bonaventure, Inc., a Florida corporation, and that he/she, as President,
being authorized to do so, executed the foregoing instrument on behalf of
said corporation.
Witness my hand and official stamp or seal this 29TH day of JULY, 2001.
---- ----
/s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Notary Public
Print Name: Xxxxx X. Xxxxxxxxx
-------------------------
[NOTE: NOTARY PUBLIC MUST SIGN EXACTLY AS
ON NOTARY SEAL]
My Commission Expires: MARCH 2010
------------------------
[NOTARY SEAL]
EXHIBIT A
BONAVENTURE
FIRST AMERICAN TITLE INSURANCE COMPANY
FATICO File No.: 26170/GML/sg Policy No.: FA-35-00212
Agent's File No. 72391-09633
EXHIBIT "A"
The six fee parcels and easement parcels located in Broward County, Florida as
follows:
Fee Parcel 1
Tract 60, BONAVENTURE, according to the Plat thereof, as recorded in Plat Book
82, Page 43, Public Records of Broward County, Florida
Less and Except the following two parcels:
PARCEL 104 FEE SIMPLE LIMITED ACCESS RIGHT OF WAY
(A) A portion of Tract 60 of Bonaventure, according to the Plat thereof,
recorded in Plat Book 82 at Page 43, Public Records of Broward County, described
as follows:
COMMENCE at the Northeast corner of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 40 east;
thence run South 0(DEG.) 03'06" East, 2047.07 feet along the East line of said
Section 5; thence North 75(DEG.) 22' 54" West 103.37 feet to the POINT OF
BEGINNING; thence continue North 75(DEG.) 22' 54" West 165.70 feet; thence
South 89(DEG.) 52' 27" West 18.52 feet to the beginning of a curve concave to
the Southwesterly having a radius of 8620.37 feet; thence from a tangent bearing
of South 67(DEG.) 37' 09" East run Southeasterly along said curve 194.38 feet
through a central angle of 1(DEG.) 17' 31" to the end of said curve; thence
North 0(DEG.) 03' 06 West 34.26 feet to the POINT OF BEGINNING.
Together with all rights of ingress, egress, light, air and view between the
grantor's remaining property and any facility constructed on the above described
property;
ALSO FEE SIMPLE RIGHT OF WAY
(B) A portion of Tract 60 of Bonaventure, according to the Plat thereof,
recorded in Plat Book 82, Page 43, Public Records of Broward County, Florida
described as follows:
COMMENCE at the Northeast corner of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 40 East;
thence run South 0(DEG.) 03' 06" East 2047.07 feet along the east line of said
Section 5; thence North 75(DEG.) 22' 54" West 269.07 feet; thence South
89(DEG.) 52' 27" West 18.52 feet to the beginning of a curve concave to the
Southwesterly having a radius of 8620.37 feet and the POINT OF BEGINNING; thence
from a tangent bearing of South 67(DEG.) 37' 09" East run Southeasterly along
said curve 194.38 feet through a central angle of 1(DEG.) 17' 31" to the end
of said curve; thence South 0(DEG.) 03' 06" East 74.33 feet to the beginning
of a curve concave to the Southwesterly having a radius of 8552.37 feet; thence
from a tangent bearing of North 66(DEG.) 07' 36" West run Northwesterly along
said curve 390.86 feet through a central angle of 02(DEG.)37' 07" to the end
of said curve; thence North 89(DEG.) 52' 27" East 181.96 feet to the POINT OF
BEGINNING.
FIRST AMERICAN TITLE INSURANCE COMPANY
FATICO File No.: 26170/GML/sg Policy No.: FA-35-00212
Agent's File No. 72391-09633
Fee Parcel 2
Tract 61, BONAVENTURE, according to the Plat thereof, as recorded in Plat Book
82, Page 43, Public Records of Broward County, Florida;
Fee Parcel 3
See Schedule A-1 attached
Fee Parcel 4
Tract 59, less the Easterly 100 feet of the South 80 feet thereof, BONAVENTURE,
according to the Plat thereof, as recorded in Plat Book 82, Page 43, Public
Records of Broward County, Florida;
Fee Parcel 5
A portion of Tract 16, BONAVENTURE, according to the Plat thereof, as recorded
in Plat Book 82, Page 43, Public Records of Broward County, Florida, more
particularly described as follows:
Begin at the Southeast corner of said Tract 16; thence North 11 degrees 09
minutes 33 seconds East for 168.57 feet; thence North 05 degrees 40 minutes 37
seconds East for 647.03 feet; thence North 02 degrees 58 minutes 40 seconds East
for 253.48 feet; thence North 78 degrees 58 minutes 17 seconds West for 252.43
feet, said last 4 courses being coincident with the boundary line of Tract 16;
thence South 01 degrees 40 minutes 23 seconds West for 182.89 feet; thence South
03 degrees 25 minutes 35 seconds West for 465.59 feet; thence South 00 degrees
50 minutes 35 seconds East for 410.19 feet to a point on a circular curve
concave to the South from which a line bears South 07 degrees 48 minutes 01
seconds West to the radius point; thence Southeasterly along a circular curve to
the right, having a radius of 552.00 feet and a central angle of 04 degrees 00
minutes 13 seconds for an arc distance of 38.57 feet; Thence run South 67
degrees 15 minutes 27 seconds East for 85.57 feet to a point on the Northerly
right-of-way line of Xxxxx Boulevard; Thence run South 74 degrees 34 minutes 25
seconds East for 50.00 feet to the Point of Beginning.
Fee Parcel 6
A portion of Tract 57, BONAVENTURE, according to the Plat thereof, as recorded
in Plat Book 82, Page 43 of the Public Records of Broward County, Florida, more
particularly described as follows:
COMMENCE at the Northeast corner of Tract 22, FLORIDA FRUIT LANDS COMPANY'S
SUBDIVISION NO. 1, according to the plat thereof, as recorded in Plat Book 2,
Page 17 of the Public Records of Dade County, Florida;
THENCE North 89(DEG.) 52' 54" West, along the North line of said Tract 22, a
distance of 84.11 feet to the POINT OF BEGINNING;
THENCE, continue North 89(DEG.)52' 54" West, along said North line, 173.44
feet;
SCHEDULE A-1 (Page 1 of 3)
Fee Parcel 3 of Bonaventure
Tract 15 LESS the parcels described below and Tract 29, BONAVENTURE, according
to the Plat thereof, as recorded in Plat Book 82, Page 43, Public Records of
Broward County, Florida.
LESS THE FOLLOWING DESCRIBED PARCELS:
A portion of Tract 15, BONAVENTURE, according to the plat thereof, as recorded
in Plat Book 82, Page 43, of the Public Records of Broward County, Florida, more
particularly described as follows:
Commencing at the Northeast corner of Tract 15, said point being the Southeast
corner of Tract 58 of said plat of BONAVENTURE and lying on the West
Right-of-Way line of Country Club Road (106.00 feet wide); thence North
63(DEG.) 51' 17" West, along the North line of said Tract 15, and South line
of said Tract 58, for a distance of 87.13 feet to the Point of Beginning; thence
South 22(DEG.)39'49" West, 127.54 feet; thence South 27(DEG.) 12'51" West,
18.16 feet; thence South 80(DEG.) 45'54" West, 2.65 feet; thence South
85(DEG.) 48'54" West, 74.43 feet; thence North 04(DEG.)11'06" West, 91.30
feet; thence North 26(DEG.)08'43" East, 105.78 feet to an intersection with
said North line of Tract 15; thence South 63(DEG.)51'17" East, along the said
North line of Tract 15 for a distance of 105.10 feet to the Point of Beginning.
SCHEDULE A-1 (Page 2 of 3)
Fee Parcel 3 of Bonaventure, continued
ALSO LESS:
A portion of Tract 15, BONAVENTURE, according to the plat thereof, as recorded
in Plat Book 82, Page 43, of the Public Records of Broward County, Florida, more
particularly described as follows:
Commencing at the Northeast corner of said Tract 15, said point lying on the
Westerly Right-of-Way line of Country Club Road, (106.00 feet wide); thence
South 23(DEG.)55'46" West, along said Westerly Right-of-Way line, 45.63 feet,
to the beginning of a tangent curve concave to the East; thence Southwesterly
along said Westerly Right-of-Way line and along the arc of said curve, having a
radius of 458.25 feet, a delta of 15(DEG.)29'48", an arc distance of 123.94
feet, to the Point of Beginning(a radial line through said point bears South
81(DEG.) 34'02"East); thence Southerly along said Westerly Right-of-Way line
and along the arc of said curve having a radius of 458.25 feet, a delta of
23(DEG.)18'08", an arc distance of 186.37 feet to a Point of Tangency; thence
South 14(DEG.) 52'10"East, along said Westerly Right-of-Way line, 268.94 feet,
to the beginning of a tangent curve concave to the Northeast; thence
Southeasterly along said Westerly Right-of-Way line and along the arc of said
curve, having a radius of 958.25 feet, a delta of 07(DEG.)43'24", an arc
distance of 129.17 feet to an intersection with a non-radial line (a radial line
through said point bears North 67(DEG.)24'26" East); thence North
81(DEG.)19'35" West, 73.13 feet; thence North 68(DEG.)25'49" West, 28.07
feet; thence North 87(DEG.)59'29" West,68.62 feet; thence South
71(DEG.)44'14" West, 53.11 feet; thence North 68(DEG.)09'10" West, 48.03
feet; thence North 75(DEG.)03'02" West, 14.41 feet; thence North 34(DEG.)
55'44" West, 49.44 feet; thence North 01(DEG.)55'55" East, 444.93 feet; thence
North 15(DEG.)18'56" East, 31.05 feet; thence North 60(DEG.) 54'24" East,
7.69 feet; thence North 02(DEG.)48'32" East, 154.65 feet to the Point of
Beginning.
ALSO LESS:
A portion of Tract 15, BONAVENTURE, according to the Plat thereof, as recorded
in Plat Book 82, Page 43 of the Public Records of Broward County, Florida, more
particularly described as follows:
Commencing at the Southwest corner of said Tract 15, said point
SCHEDULE A-1 (Page 3 of 3)
Fee Parcel 3 of Bonaventure, continued
also being located on the Northerly Right-of-Way line of Xxxxx Boulevard (80
feet wide); thence North 69(DEG.)16'59" East along said Northerly Right-of Way
line, 103.22 feet to the Point of Beginning; thence North 35(DEG.)04'07" West,
451.69 feet; thence North 54(DEG.)55'53" East, 117.87 feet; thence South
65(DEG.)21'16" East, 23.87 feet; thence South 74(DEG.)12'38" East, 37.89
feet; thence South 86(DEG.)11'05"East, 112.21 feet; thence South
61(DEG.)03'22" East, 16.98 feet; thence South 27(DEG.)11'52" East, 27.12
feet; thence Xxxxx 00(XXX.) 00'00" Xxxx, 28.07 feet; thence South
34(DEG.)41'19" East, 49.93 feet; thence South 42(DEG.)21'02" East, 48.37
feet; thence South 35(DEG.)02'24" East, 37.13 feet; thence South
27(DEG.)16'07" East, 46.92 feet; thence South 09(DEG.)26'55" East, 41.88
feet; thence South 28(DEG.)52'17" East, 40.28 feet; thence South
32(DEG.)50'57" East, 69.29 feet to an intersection with said Northerly
Right-of-Way line of Xxxxx Boulevard and with the arc of a non-radial curve
concave to the South (a Radial line through said point bears South
08(DEG.)37'58" East); thence Northwesterly along said North Right-of-Way line
and the arc of said curve, having a radius of 540.00 feet, a delta of
12(DEG.)05'03", an arc distance of 113.89 feet to a Point of Tangency; thence
South 69(DEG.)16'59" West along said Northerly Right-of-Way line, 109.48 feet
to the Point of Beginning.
FIRST AMERICAN TITLE INSURANCE COMPANY
FATICO File No.: 26170/GML/sg Policy No.: FA-35-00212
Agent's File No. 72391-09633
THENCE, North 00(DEG.)05'29" East, 195.73 feet;
THENCE, South 89(DEG.) 52'54" East, 257.55 feet to a point on the East line of
the West one-half (W 1/2) of Section 5, Township 50 South, Range 40 East, said
line also being the centerline of a 50.00 foot wide utility and access easement
as shown on said BONAVENTURE Plat;
THENCE, South 00(DEG.)05'29" West, along said line, 120.00 feet;
THENCE, North 89(DEG.)52' 54" West, 83.53 feet;
THENCE, South 00(DEG.) 31'49" West, 75.73 feet to the POINT OF BEGINNING.
Easement Parcel 1A
Non-Exclusive right, privilege and easement, in favor of Fee Parcel 6 for: i) 50
foot Utility and Access Easement; ii) 25 foot Utility and Access Easement; and
iii) 20 foot Utility and Access Easement as shown on the Plat of BONAVENTURE,
recorded in Plat Book 82, Page 43, of the Public Records of Broward County,
Florida;
Easement Parcel 1B
Non-Exclusive right, privilege and easement for use of 25 foot Access Easement
as shown on the Plat of XXXXXXXX XXXXXX PROPERTY, as recorded in Plat Book 152,
Page 46, of the Public Records of Broward County, Florida;
Easement Parcel 2
Non-Exclusive easement in Cart Path Easement, by and between Bonaventure Country
Club Associates and Newbon Land Partners, Ltd., dated May 2, 1997, and recorded
in Official Records Book 26400, Page 56, of the Public Records of Broward
County, Florida;
Easement Parcel 3
Easement to maintain encroachment, support and for access to maintain and repair
in Easement Agreement by and between Bonaventure Country Club Associates and
Hillbern Inc., dated May 2, 1997, and recorded in Official Records Book 26400,
Page 45, of the Public Records of Broward County, Florida.
IN THE COUNTY COURT IN AND FOR BROWARD COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.
GOLF TRUST OF AMERICA, L.P., a
Delaware limited partnership,
Plaintiff,
v.
LEGENDS AT BONAVENTURE, INC.,
a Florida corporation,
Defendant.
/
-----------------------------------
STIPULATION OF SETTLEMENT
AND AGREEMENT TO VACATE PREMISES
Plaintiff Golf Trust of America, L.P. ("Golf Trust") and defendant
Legends at Bonaventure, Inc. ("Legends"), enter into this Stipulation of
Settlement and Agreement to Vacate Premises, and state as follows:
WHEREAS, Golf Trust leased to Legends pursuant to that certain written
lease dated January 1, 1998, as modified and assigned (the "Lease"), certain
commercial premises located in Weston, Broward County, Florida, commonly known
as the Bonaventure Country Club (the "Premises");
WHEREAS, on _____________, 2001, Golf Trust filed this action against
Legends for possession of the Premises.
WHEREAS, Legends is willing to vacate the Premises on 12:01 a.m.
eastern daylight time _____________, 2001 under certain conditions;
Exhibit E-2
WHEREAS, in light of the uncertainty and cost of litigation, Golf Trust
and Legends have amicably resolved their present disputes concerning the Lease;
and
WHEREAS, this Stipulation of Settlement is in the best interest of all
parties to this Stipulation.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. The parties agree that the above recitations are true and correct.
2. Legends agrees to voluntarily vacate and turn over the Premises to
Golf Trust on or by 12:01 a.m. eastern daylight time _________, 2001 . The
parties agree that the term of the Lease shall expire on 12:01 a.m. eastern
daylight time ________, 2001.
3. If Legends fails to vacate the Premises on or by _________, 2001,
then upon the filing by Golf Trust of an Affidavit of Default, and without
further need of hearing or notice, Golf Trust shall be entitled to the immediate
entry of a Final Judgment for Possession of the Premises, including the issuance
of a writ of possession forthwith, and for damages against Legends equal to any
amounts which may arise in accordance with the terms of the Termination and
Release Agreement executed as of even date herewith by and between Golf Trust,
Legends and [LIST PLEDGORS] (attached hereto as EXHIBIT "A") and double the
monthly rent, pro-rated for the period of time of the holdover, and reasonable
attorneys' fees and court costs incurred by Golf Trust in enforcing the
Stipulation.
4. Upon satisfaction of all conditions under this Stipulation and the
timely turnover of the Premises by Legends, Golf Trust shall dismiss its
Complaint with prejudice. The parties also agree to exchange general releases
upon full performance of the Stipulation.
Exhibit E-3
1. The parties agree that they will execute, and cooperate in the
execution of, any and all documents necessary to carry out the intent and
purpose set forth herein.
2. This Stipulation is contingent upon approval by this Court. If such
approval is denied or conditioned, then this Stipulation shall be void and of no
legal effect, and the parties restored to their respective positions as they
existed prior the execution of the Stipulation. The parties hereto agree to
fully cooperate in pursuing and achieving this Court's approval of the terms and
conditions of the Stipulation. This Stipulation shall become effective upon the
entry by this Court of the Agreed Order attached hereto as EXHIBIT "A". The
parties expressly consent to the EX PARTE submission of this Stipulation and the
Agreed Order by Golf Trust for the Court's consideration.
3. This Stipulation will be binding upon and inure to the benefit of
the parties hereto and their successors in interest and assigns thereof.
4. This Stipulation shall be construed and governed by the laws of the
State of Florida.
5. This Stipulation supersedes those provisions in the Lease concerning
the remaining term of the Lease. The lease shall be deemed terminated pursuant
to the terms of the Termination and Release Agreement attached hereto as EXHIBIT
"A", and the Termination and Release Agreement along with this Stipulation
constitutes the entire agreement by and between the parties with respect to
present disputes concerning the Lease. The undersigned hereby acknowledge that
there are no communications or oral understandings contrary to or different from
this Stipulation.
6. This Court shall expressly retain jurisdiction to enforce and
construe the provisions of this Stipulation. The parties hereto consent to the
retention of jurisdiction of this
Exhibit E-4
Court for the determination of any disputes under this Stipulation, including,
if necessary, the entry of a Final Judgment in accordance with paragraph 4 of
this Stipulation.
7. This Stipulation may be executed in one or more counterparts, each
counterpart to be considered an original portion of this Stipulation and all of
which shall constitute a singular document.
HOLLAND & KNIGHT LLP
Attorneys for Plaintiff
000 Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Tel. (000) 000-0000
Fax (000 000-0000
By:
----------------------------
Xxxx X. Xxxxx
Fla. Bar No. 767522
Dated: , 2001
------------ ---
GOLF TRUST OF AMERICA, L.P.,
a Delaware limited partnership
By: GTA GP, Inc., a Maryland corporation
By:
------------------------
Name:
----------------------
Title:
---------------------
Dated: , 2001
------------ ---
[INSERT LEGENDS LOCAL COUNSEL INFO.]
By:
---------------------
Dated: , 2001
------------ ---
Exhibit E-5
LEGENDS AT BONAVENTURE, INC.,
a Florida corporation
By:
------------------------
Name:
----------------------
Title:
---------------------
Dated: , 2001
------------ ---
Exhibit E-6
IN THE COUNTY COURT IN AND FOR BROWARD COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.
GOLF TRUST OF AMERICA, L.P., a
Delaware limited partnership,
Plaintiff,
v.
LEGENDS AT BONAVENTURE, INC., a
Florida corporation,
Defendant.
/
-----------------------------------
AGREED FINAL JUDGMENT OF POSSESSION
THIS CAUSE came before the Court upon consideration of paragraph 4 of
the Stipulation of Settlement and Agreement to Vacate Premises (the
"Stipulation") filed by the parties and the Affidavit of Default filed by
plaintiff Golf Trust of America, L.P., and the parties having stipulated to the
entry of this judgment for possession, and being otherwise fully advised in the
premises, it is
ORDERED AND ADJUDGED as follows:
1. Plaintiff Golf Trust of America shall recover from Defendant Legends
at Bonaventure, Inc., possession of the real property and commercial premises
known as the Bonaventure Country Club, located in Weston, Broward County,
Florida, for which a Writ of Possession shall be issued by the Clerk of the
Court and delivered to the sheriff for execution forthwith in accordance with
Rule 1.580(a) of the Florida Rules of Civil Procedure.
Exhibit E-7
2. The Court expressly reserves jurisdiction to determine the amount of
money damages and attorneys' fees and costs to be awarded to plaintiff in
accordance with paragraph 4 of the Stipulation.
DONE and ORDERED in Xxxxxxxx, at Weston, Broward County, Florida, this
______ day of ___________, 2001.
-----------------------------
COUNTY JUDGE
COPIES PROVIDED TO:
Xxxx X. Xxxxx, Esq.
HOLLAND & KNIGHT LLP
COUNSEL FOR PLAINTIFF
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
[INSERT LEGENDS FLORIDA COUNSEL INFO.]
By:
--------------------------
Dated: , 2001
----------------- -----
Exhibit E-8
IN THE COUNTY COURT IN AND FOR BROWARD COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.
GOLF TRUST OF AMERICA, L.P., a
Delaware limited partnership,
Plaintiff,
v.
LEGENDS AT BONAVENTURE, INC. a
Florida corporation,
Defendant.
/
-----------------------------------
AGREED ORDER APPROVING STIPULATION OF SETTLEMENT
THIS CAUSE having come before the Court upon the Stipulation of
Settlement and Agreement to Vacate Premises filed by the parties, and the
parties being in agreement, and the Court being otherwise fully advised in the
premises, it is hereby--
ORDERED AND ADJUDGED that the Stipulation of Settlement is approved and
ratified by this Court. This Court shall retain jurisdiction to enforce and
construe the provisions of the Stipulation of Settlement, and to determine any
disputes arising thereunder.
DONE and ORDERED in Xxxxxxxx, at Weston, Broward County, Florida, this
______ day of ___________, 2001.
-----------------------------
COUNTY JUDGE
Exhibit E-9
COPIES PROVIDED TO:
Xxxx X. Xxxxx, Esq.
HOLLAND & KNIGHT LLP
COUNSEL FOR PLAINTIFF
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
[INSERT LEGENDS FLORIDA COUNSEL INFO.]
By:
-----------------------------
Dated: , 2001
--------------------- -----
Exhibit E-10
EXHIBIT F
GUARANTY
THIS GUARANTY ("GUARANTY") is made as of this 30 day of July, 2001, by
XXXXX XXXXX, an individual, and XXXXX XXXXX, an individual (collectively, as
"GUARANTOR"), in favor of GOLF TRUST OF AMERICA, L.P., a Delaware limited
partnership ("GTA").
R E C I T A L S
A. GTA and one of Guarantor's Affiliates ("BUYER") have
entered into that certain Purchase Agreement dated February 14, 2001 (as
amended, modified or supplemented from time to time, collectively, the "PURCHASE
AGREEMENT"), GTA and one of Guarantor's other Affiliates ("TENANT") have entered
into that certain Lease dated as of January 1, 1998 (as assigned, amended,
modified or supplemented from time to time, collectively, the "LEASE"), and GTA,
Buyer, Tenant and Guarantors have entered into that certain First Amendment to
Purchase Agreement, Fifth Amendment to Lease Agreement (Bonaventure Golf Club)
and Settlement Agreement (the "AMENDMENT AGREEMENT"). Pursuant to the Amendment
Agreement, Buyer and Tenant have agreed to execute and deliver the Bonaventure
Transition Agreement (defined therein). The Purchase Agreement provides for,
among other things, the sale by GTA to Buyer of certain real property known as
the Bonaventure Country Club and more particularly described in the Purchase
Agreement (the "PROPERTY"). Pursuant to the Lease, GTA has leased to Tenant the
Property. The Amendment Agreement amends the Purchase Agreement and the Lease
and sets forth certain other agreements between the parties with respect to the
Property. The Bonaventure Transition Agreement provides for the transition of
the Property (and the golf course thereon) from Tenant to a third-party.
B. Buyer has delivered to GTA various notices purporting to
terminate its obligation to purchase the Property pursuant to various provisions
of the Purchase Agreement and disputing its obligation to purchase the Property,
and GTA has responded that it does not agree with Buyer's interpretation of the
Purchase Agreement and disputes its purported right to terminate its obligation
to purchase the Property.
C. GTA and Buyer desire to consummate certain transactions
provided for in the Purchase Agreement other than the purchase and sale of the
Property, and in connection therewith, GTA, Buyer and Tenant desire to amend and
modify the Purchase Agreement and the Lease pursuant to the Amendment Agreement
to provide for, among other things, (i) the closing of such other transactions
while reserving the parties' respective rights with respect to the Property,
(ii) an expedited and mutually agreed-upon procedure for the timely and
expeditious resolution of the dispute regarding Buyer's obligation to purchase
the Property, (iii) Tenant's agreement to continue to lease the Property
throughout the dispute resolution process (and, potentially, for a period of
time thereafter), notwithstanding any contrary provisions of the Purchase
Agreement, (iv) an adjustment to the rental obligations of Tenant under the
Lease, and (v) certain modifications to the Purchase Agreement relating to the
purchase and sale of the Property. As a condition to GTA's agreement to execute
and deliver the Amendment Agreement so amending the Purchase Agreement and Lease
(and providing all other agreements of GTA therein), GTA has required that
Guarantor execute and deliver to GTA this fully binding
guaranty of the Buyer's and Tenant's respective obligations under the Amendment
Agreement, the Purchase Agreement, the Lease and the Bonaventure Transition
Agreement (if executed).
D. Each Guarantor is a direct or indirect (as the case may be)
parent of, and has a direct or indirect financial and other significant
interests in and relationships with, each of Buyer and Tenant.
E. GTA would not execute any agreement described in RECITAL C
above, or amend the Purchase Agreement and Lease as provided therein, or agree
to consummate any of the transactions under the Purchase Agreement without
concurrently consummating the purchase and sale of the Property if Guarantor did
not execute and deliver to GTA this Guaranty.
NOW, THEREFORE, for and in consideration of the execution by
GTA of the Amendment Agreement (and GTA's agreement to consummate all other
transactions generally described therein), and as a material inducement to GTA
to execute said Amendment Agreement and consummate the transactions generally
described in RECITAL C, Guarantor hereby absolutely, unconditionally and
irrevocably, subject only to the terms and limitations hereof (with particular
reference to SECTION 8 below), guaranties (individually and collectively, the
"GUARANTEED OBLIGATIONS"): (i) the full and prompt payment and performance by
Buyer of each and every one of the terms, conditions and covenants to be kept
and performed by Buyer under the Purchase Agreement (including, without
limitation, its obligation to purchase the Property (if applicable) or to pay to
GTA liquidated damages upon its failure to so purchase the Property), (ii) the
full and prompt payment and performance by Tenant of each and every one of the
terms, conditions and covenants to be kept and performed by Tenant under the
Lease (including, without limitation, its obligation to pay any and all rental
and/or other amounts thereunder and its obligation to surrender the Property
pursuant thereto), (iii) the full and prompt payment and performance by Buyer
and Tenant of each and every one of the terms, conditions and covenants to be
kept and performed by Buyer or Tenant under the Amendment Agreement (including,
without limitation, any obligation to purchase the Property (if applicable) or
to pay to liquidated damages thereunder), and (iv) the full and prompt payment
and performance by Tenant of each and every one of the terms, conditions and
covenants to be kept and performed by Tenant under the Bonaventure Transition
Agreement, all in the manner and within the time periods set forth and provided
in the Purchase Agreement or Lease, as the case may be, and Guarantor further
agrees as follows:
1. It is specifically agreed and understood that the terms of
the Purchase Agreement, Lease, Amendment Agreement and/or Bonaventure Transition
Agreement may be altered, affected, modified or changed, and may be assigned,
from time to time by agreement between GTA and Buyer or Tenant, the case may be,
and that this Guaranty shall thereupon and thereafter guaranty the Guaranteed
Obligations as so changed, modified, altered or assigned.
2. This Guaranty shall not be released, modified or affected
by failure or delay on the part of GTA to enforce any of the rights or remedies
of GTA under the Purchase Agreement, the Lease, the Amendment Agreement or the
Bonaventure Transition Agreement, whether pursuant to the terms thereof or at
law or in equity, except under circumstances where Buyer or Tenant, as the case
may be, is released therefrom.
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3. This Guaranty shall not be impaired or affected by the
following (whether or not Guarantor shall have had notice or knowledge of the
same): (i) any extension or indulgence by GTA in respect of the performance of
or compliance with any Guaranteed Obligations; (ii) any action or inaction by
GTA in respect of the Purchase Agreement, the Lease, the Amendment Agreement or
the Bonaventure Transition Agreement, except in circumstances where such action
or inaction would release Buyer or Tenant, as the case may be, from any
obligation or liability thereunder; (iii) any change in the name or identity of
Buyer or Tenant or any other person or entity referred to in this Guaranty, or
(iv) the dissolution of Buyer or Tenant or any other person or entity referred
to in this Guaranty.
4. Without limiting the generality of the foregoing, but
subject to the limitations of SECTION 8 below, Guarantor hereby waives any and
all benefits and defenses it may have under any applicable laws or statutes and
agrees that by doing so Guarantor's liability under this Guaranty shall continue
until all Guaranteed Obligations have been fulfilled and fully performed and
satisfied, and all sums (if any) due and payable to GTA under the Purchase
Agreement, the Lease, the Amendment Agreement and the Bonaventure Transition
Agreement have been paid in full, even if the Guaranteed Obligations are altered
in any respect. If all or any portion of the Guaranteed Obligations are paid or
performed by Buyer or Tenant, the obligations of Guarantor hereunder shall
continue and remain in full force and effect in the event that all or any part
of such payment(s) or performance(s) is/are avoided or recovered directly or
indirectly from GTA as a preference, fraudulent transfer or otherwise.
5. Guarantor warrants and represents to GTA that it now has
and will continue to have full and complete access to any and all information
concerning the Purchase Agreement, the Lease, the Amendment Agreement and the
Bonaventure Transition Agreement, the value of the assets owned or to be
acquired by Buyer and Tenant, Buyer's and Tenant's financial status and their
respective ability to pay and perform the Guaranteed Obligations. Guarantor
further warrants and represents that it has reviewed and approved copies of the
Purchase Agreement, Lease, Amendment Agreement and Bonaventure Transition
Agreement and is fully informed of the remedies available to GTA thereunder. So
long as any of Guarantor's obligations hereunder remain unsatisfied or owing to
GTA, Guarantor shall keep fully informed as to all aspects of Buyer's and
Tenant's financial condition and the performance of the Guaranteed Obligations.
6. Guarantor hereby waives: (i) all notices to Guarantor, to
Buyer, to Tenant, or to any other person, including, but not limited to, notices
of the acceptance of this Guaranty or the creation, renewal, extension,
assignment, modification or accrual of any of the Guaranteed Obligations and
enforcement of any right or remedy with respect thereto, and notice of any other
matters relating thereto; (ii) notice of acceptance of this Guaranty; (iii)
demand of payment, presentation and protest; (iv) subject to the provisions of
SECTION 8 below, any right to require GTA to proceed against or apply any
security deposit or other security it may hold; (v) subject to the provisions of
SECTION 8 below, any right to require GTA to pursue any other remedy in GTA's
power whatsoever against any party (except as otherwise expressly provided in
this Guaranty below); and (vi) all principles or provisions of law which
conflict with the terms of this Guaranty.
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7. The obligations of Guarantor under this Guaranty shall not
be altered, limited or affected by any case, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of Buyer or Tenant or by any defense which Buyer or Tenant may have
by reason of the order, decree or decision of any court or administrative body
resulting from any such case. GTA shall have the sole right to accept or reject
any plan on behalf of Guarantor proposed in such case and to take any other
action that Guarantor would be entitled to take, including, without limitation,
the decision to file or not to file a claim. Guarantor acknowledges and agrees
that any payment which accrues with respect to Buyer's obligations under the
Purchase Agreement, Tenant's obligations under the Lease, Buyer's or Tenant's
obligations under the Amendment Agreement, or Tenant's obligations under the
Bonaventure Transition Agreement, as the case may be, after the commencement of
any such proceeding (or, if any such payment ceases to accrue by operation of
law by reason of the commencement of said proceeding, such payment as would have
accrued if said proceedings had not been commenced) shall be included in
Guarantor's obligations hereunder because it is the intention of the parties
that said obligations should be determined without regard to any rule or law or
order pertaining to such proceeding which may relieve Buyer of any of its
obligations under the Purchase Agreement, Tenant of any of its obligations under
the Lease, Buyer or Tenant of any of its obligations under the Amendment
Agreement, or Tenant of any of its obligations under the Bonaventure Transition
Agreement, as the case may be. Guarantor hereby permits any trustee in
bankruptcy, receiver, debtor-in-possession, assignee for the benefit of
creditors or similar person to pay GTA, or allow the claim of GTA in respect of,
any such payment accruing after the date on which such proceeding is commenced.
Guarantor hereby assigns to GTA the Guarantor's right to receive any payments
from any trustee in bankruptcy, receiver, debtor-in-possession, assignee for the
benefit of creditors or similar person by way of dividend, adequate protection
payment or otherwise.
8. Notwithstanding any provisions of this Guaranty to the
contrary, the obligations of Guarantor shall in no event be greater than the
obligations of Buyer under the Purchase Agreement, Tenant under the Lease, Buyer
and/or Tenant under the Amendment Agreement, and Tenant under the Bonaventure
Transition Agreement, and the Guarantor shall be entitled to all rights and
defenses of Buyer or Tenant and all limitations on the obligations of the Buyer
and/or Tenant and the rights and remedies of Seller and/or landlord, as the case
may be, under the foregoing agreements, except as expressly waived in SECTIONS 3
and 7 of this Guaranty.
9. Guarantor represents and warrants to GTA that no consent of
any other person, including, without limitation, any creditors of Guarantor, and
no license, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any governmental authority is
required by Guarantor in connection with this Guaranty or the execution,
delivery, performance, validity or enforceability of this Guaranty and all
obligations required hereunder. This Guaranty has been duly executed and
delivered by Guarantor, and constitutes the legally valid and binding obligation
of Guarantor enforceable against Guarantor in accordance with its terms.
10. The execution, delivery and performance of this Guaranty
will not violate any provision of any existing law or regulation binding on
Guarantor, or any order, judgment, award or decree of any court, arbitrator or
governmental authority binding on Guarantor, or of any mortgage, indenture,
lease, contract or other agreement, instrument or undertaking to which
4
Guarantor is a party or by which Guarantor or any of Guarantor's assets may be
bound, and will not result in, or require, the creation or imposition of any
lien on any of Guarantor's properties, assets or revenues pursuant to the
provisions of any such mortgage, indenture, lease, contract or other agreement,
instrument or undertaking.
11. No terms or provisions of this Guaranty may be changed,
waived, revoked or amended without each of the parties' prior written consent.
This Guaranty shall be binding upon Guarantor and its successors and assigns and
shall inure to the benefit of and shall be enforceable by GTA, its successors,
transferees and assigns.
12. Every provision of this Guaranty is intended to be
severable. In the event any term or provision hereof is declared to be illegal
or invalid for any reason whatsoever by a court of competent jurisdiction, such
illegality or invalidity shall not affect the balance of the terms and
provisions hereof, which terms and provisions shall remain binding and
enforceable. This Guaranty shall be governed by and construed in accordance with
the laws of the State of South Carolina.
13. If there is any litigation or arbitration by GTA to
enforce or interpret this guaranty, the unsuccessful party in such litigation,
as determined by the court or arbitrator, shall pay to the successful party, as
determined by the court or arbitrator, all costs and expenses, including, but
not limited to, reasonable attorneys' fees, costs and expenses incurred by the
successful party. As used herein, the term "attorneys' fees" and "attorneys'
fees, costs and expenses" shall mean the fees and expenses of counsel to the
parties hereto, which may include printing, photostating, duplicating and other
expenses, air freight charges, and fees billed for law clerks, paralegals and
other persons not admitted to the bar but performing services under the
supervision of an attorney, and the costs and fees incurred in connection with
the enforcement and collection of any judgment obtained in any such proceeding,
and will include, without limitation, expert witness and other witness fees,
costs and expenses.
14. No failure or delay on the part of GTA to exercise any
power, right or privilege under this Guaranty shall impair such power, right or
privilege, or be construed to be a waiver of any default or an acquiescence
therein, nor shall any single or partial exercise of such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege.
15. If this Guaranty is executed by more than one person, then
each such person shall be jointly and severally liable for all Guaranteed
Obligations.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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THE UNDERSIGNED GUARANTOR ACKNOWLEDGES THAT IT WAS AFFORDED THE OPPORTUNITY TO
READ THIS DOCUMENT CAREFULLY AND TO REVIEW IT WITH ANY ATTORNEY OF GUARANTOR'S
CHOICE BEFORE SIGNING IT. GUARANTOR ACKNOWLEDGES HAVING READ AND UNDERSTOOD THE
MEANING AND EFFECT OF THIS DOCUMENT BEFORE SIGNING IT.
EXECUTED as of the first day above written.
GUARANTOR:
XXXXX XXXXX,
an individual
/s/ Xxxxx X. Xxxxx
----------------------------------
XXXXX XXXXX,
an individual
/s/ Xxxxx Xxxxx
----------------------------------
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EXHIBIT G
BONAVENTURE TRANSITION AGREEMENT
Exhibit G-1
TRANSITION AGREEMENT
(BONAVENTURE GOLF CLUB)
THIS TRANSITION AGREEMENT (this "AGREEMENT"), is entered into as of
____________, 2001 (the "EFFECTIVE DATE"), by and among ______________________
("BUYER"), Golf Trust of America, L.P., a Delaware limited partnership
("SELLER"), and Legends at Bonaventure, Inc., a Florida corporation ("TENANT").
RECITALS
A. Seller, as seller, and Buyer, as purchaser, have entered into that
certain Purchase and Sale Agreement dated as of ______________ (the "PURCHASE
AND SALE AGREEMENT") relating to the sale by Seller to Buyer of a golf course,
related improvements and amenities, and personal property located in Broward
County, Florida, commonly known as "Bonaventure Golf Club" (collectively, the
"GOLF COURSE") (the conveyance of the Golf Course from Seller to Buyer shall be
called herein the "PROPERTY-CONVEYANCE"); and
B. Tenant has possession of and is operating the Golf Course pursuant
to that certain Lease dated as of January 1, 1998, by and between Seller, as
lessor, and Tenant's predecessor-in-interest, as lessee (as amended, the
"LEASE"); and
C. The parties desire to enter into this Agreement to set forth their
relative rights and obligations related to certain aspects of the closing of the
Property-Conveyance, as provided herein.
NOW, THEREFORE, for and in consideration of the mutual covenants,
promises, and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
I. DEFINITIONS
1.1 DEFINITIONS. For the purpose of this Agreement, the following terms
shall have the meanings indicated:
"AMENDMENT AGREEMENT" shall mean that certain First Amendment to
Purchase Agreement, Fifth Amendment to Lease Agreement (Bonaventure Golf Club)
and Settlement Agreement dated July 30, 2001, by and among Seller, Tenant,
Legends Golf Holding, LLC, Xxxxx Xxxxx and Xxxxx Xxxxx.
"XXXX OF SALE" shall have the meaning set forth in SECTION 2.3 hereof,
the form of which is attached hereto as EXHIBIT 2.3.
"CLOSING" shall have the meaning set forth in SECTION 2.1.
"CLOSING DATE" shall mean the date specified in SECTION 2.1.
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"CLOSING STATEMENTS" shall have the meaning set forth in
SECTION 4.1(j).
"EFFECTIVE DATE" shall mean the date of this Agreement.
"EXCLUDED ASSETS" shall mean those assets of the Golf Course set forth
on EXHIBIT 1.1(a).
"EXCLUDED OBLIGATIONS" shall have the meaning set forth in SECTION 2.2.
"FF&E" shall mean all golf carts and other vehicles, lawn mowers, ball
machines and other driving range equipment, computers, cash registers and other
similar equipment, inventory control systems, and other fixtures, furniture,
furnishings, fittings, equipment, machinery, apparatus, appliances, as well as
all golf clubs, bags, shoes and other golf equipment for rent, driving range
balls, china, glassware, linens, silverware, kitchen and bar small goods, paper
goods, guest supplies, cleaning supplies, operating supplies, printing,
stationery and uniforms, accounts and membership receivables, cash on hand,
prepaid deposits, prepaid expenses, and other articles of personal property,
whether in use or held in reserve storage for future use in connection with the
operation of the Golf Course or located at the Golf Course or held in reserve
storage for future use in connection with the Golf Course; PROVIDED, HOWEVER,
all those certain items listed on EXHIBIT B of the Purchase and Sale Agreement
shall be excluded from the definition herein.
"FOOD AND BEVERAGES" shall mean all opened and unopened food and
beverages (alcoholic and non-alcoholic) whether in use or held in reserve
storage for future use in connection with the operation of the Golf Course in
the ordinary course of business of operating the Golf Course that is unspoiled
and identified as such prior to Closing.
"GOLF COURSE" shall have the meaning set forth in the Recitals.
"GOLF COURSE CONTRACTS" shall mean all golf pro, instructor and other
employment contracts, management agreements, golf course membership agreements,
priority Tee Times agreements and other similar agreements affecting the use and
operation of the Golf Course, group, frequent player or other similar discount
arrangements or commitments, group, tournament and other golf course and
clubhouse bookings and reservation agreements, water, sewer or other utility
agreements, landscaping, maintenance and other service contracts, union
contracts, collective bargaining agreements, employee benefit plans, golf cart,
telephone and other equipment leases, and other contracts or agreements relating
to the maintenance, operation, provisioning or equipping of the Golf Course,
together with all related written warranties and guaranties. A list of all Golf
Course Contracts is attached hereto as EXHIBIT 1.1(B).
"GOLF COURSE EMPLOYEES" shall mean all golf pros, instructors, staff
and other persons employed to operate the Golf Course.
"INTANGIBLE PROPERTY" shall mean Golf Course Contracts, Permits, and
Space Leases as well as all customer lists and all other contract, property and
other intangible rights belonging to or otherwise used in the use, ownership and
operation of the Golf Course (including, but not limited to, all rights to the
use of the name "Bonaventure" and all derivatives thereof, but excluding, the
use of the name "Golf Trust" and "Legends" and all derivatives thereof).
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"INTERIM ARRANGEMENT" shall have the meaning set forth in
SECTION 3.1(g).
"INVENTORY" shall mean the merchandise located in any pro shop or
similar facility located on the Golf Course and held for sale in the ordinary
course of business, including, without limitation, all golf clubs, bags and
balls and other golf equipment, all golf shirts, hats and shoes and other items
of clothing held for sale in and from the Golf Course's pro shop in the ordinary
course of business of operating said Golf Course pro shop, and all Food and
Beverages.
"LEASE" shall have the meaning set forth in the Recitals.
"LIQUOR APPLICATION" shall have the meaning set forth in
SECTION 3.1(g).
"LIQUOR LICENSE" shall have the meaning set forth in
SECTION 3.1(g).
"MASTER PURCHASE AGREEMENT" shall mean that certain Purchase Agreement
dated February 14, 2001, by and between Seller, as seller, and Tenant's
affiliate, Legends Golf Holding, LLC, as buyer, as amended by the Amendment
Agreement.
"PATRON PROPERTY INVENTORY" shall have the meaning set forth in
SECTION 3.2.
"PERMITS" shall mean all licenses, permits, certificates of occupancy,
authorizations and approvals used in or relating to the ownership, occupancy or
operation of any part of the Golf Course, including, without limitation, those
necessary for the sale and on-premises consumption of liquor and other alcoholic
beverages and food, if any. A list of all Permits is attached hereto as
EXHIBIT 1.1(C).
"PERSONAL PROPERTY" shall mean all FF&E, Inventory and Intangible
Property related to the Golf Course, other than the Excluded Assets.
"PROPERTY-CONVEYANCE" shall have the meaning set forth in the Recitals.
"PRORATION TIME" shall have the meaning set forth in SECTION 4.1(a).
"PURCHASE AND SALE AGREEMENT" shall have the meaning set forth in the
Recitals.
"REVENUES" shall mean all revenues of any kind or nature derived by
Tenant from the ownership, rental, use and/or operation of the Golf Course,
which revenues include, but are not limited to, (i) membership dues and
initiation fees, (ii) periodic membership dues, (iii) green fees, (iv) fees to
reserve a Tee Time, (v) guest fees, (vi) golf cart rentals and trail fees, (vii)
parking lot fees, (viii) locker rentals, (ix) fees for golf club storage, (x)
fees for the use of swim, tennis or other facilities, (xi) charges for range
balls, range fees, or other fees for golf practice facilities, (xii) revenues
derived from the operation of snack bars, restaurants, bars, catering functions,
and banquet operations, the sale of Inventory on the Golf Course, or photography
or other services (whether or not such revenue is directly derived by Tenant or
from amounts paid to Tenant by any lessee, subtenant, concessionaire, or
licensee), (xiii) fees or other charges paid for golf or tennis lessons, (xiv)
fees or other charges for fitness centers, (xv) forfeited deposits with respect
to any membership application, (xvi) transfer fees imposed on any member in
connection with the transfer of any membership interest, (xvii) fees or other
charges paid to
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Tenant by sponsors of golf tournaments at the Golf Course, (xviii) advertisement
or placement fees paid by vendors in exchange for exclusive use or name rights
at the Golf Course, (xix) fees received in connection with any golf package
sponsored by any hotel group, golf association, travel agency, tourist or travel
association or similar payments, and (xx) other golf income, food and beverage
income, golf merchandise and other income.
"SELLER" shall have the meaning set forth in the Recitals.
"SPACE LEASES" shall mean all pro shop, restaurant and other leases,
licenses, concessions and other agreements (written or oral) for the occupancy
of space at the Golf Course. A list of all Space Leases is attached hereto as
EXHIBIT 1.1(D).
"TEE TIMES" shall mean contracts or reservations for the use of the
Golf Course.
"TENANT" shall have the meaning set forth in the Recitals.
"TRANSFERRED PROPERTY" shall mean the Personal Property related to the
Golf Course owned (or leased) by Tenant.
"UTILITIES" shall mean public sanitary and storm sewers, natural gas,
telephone, public water facilities, electrical facilities and all other utility
facilities and services necessary for the operation and occupancy of the Golf
Course.
II. TRANSITION ISSUES: TERMINATION OF LEASE; ASSUMPTION OF CERTAIN
OBLIGATIONS
2.1 CLOSING: C1OSING DATE. The closing under this Agreement shall occur
contemporaneously with the Property-Conveyance (the "CLOSING"). The Closing
shall be held on the same date as the Closing Date in the Purchase and Sale
Agreement (the "CLOSING DATE").
2.2 ASSUMPTION OF OBLIGATIONS. Buyer, Seller and Tenant hereby agree
that, as of the Closing Date, (i) the Lease shall be terminated, and (ii) Tenant
shall have no remaining leasehold or any other ownership or possessory right or
interest in the Lease or Golf Course (other than the Excluded Assets and
Excluded Obligations) or right to occupy the Golf Course. Provided the Closing
occurs, Tenant waives any right that it may have to purchase the Golf Course
which may arise under the terms of the Lease, any other agreement, at law, in
equity, or otherwise. Tenant acknowledges that it will continue to be
responsible for any of Tenant's liabilities or obligations arising and accruing
under the Lease or related to the Golf Course prior to the Closing Date. Buyer
agrees to assume all of Tenant's rights, duties and obligations under the Golf
Course Contracts described in EXHIBIT 1.1(B), and Permits described in EXHIBIT
1.1(C), and Space Leases described in EXHIBIT 1.1(D), accruing from and after
the Closing Date, except as expressly excluded in EXHIBIT 2.2 attached hereto,
in which case Tenant shall continue to be responsible for such excluded
obligations (the "EXCLUDED OBLIGATIONS"). The assignment and assumption of such
rights and obligations (along with any assignable permits) shall be evidenced in
the Xxxx of Sale more particularly described in SECTION 2.3 below.
2.3 CONVEYANCE DOCUMENTS. At Closing, Tenant agrees to provide a
quitclaim xxxx of sale and assignment (the "XXXX OF SALE") in the form attached
hereto as EXHIBIT 2.3, which conveys all of Tenant's right, title and interest
in the Transferred Property to Buyer.
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2.4 AS-IS CONVEYANCE. The Transferred Property shall be transferred by
Tenant without representation or warranty, except as expressly provided in this
Agreement, and in its "AS-IS-WHERE IS" and with all faults condition on the date
of transfer.
III. TENANT'S COVENANTS
3.1 COVENANTS. Seller, Buyer and Tenant, as applicable, each covenant
and agree, in good faith, that prior to the Closing;
(a) COOPERATION. Tenant shall assist Seller and Buyer and their
respective agents, on or before Closing, in acquiring all information necessary
to enable Buyer's agents and Seller's agents to compute the prorations described
in ARTICLE IV below.
(b) NO SALES OUTSIDE OF THE ORDINARY COURSE. Tenant will not sell,
exchange, assign, transfer, convey, lease, encumbrance, lend or otherwise
dispose of all or any part of the Transferred Property or any interest therein
except in the ordinary course of business, without the prior approval of Buyer,
which approval may be withheld in Buyer's sole and absolute discretion.
(c) NO AMENDMENTS. Tenant (i) will not amend in any material
respect or terminate (prior to the expiration of the applicable term) any Space
Leases, Golf Course Contracts or Permits without the prior approval of Buyer,
which approval may be withheld in Buyer's sole and absolute discretion; (ii)
will pay all charges prior to delinquency under such agreements, (iii) will
perform all of its obligations under such agreements; and (iv) will maintain its
existing insurance on the Golf Course, or if any policies thereof shall expire
prior to the Closing Date, will obtain renewals or reasonable replacements
thereof, until the Closing Date.
(d) NO NEW CONTRACTS. From and after the Effective Date until the
Closing Date, Seller and Tenant will not enter into any contracts, licenses,
easements or other agreements relating to the Transferred Property or operation
of the Golf Course which will obligate Buyer (including, without limitation, the
purchase of any Inventory that Buyer is obligated to purchase or otherwise incur
the expense for pursuant to the terms of this Agreement) or be a charge or lien
against the Transferred Property after the Closing Date without prior written
approval of Buyer, except in the ordinary course of business or which are
terminable without penalty on no more than thirty (30) days notice.
(e) GO1F COURSE OPERATED IN THE ORDINARY COURSE. Tenant will cause
the Golf Course to be operated and maintained in the same manner in which it is
being operated and maintained as of the Effective Date, which undertaking
includes, but is not limited to, (i) watering, fertilizing and otherwise
maintaining the tee boxes, fairways and greens in at least as good a condition
as each was maintained as of the Effective Date, (ii) maintaining levels of
Inventory (including, but not limited to, Food and Beverages) of such quantities
and quality as are reasonably necessary to operate the Golf Course in a manner
consistent with those levels present as of the Effective Date, and (iii) taking
Tee Times in the ordinary course of business.
(f) ASSESSMENTS. Upon Tenant's receipt of written notice thereof,
Tenant will promptly provide Buyer with notice of any actual or proposed change
in the assessed tax value of the Golf Course or any portion of the Golf Course
(including any tentative or preliminary
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assessment) and of the institution or proposed institution of any proceeding
(whether formal, informal, judicial or administrative) relating to any such
change or proposed change in the tax valuation of the Golf Course. Tenant will
not take any action with respect to the contesting and/or resolution of the
taxable assessed value of the Golf Course without the prior written consent of
Buyer, which consent may be withheld by Buyer in its sole and absolute
discretion.
(g) LIQUOR LICENSE. Tenant will cooperate in all reasonable
respects (which shall include, without limitation, supplying information known
to Tenant and execution of such reasonable documents as may be legally required)
with Buyer in connection with the application for transfer of any existing (as
of the Closing Date) alcoholic beverage licenses held by Tenant or its agent
(other than Seller or its agents) in connection with its operation of the Golf
Course (the "LIQUOR LICENSE") to Buyer or Buyer's application for a new Liquor
License (as the case may be, the "LIQUOR APPLICATION"). Buyer shall diligently
and in good faith proceed with the Liquor Application to secure a Liquor License
to be effective from and after the Closing Date (if possible). If Buyer is
unable to obtain the transfer of the Liquor License or to obtain a new Liquor
License prior to the Closing, then so long as Buyer has diligently and in good
faith proceeded with the Liquor Application and its efforts to secure a Liquor
License prior to Closing (if it is possible in the jurisdiction where the Golf
Course is located to obtain such a Liquor License prior to the Closing), then on
the Closing Date Tenant and Buyer shall enter into an interim arrangement (the
"INTERIM ARRANGEMENT") whereby Tenant shall operate the liquor concessions, if
any, at the Golf Course on behalf of Buyer pending the transfer or issuance of
the Liquor License, if any, to Buyer, and Buyer shall indemnify, defend and hold
Tenant harmless from and against any and all claims, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees and costs)
arising in connection with such operation. The Interim Arrangement would be
structured in the form of either a short-term management agreement or a
short-term lease, as may be customary in the jurisdiction where the Golf Course
is located, with Buyer as landlord or owner and Tenant (or the party that
currently holds the Liquor License, as applicable) as tenant or manager, as
applicable, cancelable at any time by Buyer and, in the case of a management
agreement, with the fee payable to Tenant thereunder adequate to reimburse
Tenant for the reasonable out-of-pocket costs of managing the purchase, sale and
service of alcoholic beverages at the Golf Course or, in the case of a
short-term lease, with the rent payable thereunder equal to all profits relating
to the service of alcoholic beverages at the Golf Course (I.E., after deducting
the reasonable out-of-pocket costs of managing the purchase, sale and service of
alcoholic beverages at the Golf Course), all as further described in a lease
agreement to be mutually agreed upon by Buyer and Tenant prior to the Closing.
The term of the Interim Arrangement shall not exceed one hundred eighty (180)
days, such that the Interim Arrangement shall terminate on or before the date
that is one hundred eighty (180) days after the Closing Date. In any event, as
of or after the Closing Date, at such time as Buyer instructs Tenant in writing
to do so, Tenant shall execute such written agreements, statements and/or forms
as may be reasonably required to terminate, assign or transfer Tenant's Liquor
License. The terms of this Section shall survive the Closing Date.
3.2 GUEST PROPERTY IN TENANT'S POSSESSION ON CLOSING DATE. Property of
guests and patrons of the Golf Course in Tenant's care, possession or control
(E.G., golf clubs) on the Closing Date shall be handled in the following manner:
All guest baggage and other guest property checked, and left in the possession,
care and control of Tenant shall be listed in an inventory to be prepared in
duplicate and signed by Tenant's and Buyer's representatives on the
6
Closing Date (such property, "PATRON PROPERTY INVENTORY"). Buyer shall be
responsible from and after the Closing Date for all Patron Property Inventory,
and Buyer agrees to indemnify and save and hold Tenant harmless from and against
any claim arising out of or with respect to the Patron Property Inventory and in
connection with events arising after the Closing.
IV. CLOSING MATTERS
4.1 ADJUSTMENT AND PRORATIONS. The revenues and expenses of the Golf
Course shall be apportioned between Tenant and Buyer, in good faith, in
accordance with the terms and provisions below. For purposes of making such
apportionments, Inventory (including, without limitation, Food and Beverages)
shall be valued at cost to Tenant (as evidenced by paid invoices or other
reasonable evidence). Notwithstanding anything to the contrary stated or implied
herein, Buyer acknowledges and agrees that Tenant may postpone and/or contest
payment of any operating expense or trade account for which Tenant is
responsible which is the subject of a bona fide dispute. Tenant agrees to
indemnify, defend and hold Buyer harmless from and against any claims or other
matters relating to such operating expenses and trade accounts.
(a) TAX PRORATIONS. Real estate taxes and personal property taxes,
and other assessments payable in installments (including, without limitation,
municipal improvement liens), assessed against or imposed with respect to the
Golf Course shall be prorated as of 12:01 a.m. on the Closing Date (the
"PRORATION TIME"). If the exact amount of any taxes or assessments is not known
on or prior to the Closing Date, the proration will be based on the prior year's
taxes and shall be adjusted after the Closing Date between Tenant and Buyer once
actual figures become available, as provided in SUBSECTION (K) below. As between
Tenant and Buyer, Tenant shall be responsible for all such taxes and assessments
accruing prior to the Proration Time, and Buyer shall be responsible for all
such taxes and assessments accruing from and after the Proration Time.
(b) UTILITIES PRORATIONS. All waste and garbage and other
Utilities charges and all other similar charges with respect to the Golf Course
shall be prorated as of the Proration Time. As between Tenant and Buyer, Tenant
shall be responsible for the cost of all Utilities furnished to the Golf Course
accruing prior to the Proration Time and Buyer shall assume payment of said
Utilities from and after the Proration Time.
(c) PRORATION OF CONTRACTS. Amounts payable under contracts that
are assigned to Buyer in connection with the Closing shall be prorated as of the
Proration Time. Tenant shall pay and be responsible for all costs and charges
accrued under such agreements for the period accruing prior to the Proration
Time, and GTA and/or Buyer shall pay and be responsible for all costs and
charges accruing under such agreements for the period accruing from and after
the Proration Time. On the Closing Date, Buyer shall reimburse Tenant for the
pro rata costs under any such agreements which accrue from and after the
Proration Time and which were actually paid by Tenant, and Tenant shall pay to
Buyer the pro rata costs under any such agreements which accrued during the
period prior to the Proration Time and which were not previously paid by Tenant.
7
(d) SECURITY DEPOSITS. Any sums held by Tenant as a security
deposit, if any, due to the depositor, together with interest thereon, for the
rental, use of or any services relating to the Golf Course (or any portion
thereof), including, without limitation, prepaid and unearned Tee Time, banquet,
outing and other deposits for periods after the Proration Time, shall be paid
over and assigned to Buyer on the Closing Date. As between Buyer and Tenant,
Buyer shall assume all obligations of Tenant with respect to such security
deposits actually assigned over to Buyer on the Closing Date. A non-exclusive
list of all deposits described in this SUBSECTION (D) along with a list of any
scheduled banquets or outings is attached hereto as EXHIBIT 4.1.
(e) PREPAID REVENUES. All prepaid Revenues pertaining to the Golf
Course shall be prorated as of the Proration Time. Buyer shall have a right to
and shall receive an amount equal to any Revenues relating to the Golf Course
for periods accruing from and after the Proration Time and actually collected by
Tenant prior to the Closing Date. The right to collect and keep such Revenues
relating to the Golf Course from and after the Closing Date (whether such
Revenues apply to periods prior to or after the Proration Time) shall be
assigned to and assumed by Buyer on the Closing Date, and Tenant shall promptly
remit to Buyer any such Revenues received by Tenant on or after the Closing
Date.
(f) ACCOUNTS RECEIVABLE. Accounts receivable of the Golf Course
(meaning any and all Revenues accrued but unpaid as of the Closing Date) shall
be adjusted as follows:
(i) On the Closing Date, Buyer shall pay to Tenant an
amount equal to ninety percent (90%) of the amount of
all accounts receivable aged ninety (90) days or less
as of the Closing Date. Tenant shall not receive any
credit for accounts receivable aged more than ninety
(90) days. On such payment, Tenant shall take no steps
to collect any accounts receivable relating to the Golf
Course, and Tenant's entire right, title and interest
in and to all accounts receivable relating to the
rental, use or operation of the Golf Course (including,
without limitation, accounts receivable aged more than
ninety (90) days) shall be assigned to Buyer, and
Tenant hereby covenants and agrees to execute and
deliver to Buyer all instruments and documents
reasonably requested by Buyer in order to effectively
assign Tenant's rights in and to such accounts
receivable.
(ii) For a period of twelve (12) months after the Closing
Date, Buyer shall have access, upon two (2) business
days' advance notice, to Tenant's books and records
relating to the Golf Course to verify the accuracy of
Tenant's accounting for the accounts receivable and to
verify the existence and accuracy of Buyer's claim
therefor.
(g) CASH; NEGOTIABLE INSTRUMENTS. All cash and negotiable
instruments on hand with respect to the Golf Course as of the Proration Time
shall be retained by Tenant.
(h) INVENTORIES. The Inventory (including, without limitation,
Food and Beverages) for the Golf Course shall be maintained in accordance with
the requirements of the
8
Lease for the Golf Course through the Closing Date and shall be subject to the
applicable terms and provisions of such Lease. All Inventory for the Golf Course
shall be assigned to Buyer on the Closing Date with appropriate proration credit
or other adjustment to Tenant provided therefor (as evidenced by paid invoices
or other reasonable evidence).
(i) COSTS AND EXPENSES. Any other costs, expenses or payables
(including, without limitation, any and all accounts payable) accrued and
outstanding with respect to the Golf Course as of the Proration Time shall be
either paid by Tenant, or Tenant shall pay to Buyer an amount equal to such
costs, expenses or payables that are not so paid as of the Proration Time. On
the Closing Date, Buyer shall pay to Tenant an amount equal to any other costs,
expenses or payables (including, without limitation, accounts payable) accruing
with respect to the Golf Course during the period from and after the Proration
Time but actually paid by Tenant prior to the Proration Time.
(j) GENERAL PRORATION PROVISIONS. All prorations shall be made on
the basis of the actual number of days of the month which shall have elapsed as
of the Closing Date and based upon the actual number of days in the month and a
three hundred sixty-five (365) day year. Tenant, Seller and Buyer shall cause
their respective representatives to make such inventories, examinations and
audits of the Golf Course, and of the books and records of the Golf Course, as
the parties may deem necessary to make the adjustments and prorations required
under this SECTION 4.1. Based upon such audits and inventories, Seller will
prepare (with the assistance and co-operation of Tenant and Buyer) and deliver
no later than four (4) business days prior to the Closing Date the closing
statements setting forth the foregoing prorations and adjustments (the "Closing
Statements"). The Closing Statements shall contain Seller's best good faith
estimate of the amounts of the items requiring prorations and adjustments
pursuant to this SECTION 4.1 above. Tenant and Buyer shall have the right to
approve the Closing Statements, which approval shall not be unreasonably
withheld or delayed. The amounts set forth on the Closing Statements shall be
the basis upon which the prorations and adjustments provided for herein shall be
made on the Closing Date. The net proration amount shown on the Closing
Statements shall be paid, in cash, by Buyer or Tenant, as the case may be, to
the other on the Closing Date.
(k) POST-CLOSING DATE ADJUSTMENTS. Within ninety (90) days
following the Closing Date, Tenant, Seller and Buyer will cooperate in preparing
a final report setting forth the final determination of all the items included
on the Closing Statements. In the event that, at any time within the said ninety
(90) day period, either party discovers any items that should have been included
on the Closing Statements but were omitted therefrom, such items shall be
adjusted in the same manner as if their existence had been known at the time of
the preparation of the Closing Statement. The foregoing limitation shall not
apply to any item which, by its nature, cannot be finally determined within the
time period specified (such as real property taxes); PROVIDED THAT, no further
adjustments shall be made in any event after March 31, 2002. The terms and
provisions of this SECTION 4.1 shall survive the Closing Date until March 31,
2002.
4.2 STAFF.
(a) Tenant shall be responsible for paying all wages and fringe
benefits (including, but not limited to, accrued vacation pay, sick pay and
payroll taxes) through the Closing Date, and to the extent that any such Golf
Course Employees' wages and/or fringe benefits are not so paid by Tenant prior
to the Closing, then such wages and/or fringe
9
benefits for Golf Course Employees who are rehired by Buyer on or after the
Closing, upon such notice as is required below, shall be apportioned as provided
in this Agreement below. Specifically, (i) wages accrued as of the Closing Date
shall be paid by Tenant on or before the Closing Date as if the Golf Course
Employees to which such wages relate were terminated as of the Closing Date and
not rehired by Buyer (I.E., whether or not the Golf Course Employee is hired by
Buyer at or after the Closing), (ii) fringe benefits (including, but not limited
to, accrued vacation pay, sick pay and payroll taxes) for any Golf Course
Employees who are rehired by Buyer shall be calculated and prorated for the
benefit of Buyer as of the Closing Date and Buyer shall assume the obligation to
pay such fringe benefits thereafter (E.G., if a Golf Course Employee who is
rehired by Buyer were to receive seven (7) days of vacation pay per year but the
right to receive such seven (7) days of vacation pay did not vest until after
one (1) year of service and such Golf Course Employee had only been employed for
six (6) months, an amount shall be prorated and credited to Buyer equal to
one-half (1/2) of such seven (7) days of vacation pay), and (iii) fringe
benefits (including, but not limited to, accrued vacation pay, sick pay and
payroll taxes) for any Golf Course Employees who are NOT rehired by Buyer and
that are vested as of the Closing Date shall be calculated and paid by Tenant
prior to the Closing Date, and Buyer shall have no obligation or liability of
any nature whatsoever with respect thereto. For purposes of determining the
proration credit to be given to Buyer hereunder, Buyer shall provide Tenant with
a written list of all Golf Course Employees that Buyer will rehire on or after
the Closing Date no later than three (3) business days prior to the Closing.
(b) Tenant shall terminate all Golf Course Employees as of the
Closing. Buyer shall, before the Closing, consider in good faith hiring each
Golf Course Employee desiring to be hired as of the Closing and shall provide
Tenant with the list of Golf Course Employees it intends to rehire as provided
in the last sentence of SUBSECTION (A) above. Tenant agrees to cooperate in good
faith with Buyer so that Buyer may distribute a letter or other appropriate
forms to Golf Course Employees to determine if each such employee wishes to
apply to work for Buyer at the Golf Course after the Closing Date. Such letter
or other forms may request that any Golf Course Employee wishing to be
considered for employment agree to allow Buyer to review the Golf Course
Employee's personnel file. If Buyer requests access to the personnel files of
the Golf Course Employees, Tenant agrees to allow Buyer to review such personnel
files, subject to each Golf Course Employee's written consent with Tenant's
approval of the form thereof, and to permit the transfer to Buyer of the
personnel files and medical files of any Golf Course Employee offered employment
by Buyer, again subject to the written consent of each affected Golf Course
Employee. Tenant shall use its best efforts to have dismissed with prejudice,
prior to the Closing Date, any and all litigation existing as of or arising
after the Effective Date involving past or present Golf Course Employees and/or
union or labor disputes. In the event that Tenant is not successful in causing
the dismissal of such litigation prior to the Closing Date, then Tenant shall
indemnify and hold Buyer harmless from and against any loss, damage, liability,
claim, cost or expense (including, without limitation, reasonable attorneys'
fees) that may be incurred by, or asserted against, Buyer after the Closing
which involves any matter relating to a past or present Golf Course Employee
and/or union or labor disputes concerning acts or omissions occurring prior to
the Closing Date; PROVIDED, HOWEVER, Buyer shall have the sole right, at Buyer's
election, after the Closing Date, to supervise and direct any such litigation
and to use counsel of Buyer's choosing (whether or not counsel for such
litigation had been retained by Tenant prior to the Closing Date). Tenant shall
be solely responsible for
10
compliance with the Worker Adjustment and Retraining Act ("WARN ACT") as well as
any applicable state plant closing or similar worker displacement law, if
applicable, and Tenant shall indemnify, defend and hold Buyer harmless from and
against any loss, damage, liability, claim, cost or expense (including, without
limitation, reasonable attorneys' fees) that may be incurred by, or asserted
against, Buyer as a result of Tenant's failure to comply with the WARN ACT or
any applicable state plant closing or similar worker displacement law. Nothing
in this Agreement shall require (a) Buyer to assume any obligations under any
employee benefit plans currently maintained for Golf Course Employees unless
otherwise required by law or (b) Buyer or its management company to continue to
employ any Golf Course Employee hired by either of them for any specified period
of time after the Closing Date.
V. CONDITIONS PRECEDENT
5.1 CONDITIONS PRECEDENT. This Agreement is contingent upon the
Closing. If the Property-Conveyance described herein does not occur, then this
Agreement is null and void.
VI. MISCELLANEOUS PROVISIONS
6.1 CONSTRUCTION AND INTERPRETATION OF AGREEMENT. This Agreement is to
be performed in the State of Florida and shall be governed by and construed in
accordance with the laws of the State of Florida. Any action brought to enforce
or interpret this Agreement shall be brought in the court of appropriate
jurisdiction in the county in which the Golf Course is located. Should any
provision of this Agreement require arbitration or judicial interpretation, it
is agreed that the arbitrator or court interpreting or considering same shall
not apply the presumption that the terms hereof shall be more strictly construed
against a party by reason of the rule or conclusion that a document should be
construed more strictly against the party who itself or through its agent
prepared the same. It is agreed and stipulated that all parties hereto have
participated equally in the preparation of this Agreement and legal counsel was
consulted by each party before the execution of this Agreement. In the event of
any litigation or dispute between the parties arising out of or in any way
connected with this Agreement, resulting in any litigation, arbitration or other
form of dispute resolution proceeding, then the prevailing party in such
litigation, arbitration or other dispute resolution proceeding shall be entitled
to recover its costs of prosecuting and/or defending same, including, without
limitation, reasonable attorneys' fees.
6.2 AMENDMENT AND WAIVER. This Agreement may not be amended or modified
in any way except by an instrument in writing executed by all parties hereto;
provided, however, any of Tenant, Seller, or Buyer may, in writing, (i) waive
any inaccuracies and representations by the other to such party so waiving
contained in this Agreement, (ii) waive compliance by the other with any of the
covenants contained in this Agreement for the benefit of such party so waiving,
and (iii) waive the satisfaction of any condition that is precedent or
subsequent to the performance by the party so waiving of any of its obligations
under this Agreement.
6.3 NOTICES. Any notice, communication, request, reply or advice
(collectively, "NOTICE") provided for or permitted by this Agreement to be made
or accepted by
11
either party must be in writing. Notice may, unless otherwise provided herein,
be given or served by depositing the same in the United States mail, postage
paid, registered or certified, and addressed to the party to be notified, with
return receipt requested; or by delivery by overnight courier, or by facsimile
transmission (with a copy of the facsimile and printed confirmation sent within
one (1) business day after faxing via United States mail, postage paid,
registered or certified, and addressed to the party to be notified, with return
receipt requested). Notice deposited in the mail in the manner hereinabove
described shall be effective three (3) business days after such deposit. Notice
by overnight courier shall be effective one (1) business day after deposit with
the courier service. Notice given by facsimile transmission shall be effective
on the business date the facsimile is electronically delivered (if the follow-up
copy is sent via U.S. mail and otherwise the same shall be effective three (3)
business days after the follow-up is deposited in the U.S. mail). For the
purposes of Notice, the addresses of the parties shall be:
Seller: Golf Trust of America, L.P.
00 Xxxxx Xxxxx'x Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Mr. W. Xxxxxxx Xxxxx, XX
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
O'Melveny & Xxxxx, LLP
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
Buyer:
--------------------------
--------------------------
--------------------------
--------------------------
Attn: _____________________
Tel: (___) __________
Fax: (___) __________
12
with a copy to:
--------------------------
--------------------------
--------------------------
Attn: _____________________
Tel: (___) __________
Fax: (___) __________
Tenant: Legends at Bonaventure, Inc.
c/o The Legends Group
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Parker, Poe, Xxxxx & Xxxxxxxxx, L.L.P.
Three First Union Center
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx X. Xxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
The parties shall have the right from time to time to change
their respective addresses for notice by at least five (5) days'
written notice to the other party.
6.4 GOVERNING DOCUMENT. This Agreement shall govern in the event of any
inconsistency between this Agreement and any other document or instrument
executed or delivered pursuant hereto or in connection herewith (including,
without limitation, the Master Purchase Agreement).
6.5 ASSIGNMENT OF TENANT'S INTEREST TO SELLER. The parties hereto
acknowledge and agree that, prior to the Closing hereunder, Seller may acquire
the interest of Tenant in and to the Golf Course pursuant to the Master Purchase
Agreement (in which event the Lease shall be terminated), notwithstanding
anything to the contrary stated or implied in this Agreement. Each of the
parties hereto hereby consents to such transfer of Tenant's interest to
13
Seller; PROVIDED THAT, such transfer shall be subject to this Agreement. Upon
such transfer to Seller, Seller shall assume the rights and obligations of
Tenant under this Agreement, and the transactions contemplated in this Agreement
shall proceed as contemplated herein, and Seller shall faithfully perform
Tenant's obligations hereunder and assume the role of Tenant hereunder from and
after the date that it acquires Tenant's interest in and to the Golf Course.
Seller and Buyer shall release Tenant from all obligations and liabilities of
"Tenant" accruing under this Agreement from and after the date that Tenant's
interest in and to the Golf Course is transferred to Seller.
14
IN WITNESS WHEREOF, the parties have executed this Agreement
effective on the date first written above.
"SELLER"
GOLF TRUST OF AMERICA, L.P.,
a Delaware limited partnership
By: GTA GP, Inc., a Maryland corporation
and its general partner
By:
------------------------
Name: W. Xxxxxxx Xxxxx, XX
Title: President and Chief Executive
Officer
[Signatures continue.]
15
"BUYER"
[INSERT SIGNATURE BLOCK]
[Signatures continue.]
16
"TENANT"
LEGENDS AT BONAVENTURE, INC.,
a Florida corporation
By:
---------------------------
Name:
---------------------------
Title:
--------------------------
17
SCHEDULE OF EXHIBITS
EXHIBIT 1.1(A) List of Excluded Assets
--------------
EXHIBIT 1.1(B) List of Golf Course Contracts
--------------
EXHIBIT 1.1(C) List of Permits
--------------
EXHIBIT 1.1(D) List of Space Leases
--------------
EXHIBIT 2.2 Excluded Golf Course Contracts, Space Leases, and Permits
-----------
EXHIBIT 2.3 Form of Quit-Claim Xxxx of Sale
-----------
EXHIBIT 4.1 List of Deposits and Schedule of Banquets and Outings
-----------
EXHIBIT 1.1(a)
to
Transition Agreement
LIST OF EXCLUDED ASSETS
EXHIBIT 1.1(b)
to
Transition Agreement
LIST OF GOLF COURSE CONTRACTS
EXHIBIT 1.1(c)
to
Transition Agreement
LIST OF PERMITS
EXHIBIT 1.1(d)
to
Transition Agreement
LIST OF SPACE LEASES
EXHIBIT 2.2
to
Transition Agreement
EXCLUDED GOLF COURSES, CONTRACTS, SPACE LEASES, AND PERMITS
None.
EXHIBIT 2.3
to
Transition Agreement
QUIT CLAIM XXXX OF SALE AND ASSIGNMENT
WHEREAS, by deed of even date herewith, Golf Trust of America, L.P., a
Delaware limited partnership ("SELLER") conveyed to ____________________________
("PURCHASER") those certain tracts of land, known commonly as Bonaventure Golf
Club, more particularly described in EXHIBIT A attached hereto as a part hereof,
together with all improvements located thereon (the "PROPERTY");
WHEREAS, Seller has previously entered into a lease of the Property to
Legends at Bonaventure, Inc., a Florida corporation ("TENANT") and Tenant is
presently in possession of and is responsible for operating the Bonaventure Golf
Club; and
WHEREAS, in connection with the above-described conveyance, Tenant has
agreed to provide a quit claim conveyance to Purchaser of certain items of
personal property as enumerated in the Transition Agreement dated
______________, by and among Seller, Purchaser and Tenant (the "AGREEMENT")
including, without limitation, the items hereinafter described.
NOW THEREFORE, in consideration of the receipt of TEN AND NO/100
DOLLARS ($10.00) and other good and valuable consideration paid in hand by
Purchaser to Tenant, the receipt and sufficiency of which are hereby
acknowledged, Tenant has, without representation or warranty except as set forth
in the Agreement, GRANTED, CONVEYED, CONTRIBUTED, TRANSFERRED, SET OVER and
DELIVERED and by these presents does hereby GRANT, CONTRIBUTE, TRANSFER, SET
OVER and DELIVER to Purchaser all right, title and interest of Tenant (to the
extent owned or leased by Tenant and to the extent assignable by Tenant) in and
to all Transferred Property (as such term is used in the Agreement).
To have and to hold, all and singular, the Transferred Property, unto Purchaser
forever.
Executed this ____ day of _______________, 2001.
"TENANT"
LEGENDS AT BONAVENTURE, INC.,
a Florida corporation
By:
------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
EXHIBIT A
to
Exhibit 2.3
to
Transition Agreement
DESCRIPTION OF PROPERTY
EXHIBIT 4.1
to
Transition Agreement
LISTS OF DEPOSITS AND SCHEDULE OF BANQUETS AND OUTINGS
EXHIBIT H
BONAVENTURE PARCEL
PRORATIONS AND ACCOUNTING ADJUSTMENTS
AS OF JULY 26, 2001
Exhibit G-1
BONAVENTURE
Closing Statement
All allocations calculated as of the close of business on July 26, 2001
Credits to Credits to
GTA Legends
--- -------
Xxxxx Cash Balances $ -- $ 4,050
Accounts Receivables $ -- $151,700
Inventory:
Pro Shop $ -- $ 66,959
Food & Beverage $ -- $ 16,128
Maintenance Inventory-estimated $ -- $ 3,500
Prepaid Leases-Textron Financial Corp $ -- $ 4,924
Prepaid Leases- The Associates $ -- $ 354
Prepaid Leases- Xxxx Deere Credit $ -- $ 9,527
Accounts Payable $ 40,757 $ --
Prepaid Green Fees $ 5,200 $ --
2001 Property Taxes $149,009 $ --
-----------------------------------------------------------------
TOTALS: $194,966 $257,142 $(62,176)
