EXHIBIT 16.1
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AGREEMENT
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THIS AGREEMENT (the "Agreement") is made and executed this ____ day
of _____, 2006, by and between ARVIDA/JMB PARTNERS (the "Partners"), a
Florida general partnership, successor in interest to Arvida Corporation
("Arvida"), a Delaware corporation, and INTERCONN PONTE VEDRA COMPANY,
L.L.C. (the "Owner"), a Delaware limited liability company.
R E C I T A L S:
(A) Owner is the owner of those certain real properties
(collectively the "Property") more particularly described in those certain
deeds of conveyance from Arvida or Partners to (i) Resort Holdings I, Ltd.,
recorded in Official Records Book 683, beginning at Page 167, of the Public
Records of St. Xxxxx County, Florida (the "Public Records"), (ii) Resort
Holdings II, Ltd., recorded in Official Records Book 683, beginning at Page
281 of the Public Records, and (iii) PV Resorts, Inc., recorded in Official
Records Book 600, beginning at Page 432 of the Public Records
(collectively, the "Deeds"), which Property is known as the Sawgrass
Marriott Resort & Spa, and which consists of a full service hotel, hotel
villas, a spa, ballroom, restaurants, bar, swimming pools, tennis courts,
oceanfront club with amenities, parking garage and parking lots and other
ancillary uses and facilities (collectively, the "Hotel Complex"); and
(B) Among other matters, the lands constituting the Property, in
whole and in part, are subject to certain restrictive covenants contained
in:
(i) that certain Declaration of Covenants for the Player's
Club at Sawgrass as recorded in Official Records Book
498, at Page 508 of the Public Records (the "Master
Declaration"),
(ii) that certain Declaration of Restrictions and
Supplementary Declaration of Covenants for The Players
Club at Sawgrass, recorded in Official Records Book 683,
at Page 142 of the Public Records (the "Hotel
Declaration"),
(iii) that certain Declaration of Restrictions and
Supplementary Declaration of Covenants for the Players
Club at Sawgrass, recorded in Official Records Book 683,
at Page 256, Official Records Book 828, at Page 1355,
both of the Public Records (the "Residential
Declaration"),
(iv) Amendment to Declaration of Restrictions and
Supplementary Declarations of Covenants (the "Declaration
Amendment"), recorded in Official Records Book 2326, at
Page 999 of the Public Records (the Master Declaration,
the Hotel Declaration and the Residential Declaration, as
amended from time to time, including by the Declaration
Amendment, shall hereafter be collectively referred to as
the "Declarations"),
(a) the Deeds,
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(b) provisions, if any, which may have survived the
closing and sale contemplated in that certain
Agreement for Sale and Purchase dated March 13,
1985, by and between Arvida and Xxxxxx Corporation,
as subsequently amended and assigned, a Memorandum
of which is recorded at Official Records Book 683,
Page 162, Public Records of St. John's County,
Florida ("Hotel Contract");
(c) provisions, if any, which may have survived the
closing and sale contemplated in that certain
Agreement for Sale and Purchase dated March 13,
1985, by and between Arvida and the Xxxxxx
Corporation, as subsequently amended and assigned,
a Memorandum of which is recorded at Official
Records Book 683, Page 276, and Modification of
License and Agreement, a Memorandum of which is
recorded at Official Records Book 828, Page 1375,
Public Records of St. John's County, Florida
("Residential Contract");
(d) provisions, if any, which may have survived the
closing and sale contemplated in that certain
Agreement for Sale and Purchase dated October 8,
1997, by and between Arvida and PV Resort, Inc.
relating to the oceanfront Cabana Club complex (the
"Cabana Club"), a Memorandum of which is recorded
at Official Records Book 1274, Page 1709, Public
Records of St. John's County, Florida, (the "Cabana
Club Contract") (the Hotel Contract, the
Residential Contract and the Cabana Club Contract
shall hereafter be collectively referred to as the
"Contracts");
(e) that certain Use, Access and Operating Agreement
dated September 3, 1985 and amended by that certain
First Modification of Use, Access and Operating
Agreement, dated August 9, 1989 as is referenced in
Memorandum of Use, Access and Operating Agreement
recorded in Official Records Book 683, beginning at
Page 184, as amended in Official Records Book 828,
beginning at Page 1337, Partial Assignment and
Assumption of Rights and Obligations, under the
Use, Access and Operating Agreement referred to in
Memorandum of Partial Assignment and Assumption of
Rights and Obligations recorded in O. R. Book 779,
Page 934, all of the Public Records ("Use
Agreement"); and
(f) Cabana Club Agreement dated November 3, 1997, as
referenced in Memorandum of Cabana Club Agreement
recorded in Official Records Book 1274, beginning
at Page 1709, Public Records of St. John's County,
Florida, as amended by unrecorded Agreement dated
September 14, 2004 ("CC Agreement"), and those
portions of the License Agreement dated
September 3, 1985 and Addendum to License Agreement
dated December 12, 1985 which purport to grant to
Arvida any control or right of approval of the use
of the real property described therein ("License
Agreement") (the Use Agreement, the CC Agreement,
and the License Agreement shall hereafter be
collectively referred to as the "Agreements").
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(v) Partners previously has assigned rights reserved to
Partners under the Declarations or similar documents as
recorded in among the Public Records, as evidenced by (i)
that certain Assignment of Architectural Review Rights
from Partners to Sawgrass Players Club Association, Inc.,
a Florida not-for-profit corporation (the "Master
Association"), dated December 17, 2001, relating to the
lands described in the Hotel Declaration, (ii) that
certain Assignment of Architectural Review Rights from
Partners to the Association, dated December 24, 2001,
relating to the lands described in the Residential
Declaration, and (iii) any other such assignments of
rights which previously may have made by Arvida or
Partners, other than to their affiliates, which are
evidenced by documents recorded in the Public Records of
St. John's County, Florida, or to which Owner or its
predecessor(s) was a party or to which they otherwise
consented in writing (collectively the "Previously
Assigned Rights").
(vi) Owner desires to obtain the release of, and Partners is
willing to release, all rights, covenants and other
restrictions which were reserved to or for the benefit of
Arvida (and may be held by Partners as its successor in
interest) which are imposed upon and which encumber any
of the lands constituting the Property, in whole and
part, by virtue of the Contracts, the Deeds, the
Agreements or similar documents.
NOW, THEREFORE, Partners hereby declares and agrees as follows:
1. RECITALS. The Recitals set forth above are incorporated herein
for all purposes.
2. RELEASE OF RIGHTS. Partners, on behalf of itself, its
predecessors and affiliates, hereby agrees to release, discharge and
disclaim Partners' entire right, title and interest, if any, in and to all
rights, reservations, restrictions and other covenants affecting any of the
lands constituting the Property, in whole and part, which have been imposed
thereon by, or continue to exist for the benefit of Partners (or by Arvida
as its predecessor in interest), by virtue of the Declarations, Contracts,
the Deeds, the Agreements (except as set forth in Section 4 hereof) or
other similar documents (collectively and individually, the "Released
Rights"), pursuant to the terms of that certain Disclaimer, Release and
Waiver of Rights, in the form attached hereto as EXHIBIT A (the
"Disclaimer").
3. RELEASE PRICE. As consideration for the release by Partners of
the Released Rights, Owner agrees to pay to Partners the sum (in the
aggregate, the "Release Price") of (a) Six Million Eight Hundred Thousand
and No/100 Dollars ($6,800,000.00), plus (b) the reasonable and customary
fees and costs of Partners' attorneys, White & Case, LLP, incurred by
Partners in connection with the negotiation and Closing of the transaction
which is the subject of this Agreement, including negotiation and
preparation of this Agreement and the other documents to be executed and
delivered in connection herewith.
4. RETAINED RIGHTS. Notwithstanding the foregoing, nothing herein
contained shall in any way disclaim, relinquish, waive or alter the
Partners' retained rights with respect to (i) the name "Sawgrass" or any
variation thereof, the ownership of which shall continue to be the sole and
exclusive property of Partners (which may be used by the Owner and its
successor and assigns only pursuant to separate licensing agreements which
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may be negotiated from time to time, subject to the terms thereof), and
(ii) any existing, unexpired membership rights in the Cabana Club facility
or hotel room use rights at the Hotel Complex which, in both cases, shall
not be affected by this Release and shall remain in full force and effect
in accordance with the relevant terms and provisions of the Cabana Club
Contract and the Cabana Club Agreement or similar document pursuant to
which such rights were created.
At, and as a condition of, Closing (a) Partners and Owner will
execute and deliver an Amended and Restated License Agreement (the "Amended
License") in the form attached hereto as Exhibit B, (b) Partners will
deliver a written consent to assignment of the Amended License by Owner to
RQB Development, LP, a Delaware limited partnership and RQB Resort, LP, a
Delaware limited partnership (collectively, the "Buyer"), contemporaneously
with conveyance of the Hotel Complex by Owner to Buyer, and (c) Partners
and Owner will execute and deliver an Amended and Restated Cabana Club
Agreement (the "Amended Club Agreement") in the form attached hereto as
Exhibit C, and execute and record in the Public Records of St. John's
County, Florida, the Memorandum of Amended & Restated Cabana Club Agreement
(the "Memorandum") for which provision is made therein.
5. DELIVERIES.
(a) TIME, MANNER AND PLACE. Exchange of the instruments and funds
specified below will occur on June 30, 2006 (the "Exchange Date"), either
(a) at 10:00 a.m. (central) at Partners' office in Chicago, Illinois, or
(b) by delivery of documents and closing funds through an agreed escrow
agent (the "Escrow Agent"), which will be a law firm or title insurance
company.
(b) PARTNERS' DELIVERIES. On the Exchange Date, Partners will
deliver to Owner (or Escrow Agent, as applicable), the following documents:
(i) two executed originals of the Disclaimer;
(ii) two counterparts of the Amended License;
(iii) two counterparts of the Amended Club Agreement; and
(iv) two counterparts of the Memorandum.
(c) OWNER DELIVERIES. At Closing, Owner will deliver to Partners:
(i) the Release Price, by wire transfer of clear federal
funds to the account designated by Partners (or to Escrow
Agent's escrow account, as applicable);
(ii) two counterparts of the Amended License;
(iii) two counterparts of the Amended Club Agreement; and
(iv) two counterparts of the Memorandum.
6. FURTHER ASSURANCES. Partners agrees in consideration hereof to
execute without condition or delay any other assignments as reasonably may
be requested of Partners from time to time by an owner of any of the lands
constituting the Property, in whole and part, or within the Hotel Complex,
contract purchaser(s), mortgage lender or mezzanine lender seeking an
interest in, or lien upon any of the lands constituting the Property, in
whole and part, or within the Hotel Complex or the ownership thereof, in
order to confirm the disclaimer, release and waiver of the Released Rights;
provided, however, that nothing in this Section 6 will be deemed to enlarge
the obligations of Partners hereunder or to require Partners to incur any
material expense or liability not otherwise required of it hereunder.
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7. DISPUTE COSTS. If the event of litigation between Partners and
Owner concerning their rights and obligations pursuant to this Agreement or
any instrument delivered pursuant hereto, the prevailing party will be
entitled to reimbursement of its costs and expenses, including, without
limitation, reasonable attorneys' fees incurred in connection with the
prosecution or defense of such action, including those incurred in any
appellate proceedings, and whether or not the action is prosecuted to a
final judgment.
8. CONFIDENTIALITY. Partners and Owner agree that the terms of
this Agreement will remain confidential, except that Partners and/or Owner
may disclose the terms and provisions of this Agreement: (1) to the direct
or indirect partners of Partners (and their respective partners, members,
shareholders, managers, officers, administrators, trustees, directors or
beneficiaries) and/or members of Owner; (2) as may be required by law or
regulation; (3) to comply with the filing requirements of any governmental
authority, or applicable legislation or rule, as reasonably determined by
the party subject to such filing requirement (or such party that reasonably
believes that it is subject to any filing requirement); (4) to any counsel,
consultant, agent or lender assisting Partners or Owner with the
transaction which is the subject of this Agreement; or (5) as is reasonably
necessary to enforce Partners' or Owner's rights hereunder.
[Signatures on following page]
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IN WITNESS WHEREOF, this Agreement has been executed as of the
date first set forth above.
Signed, sealed and delivered
in the presence of: PARTNERS:
ARVIDA/JMB PARTNERS,
a Florida general partnership
----------------------------- By: Arvida Company,
Printed Name: an Illinois corporation
General Partner
----------------------------- By:
Printed Name: --------------------------
Printed
Name:
--------------------------
Title:
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Signed, sealed and delivered
in the presence of: BUYER:
INTERCONN PONTE VEDRA COMPANY, L.L.C.,
a Delaware limited liability company
----------------------------- By: Connecticut General Life
Printed Name: Insurance Company,
its Member
By: CIGNA Investments, Inc.
Its Authorized
Representative
By:
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Printed
Name:
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Title:
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---------------------------- By: Interstate Property
Printed Name: Partnership, L.P.
its Member
By: Interstate Property
Corporation
Its General Partner
By:
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Printed
Name:
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Title:
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EXHIBIT A
Disclaimer, Release and Waiver of Rights
EXHIBIT B
Amended and Restated License Agreement
EXHIBIT C
Amended and Restated Cabana Club Agreement
