MASTER AGREEMENT
THIS AGREEMENT is made and entered into as of November 19, 1996 and is by
and among GROVE ISLE ASSOCIATES, LTD., a Florida limited partnership
("Associates"), GROVE ISLE CLUB, INC., a Florida corporation ("GICI") and Grove
Isle Investments, Inc., a Florida corporation ("Investments") (Associates, GICI
and Investments are sometimes collectively referred to as the "Owners") and
WESTGROUP GROVE ISLE ASSOCIATES LTD., a Florida limited partnership
("Westgroup").
R E C I T A L S
A. Associates is the owner in fee simple of the land located at 0 Xxxxx
Xxxx Xxxxx, Xxxxx, Xxxx Xxxxxx, Xxxxxxx, which is legally described on Exhibit
"A" hereto (the "Land"), all Improvements thereon (the "Improvements"), all
easements, servitudes, reversions, remainders, benefits, and other rights and
interests appurtenant thereto and all furniture, furnishings, fixtures,
appliances and other equipment (the "FF&E") located at and used in connection
with the operation of the Land and the Improvements (the Land, the Improvements,
such appurtenances and the FF&E is together called the "Property").
B. Pursuant to the Declaration of Condominium recorded in Official Records
Book 10279, Pages 1915 et seq., Public Records of Dade County, Florida, and all
amendments to such declaration recorded to-date (the "Declaration of
Condominium"), GICI has the exclusive right to operate the "Grove Isle Club"
referred to in the Declaration of Condominium on the Real Property, membership
in which is mandatory for owners of condominium units established under the
Declaration of Condominium (the "Club").
C. The Improvements presently consist of, among other things, a hotel,
restaurant, retail shops, pool, pool deck, tennis courts, driveways, accessways,
a guard house, and parking areas (such Improvements are called the
"Facilities"). GICI is the owner of a leasehold estate in the Property pursuant
to that certain Lease Agreement dated an of October 1, 1993 by and between
Associates, as Lessor and GICI, as Lessee (the "Existing Lease"), and has been
operating the Facilities as a luxury hotel and restaurant (herein, the "Resort")
as well as the Club.
D. The Owners, in the aggregate, own (i) all food, beverages, catering
supplies, cleaning supplies, stationery, and all other inventory, supplies and
consumables used for the operation of the Resort and the Club (to the extent
that such items are unopened or unsealed, as applicable, they are herein called
the "Inventory and Consumables"), (ii) all licenses, permits and governmental
approvals with respect to the Resort or the operation of the Resort, the Club,
or any component of either, as well as any monies deposited with any
governmental or quasi-governmental authorities in connection therewith (the
"Permit"); (iii) all
leases, subleases and occupancy agreements with respect to any portion of the
Real Property, and all rents therefrom (collectively, the "Leases".); (iv) all
contracts, warranties, deposits and advance payments made by or for the benefit
of any Owner, goodwill, guaranties, contract rights and general intangibles
(including, without limitation, providing access to and use of Owner's books and
records, and making the originals thereof available where necessary) of Owners
or any of them for or in connection with, or derived from, the ownership or
operation of the Resort or the Club (the "Contracts".); and (v) all other
properties, rights and interests whatsoever of Owners used for or in connection
with the operation of the Resort, the Club, or any part of either but retaining
unto the Owners such rights where necessary for their operation of a marina on
the submerged land adjacent to the Real Property (the "Other Right").
E. The parties desire that Westgroup lease the Property and operate the
same as the Resort and the Club, on an exclusive basis, for Westgroup's own
account and that in connection therewith, the Owners sell, lease or assign, as
applicable, to Westgroup the Inventory and Consumables, certain of the Permits
(to the extent transferable), the Leases, the Contracts and the Other Rights,
all on the terms and conditions hereinafter set forth.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements, covenants, terms, and conditions hereinafter set forth, the parties
hereby agree as follows:
1. Correctness of Recitals. The above recitals are true and correct.
2. Certain Defined Terms. Any capitalized term used as if defined herein,
but which is not otherwise defined herein, shall have the meaning attributed to
that term on Exhibit "B" attached hereto.
3. Agreement to Close. On the "Closing Date" (hereafter defined), the
parties shall consummate the transactions contemplated above by executing and
delivering, or causing the execution and delivery as applicable, of the Owners'
Closing Deliveries and the Westgroup's Closing Deliveries (each defined below).
The Owners' Closing Deliveries and the Westgroup's Closing Deliveries are
together called the "Closing Deliveries".
4. Capital Improvements: Operating Shortfalls. The parties acknowledge that
revenue from the Property may not be sufficient to pay all costs of operating
and maintaining the Property and the
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cost of performing the Lease, and also that it is in their mutual interest to
make capital improvements to the Resort. Accordingly:
4.1 Use of Initial Rent Payment. As more particularly set forth in the
Lease, Westgroup is obligated to pay to Associates at Closing the sum of
$1,000,000 in cash as the "Initial Rent Payment. defined in the Lease.
Associates shall hold the Initial Rent Payment in a segregated account in a bank
located in Dade County, Florida, the name of which account shall be "Noble House
Grove Isle - Special Account". Such account may bear interest for the account of
Associates. Associates shall disburse the Initial Rent Payment to Westgroup upon
Associates' receipt of Westgroup's written requests for such disbursement from
time to time until the first anniversary of the Closing Date. Each request shall
be accompanied by Westgroup's written certification that the amount so requested
is required to pay for the cost of Qualified Capital Improvements or Operating
Shortfalls. If and to the extent that any of the Initial Rent Payment has not
been requested to be disbursed on or before the first anniversary of the Closing
Date, then Associates may disburse such undistributed portion to itself.
4.2 Additional Investment by Westgroup. In addition to its obligation
to pay Initial Rent Payment, Westgroup shall expend not less than $2,000,000
(the "Additional Equity Requirement") for Qualified Capital Improvements from
time to time prior to the "Equity Deadline" defined below, provided, however,
that the amount of any Operating Shortfalls funded by Westgroup prior to the
Equity Deadline (other than Operating Shortfalls funded by disbursement to
Westgroup of Initial Rent Payment as set forth in Section 4.1 above) shall be
credited toward the Additional Equity Requirement; and provided, further, that
the amount of Operating Shortfalls funded by Westgroup which may be credited to
the Additional Equity Requirement shall not exceed $800,000 plus the amount of
the Initial Rental Payment disbursed for Qualified Capital Improvements pursuant
to Section 4.1 above. If and to the extent that the Additional Equity
Requirement is not satisfied prior to the Equity Deadline, then Associates may
notify Westgroup to pay to Associates the amount of any such Additional Equity
Requirement not satisfied, whereupon Westgroup shall pay such amount to
Associates on demand. Nothing herein shall be construed to limit Westgroup's
right or ability to make capital improvements or other investments in the
Property in excess of the Additional Equity Requirement, or following the Equity
Deadline, but "Westgroup's Capital Investment" defined in the Lease shall not
exceed $3,000,000 unless so agreed by Associates in its sole and absolute
discretion. The "Equity Deadline" means the earlier of (a) the third anniversary
of the Closing Date, or (b) the Stabilization Date. The "Stabilization Date"
means the 90th day following the end of the fourth consecutive calendar quarter
(i.e., the three month periods ending on the last day of March, June September
and December) for which Net Operating Surplus (defined in the Lease) has been a
positive amount.
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4.3 Accounting for Capital Improvements. Westgroup shall provide
Associates, on a quarterly basis commencing April 1, 1997, a schedule of amounts
expended by Westgroup for Qualified Capital Improvements since the date of the
last such schedule provided, which schedule shall list the item purchased.
Westgroup shall provide Associates with copies of bills, invoices, or contract.
relative to any such capital improvements limited on any such schedule, within
15 days after Associates' request made within 30 days after it receives such
schedule. Westgroup shall maintain accurate books and records with respect to
any such capital improvements, in accordance with generally accepted accounting
principles consistently applied, and shall make its books and records with
respect to the cost of such improvements available for inspection by Associates
or Associates, authorized representative during normal business hours, upon
reasonable prior notice.
5. Restaurant.
5.1 Termination. Not later than the Closing Date, GICI shall give
notice of termination of that certain Management and Licensing Agreement dated
June 23, 1995 between GICI and MMJ Management, Inc. (the "Restaurant
Agreement"), so that the same is terminated and possession delivered to
Westgroup effective not later than 180 days following the Closing Date.
5.2 Indemnity. The Owners, jointly and severally, shall indemnify and
hold Westgroup harmless of, from and against any loss, cost, damage, claim,
expense or liability (including, without limitation, damages, lost profits, all
amounts payable to MMJ Management, Inc. or any other person under or pursuant to
the Restaurant Agreement and any and all promissory notes executed pursuant
thereto and reasonable attorneys' fees and litigation expenses) incurred by or
threatened against Westgroup as a result of any (a) termination or attempted
termination of the Restaurant Agreement, (b) actual or alleged breach or
violation of the Restaurant Agreement or of any promissory notes executed
pursuant thereto or of any term, provision or condition of the Restaurant
Agreement or such notes by or on behalf of any Owner, and/or (c) Equitable
Relief. In this regard, the parties acknowledge that if Westgroup were unable to
operate a restaurant at the Property, its damage would be extremely difficult to
determine. Accordingly, owners shall pay Westgroup, as liquidated damages, and
as Westgroup's sole damages (exclusive of reasonable attorneys' fees and
litigation expenses) as a result of any Equitable Relief, $2,000.00 for each day
that Westgroup is subject to any Equitable Relief but in no event more than
$730,000. "Equitable Relief. means any injunction, restraining order, judgment,
mandate or any other order or decree in favor of MMJ Management, Inc. or anyone
claiming under MMJ Management, Inc., which prevents, limits or impairs, or
purports to prevent, limit or impair, operation of a restaurant at the Property
other than pursuant to the Restaurant Agreement, provided, however, that the
Owners shall not be
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responsible for any Equitable Relief (a) to the extent that it is operative
prior to the earlier of the effective termination of the Restaurant Agreement or
180 days following the Closing Date, or (b) following such date that MMJ
Management, Inc. shall have released Westgroup and its agents, contractors,
partners, and employees from any liability or responsibility for any Equitable
Relief. Westgroup shall have the right, but no obligation, to operate a
restaurant at the Property, notwithstanding the pendency of any motion or
petition for Equitable Relief and notwithstanding that such activity may
increase the amount which the Owners are obligated to pay to Westgroup under
this Section.
6. Associates' Loan to Westgroup. Concurrently herewith, Associates shall
make an unsecured loan to Xxxxxxx X. Xxxxx in the principal sum of $500,000, to
be evidenced by and repayable in accordance with the "Note" defined below.
Associates shall disburse the proceeds of such loan in two installments of
$250,000, one of which shall be disbursed on such borrower's request not earlier
than June 1, 1997 and the other on such borrower's request not earlier than
September 1, 1997.
7. Closing. "Closing" means the date on which this Agreement is signed and
becomes effective, and all Closing Deliveries are unconditionally exchanged and
delivered. The Closing shall occur on November 19, 1996 (the "Closing Date").
8. Closing Deliveries. At Closing, the parties shall do the following:
8.1 By Owners. The Owners shall execute and deliver, or cause to be
executed and delivered, to Westgroup, the following documents (collectively, and
together with this Agreement, the "Owners' Closing Deliveries"):
(a) An Assignment of Lease in the form attached hereto as Exhibit
"C" (the "Assignment of Lease").
(b) Two counterparts of each of an Amended and Restated Lease
Agreement in the form of Exhibit "D" attached hereto (the "Lease Modification")
and a Memorandum of Lease in the form of Exhibit "E" hereto (the "Lease
Memorandum").
(c) Two counterparts of an Assignment and Assumption of Occupancy
Leases in the form of Exhibit "F" attached hereto (the "Assignment of Occupancy
Leases").
(d) A Xxxx of Sale in the form of Exhibit "G". attached hereto
(the "Xxxx of Sale").
(e) An Assignment of Contracts, Permits and Other Rights in the
form of Exhibit "H" attached hereto (the "Assignment of Contracts").
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(f) All instruments required to transfer to Westgroup the
Beverage License in the name of GICI, issued by the State of Florida, Department
of Business and Professional Regulation, Bureau of Alcoholic Beverages and
Tobacco.
(g) For each Owner and if a partnership, its corporate general
partners: (i) a Certificate of Good Standing, issued by the appropriate
governmental authority; (ii) for each limited partnership, its Certificate of
Limited Partnership, certified by the appropriate governmental authority; (iii)
for each corporation, a copy of its articles of incorporation, certified by the
appropriate governmental authority; (iv) for each corporation, a certificate of
its corporate secretary, certifying as to the status of its articles of
incorporation, bylaws, incumbent officers and the adoption of resolutions
authorizing the execution and delivery by such corporation of the Owners,
Closing Deliveries, on its own behalf and if such corporation is a general
partner of any limited partnership Owner, on behalf of such partnership; and (v)
for each partnership, a certificate of its general partner certifying as to the
status of its partnership agreement.
(h) Such affidavits, certificates and additional items as are
sufficient to enable deletion, on the Closing Date, of the exceptions set forth
on the Title Commitment as items B-1 (3) through (8), (11), (12), (13) and B-2
(1), (2) a., d., and e.
(i) A letter from City National Bank of Florida ("CNB") in the
form of Exhibit "I" hereto.
(j) Two counterparts of a Subordination, Non-Disturbance and
Attornment Agreement in the form of Exhibit "J" hereto, signed by CNB (the
"SNDA").
(k) Two counterparts of a Closing Statement providing for the
payments required at Closing hereunder (the "Closing Statement").
(1) A schedule of the Inventory and Consumables located at the
Property as of 11:59 p.m. on the Proration Date, initialed on behalf of the
Owners (the "Inventory") for attachment to the Xxxx of Sale.
(m) A schedule of the Accounts as of 11:59 p.m. on the Proration
Date, initialed on behalf of the Owners (the "Receivables Schedule"),
(n) A schedule of the FF&E located at the Property as of the
Proration Date, initialed on behalf of the Owners (the "FF&E Schedule").
8.2 By Westgroup. Westgroup shall execute and deliver, or cause to be
executed and delivered, to the respective Owners the
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following (collectively, and together with this Agreement, the "Westgroup's
Closing Deliveries"):
(a) Two counterparts of each of the Lease Modification and the
Lease Memorandum.
(b) Two counterparts of the Assignment of Occupancy Leases.
(c) Two counterparts of the SNDA.
(d) A promissory note in the form of Exhibit "K" hereto (the
"Note").
(e) A guaranty in form of Exhibit "L" hereto (the "Guaranty").
(f) A Certificate of Good Standing for Westgroup and its general
partner, Westgroup's certificate of limited partnership, and Westgroup's
corporate general partner's certificate of incorporation, each issued by the
appropriate governmental authority, as well as a certificate of Westgroup's
general partner as to the status of Westgroup's partnership agreement, the
status of such corporation's articles of incorporation, bylaws, incumbent
officers and the adoption of resolutions authorizing its execution and delivery
of the Westgroup's Closing Deliveries on behalf of Westgroup.
(g) Westgroup's approval of the Inventory, the Receivables
Schedule, and the FF&E Schedule, evidenced by the initials thereon of
Westgroup's authorized representative.
9. Adjustments. At Closing, the parties shall make such payments to each
other as may be required in order to effectuate the following:
(a) All rent, revenue and other income from the Property, as well
as real property taxes, service and other contracts assumed by Westgroup and
associated deposits and any additional operating expenses for the Property shall
be prorated as of 11:59 p.m. on the date immediately preceding the Closing Date
(the "Proration Date"), provided, however, that as more particularly set forth
in the Lease, n Club Dues n (defined in the Lease) shall be deemed to be prepaid
and to accrue on a daily basis over the period for which they apply, and
provided, further, that any credit due Westgroup on account of Club Dues
received prior to the Closing Date shall be payable in six equal monthly
installments due on the Closing Date and on the last business day of December,
1996, and January, February, March and April, 1997, on which date the entire
balance of such credit shall be due and payable to Westgroup, and the Owners
hereby agree to pay the amount of such credit to Westgroup within the time set
forth above, and in the
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amount so paid shall constitute "Operating Revenue n under the Lease, and
provided further that if any prorations contemplated under this subsection (a)
are not made at Closing the parties" shall, within 60 days after Closing,
complete such prorations and make any payments to the other which are required
as a result thereof;
(b) Westgroup shall receive a credit for all tenant deposits,
security deposits and prepaid bookings held by Owners as at 11:59 p.m. on the
Proration Date;
(c) Westgroup shall pay to Owner an amount equal to the cost of
the Inventory and Consumables listed on the Inventory approved by Owners and
Westgroup pursuant to section 8, as evidenced by copies of paid invoices
therefor or such other documentation reasonably requested by Westgroup;
(d) Rather than remove Owners' cash from the Property on the
Closing Date, the parties shall cause the amount of Owner's cash at the Property
to be counted at 3:00 a.m. on the Closing Date. Such cash shall not be removed
by the Owner, and at Closing Owner shall be credited, and Westgroup shall be
debited, the amount of such cash; and
(e) Westgroup and Associates shall each pay half of the Florida
documentary stamp tax on the Note.
10. Post-Closing Accounts and Payables.
(a) Except to the extent that Westgroup is entitled to receive a
credit under section 9(b) above, and also except to the extent otherwise
provided in the Closing Statement, Westgroup shall not be entitled to any of
Owners' accounts receivable which are listed on the Receivables Schedule and are
collected on or after the Closing Date, and if Westgroup receives payment of any
such accounts on or after the Closing Date, it shall promptly remit the same to
Owners. In this regard, Westgroup shall apply payments from each account debtor
to the oldest account owed by that debtor, unless the payor designates a
different account to which such payment shall be applied (in which event it
shall be applied to the account so designated); or the account debtor has
disputed the account to which such payment would otherwise be applied (in which
event, it shall be credited to the oldest account which has not been disputed).
(b) Except for any accounts payable which may be expressly assumed by
Westgroup and credited to Westgroup on the Closing Statement, Owners shall pay
in due course all accounts payable currently due with respect to the Property as
of the Closing Date for goods or services delivered to the Property before the
Closing Date, without contribution or proration from Westgroup.
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11. Representations and Warranties of Owner. Each Owner represents and
warrants (for itself only) to Westgroup that:
11.1 It has the legal power and authority to enter into this Agreement
and those of the other Owners' Closing Deliveries to be executed by it and to
perform its obligations hereunder and thereunder.
11.2 Those of the Owners' Closing Deliveries to be executed by it are
the valid and legally binding obligations of and are enforceable against it in
accordance with their terms, subject only to applicable bankruptcy, insolvency,
reorganization, moratorium laws or similar laws or equitable principles
affecting or limiting the rights of contracting parties generally.
11.3 Neither its execution and delivery of, nor performance of its
obligations under the Owners' Closing Deliveries, conflict with or do or will
result in the material breach of any terms, conditions or provisions of, or
constitute a default under, any bond, note, or other evidence of indebtedness or
any contract, indenture, mortgage, deed of trust, loan, operating agreement,
lease or other agreements or instruments to which such Owner is a party or which
affects the Property.
11.4 To its knowledge, except as disclosed on "Exhibit "M" hereto,
there are no pending, threatened or contemplated actions, suits, arbitrations,
claims or proceedings, at law or in equity, affecting the Property or in which
Owner is, or to the best of Owner's knowledge will be, a party by reason of
Owner's ownership of or involvement with the Property. The Owner has disclosed
all information known to it concerning the pending litigation reasonably
requested by the Westgroup.
11.5 To its knowledge, it has obtained all permits, licenses and
governmental approvals required for the use and operation of the Improvements as
presently conducted, which permits, licenses and governmental approvals are
listed on Exhibit "N" hereto.
11.6 No attachment, execution proceeding, assignment for the benefit
of creditors, insolvency, bankruptcy, reorganization or other such proceedings
are pending or threatened against it.
11.7 To its knowledge, the zoning and permitted uses. of the Real
Property is as set forth in that certain Settlement Agreement recorded in
Official Records Book 9912, Page 260, of the Public Records of Dade County,
Florida, and to its knowledge, without investigation, Owners have operated the
Real Property substantially in accordance therewith.
11.8 It has received no notice from any governmental authority of any
violations of any Legal Requirement relating to
9
the Property and, to its knowledge, but without investigation, it has not
committed any such violation.
11.9 The Owners have delivered, or are concurrently with Closing
delivering to Westgroup the plans and specifications for construction of the
Improvements, as well as copies of all of their books and records pertaining to
the Property.
11.10 It has not received any notice from any insurance company or any
governmental authority of any defects or inadequacies in the Property which has
not been corrected.
11.11 To its knowledge, except as disclosed on the Phase I Report,
there has been no production, disposal, storage, spillage or seepage of any
Hazardous Material or any contamination therefrom at or on the Property, nor is
there any pending proceeding or inquiry by any governmental authority with
respect thereto.
11.12 With the exception of the Professional Employer Agreement for
Grove Isle Club, Inc. d/b/a Grove Isle Club and Resort dated May 24, 1996 (the
"Vincam Agreement"), there are no outstanding employment contracts affecting the
Property. The Vincam Agreement is in full force and effect without modification
and all amounts due or payable by it under the Vincam Agreement are paid through
and including November 9, 1996.
11.13 There are no contracts, agreements, understandings or
arrangements with third parties for the supply of goods or services to the
Property other than as set forth on Exhibit "O" hereto.
11.14 Other than transient hotel guests, there are no parties in
possession of the Demised Premises or any part thereof under any leases,
subleases, occupancy agreements or similar arrangements or otherwise other than
the tenants under those leases listed on Exhibit "P" hereto. Each of those
tenants is in possession under a month-to-month tenancy. All rent payable under
such leases is current. No such tenant has asserted any claim, offset or defense
to its obligations under such leases.
11.15 With the exception of Sales Tax owed by Owners' predecessor in
title, the Owners have paid all Sales Tax due through November 1, 1996 and no
Owner has received any notice from the Florida Department of Revenue that any
such Sales Tax is delinquent. Any delinquent Sales Tax owed by Owners'
predecessor in title is the subject of a separate settlement agreement between
Owners and the Florida Department of Revenue, and the Owners' obligations under
such settlement agreement are current and in good standing.
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11.16 Except as disclosed on the Title Report, the Property is free
and clear of all liens, claims, security interests and all other encumbrances
whatsoever.
11.17 The obligations secured by the instruments listed in item 27 of
the Title Commitment (the "Owners' Mortgage Loan") are not in default for
failure to pay any sum when due thereunder, and, to its knowledge, there exists
no event, condition or circumstance which, with the giving of notice or the
passage of time or both would constitute a default under the Owners' Mortgage
Loan.
11.18 [
]*
11.19 No representation, warranty or statement of Owner in this
Agreement or in any document, certificate or schedule furnished or to be
furnished to Westgroup pursuant hereto contains any untrue statement of a
material fact or omits or will omit to state a material fact necessary to make
the statements or facts contained therein not misleading.
12. Westgroup's Representations and Warranties. Westgroup represents and
warrants to Owners as follows:
12.1 Westgroup has the legal power and authority to execute and
deliver this Agreement and the other Westgroup's Closing Deliveries herein, and
to perform its obligations hereunder and thereunder.
12.2 Those of Westgroup's Closing Deliveries to be executed by it are
the valid, legally binding obligations of and enforceable against it in
accordance with their terms, subject only to applicable bankruptcy, insolvency,
reorganization, moratorium laws or similar laws or equitable principles
affecting or limiting the rights of contracting parties generally.
12.3 No attachment, execution proceeding, assignment for the benefit
of creditors, insolvency, bankruptcy, reorganization or other such proceedings
are pending or threatened against it.
12.4 Neither the execution and delivery of this Agreement or other
Westgroup's Closing Deliveries, nor the incurrence of Westgroup's obligations
set forth herein nor consummation of the transactions herein contemplated, nor
compliance with the terms of this Agreement and the other Westgroup's Closing
Deliveries conflict with or result in the material breach of any terms,
11
_____
* The text within the brackets has been omitted and separately filed with the
Securities and Exchange Commission pursuant to a Rule 24b-2 request for
confidential treatment.
conditions or provisions of, or constitute a default under, any bond, note, or
other evidence of indebtedness or any contact, indenture, mortgage, deed of
trust, loan, operating agreement, lease or other agreements or instruments to
which Westgroup is a party.
12.5 No representation, warranty or statement of Westgroup in this
Agreement or in any document, certificate or schedule furnished or to be
furnished by Westgroup pursuant hereto contains or will contain any untrue
statement of a material fact, omits or will omit to state a material fact
necessary to make the statements of facts contained therein for misleading.
13. Indemnity. In addition to its other obligations under this Agreement,
the Owners shall, jointly and severally, indemnify and hold Westgroup harmless
of, from and against any loss, cost, damage, claim, expense or liability
(including, without limitation, reasonable attorney's fees and litigation
expenses) incurred by or threatened against Westgroup as a result of (a) any
breach or violation of any representations or warranties made under this
Agreement; (b) any litigation, action or proceeding or any claim against it,
whether or not disclosed herein, other than claims accrued, and litigation,
actions, proceedings arising out of causes of actions accrued, prior to the
Closing Date; (c) any failure by any Owner or any other person to fully pay and
perform the Owners' Mortgage Loan when and as due (other than the obligation to
make tax and insurance escrow payments expressly undertaken by Westgroup as
Lessee under the Lease); (d) failure by any Owner to pay when due all sale and
use tax, interest and penalties levied under Chapter 212, Florida Statutes, with
respect to the Property and Owners' operations thereat (collectively, "Sales
Tax") (it being understood, however, that Owners shall have no obligation to
remit Sales Tax not timely paid to Owners by Westgroup, to the extent that
Westgroup is obligated to pay the same under the Lease); (e) breach of any
obligations of the grantee under, or Associates, as the upland owner referred to
in, the Sovereignty Submerged Land Lease listed on the Title Report; and (f) any
action or inaction taken by it with respect to the Property (other than the
improvement of or physical condition of the Property) prior to the Closing Date
which is not disclosed herein or in the other Owner's Closing Deliveries.
14. Written Modification. No modification, release, discharge, or waiver of
any provision hereof shall be of any force, effect, or value unless signed in
writing by the party to be charged therewith, or its duly authorized agent or
attorney.
15. Notices. All notices and responses which are required or permitted
under this Agreement shall be in writing, and shall be deemed complete only when
actually delivered to the recipient as follows or delivery at such address is
refused:
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(a) If to any Owner: Grove Isle Associates, Ltd.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
With a copy to: Xxxx Xxxx, Esq.
Xxxxxxxxx, Traurig, Hoffman,
Xxxxxx & Quentel
0000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
(b) If to Westgroup: Westgroup Grove Isle
Associates Ltd.
c/o Noble House Hotels & Resorts
00 Xxxxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxx
With a copy to: Xxxxxxx Xxxx, Esq.
00 Xxxxxxx Xxx
Xxxxx 000
Xxxxxxxx, XX 00000
Either party may change the place for giving notice by written notice in
the manner set forth in this Section.
16. Headings. Paragraph and section headings in this Agreement are for
convenience and reference only and shall not be used to interpret or construe
its provisions, or otherwise be accorded any effect in the interpretation of
this Agreement.
17. Severability. If any provision of this Agreement or the application
thereof to any person or situation shall, to any extent, be held invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to such persons or situations other than those to which it shall have
been held invalid or unenforceable, be affected thereby, but shall continue
valid and enforceable to the fullest extent permitted by law.
18. No Recordation. Neither this Agreement nor any of the other Closing
Deliveries shall be recorded, provided, however, that either may record the
Assignment of Lease, the Lease Memorandum and/or the SNDA.
19. Attorneys, Fees. In the event of any litigation, action, suit or
proceeding between any parties to this Agreement pertaining to the construction
or enforcement of this Agreement or any of the other Closing Deliveries, the
prevailing party shall be entitled to payment by the other of such prevailing
party's reasonable attorney's fees and expenses in connection with such
litigation, action, suit or proceeding.
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20. Rights Cumulative. All rights and remedies provided to any party
pursuant to this Agreement or any of the other Closing Delivery are cumulative
and not exclusive of any right or remedy provided by law or otherwise.
21. Governing Law. This Agreement shall be governed by, and construed and
enforced under, the laws of the State of Florida.
22. Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties and their respective successors and assigns, except that
unless and to the extent stated otherwise in any other Closing Deliveries, no
assignment shall release the assignor from its obligations under this Agreement
or any of the other Closing Deliveries, and nothing herein shall be deemed to
permit any assignment which is prohibited pursuant to any other provision hereof
or of any of the other Closing Deliveries.
23. Entire Agreement. This Agreement and the other Closing Deliveries set
forth the entire agreement of the parties hereto with respect to the subject
matter hereof.
24. Brokers. Each party represents to the other that there are no brokerage
commissions due or payable to any person or entity as a result of this
transaction. Each party hereby agrees to hold the other harmless from and
against any claim of any person or entity claiming any broker's commission,
finder's fee or similar claim claiming through such party, and agrees to
indemnify the other from any and all costs of defending or paying any such
claim, including reasonable attorneys' fees.
25. Time of Essence. Time is of the essence of each and every provision
hereof.
26. Survival. This Agreement and all indemnities, covenants, terms,
conditions and provisions shall survive the Closing and shall not merge into any
of the other Closing Deliveries, provided, however, that the representations and
warranties made herein shall terminate two (2) years following the Closing as to
any claims not yet asserted for breach of such representations and warranties by
the beneficiary thereof.
27. FF&E. GICI hereby sells, assigns, conveys and quitclaims to Associates
any and all right, title and interest of GICI to the FF&E.
28. Further Assurance. Each party hereto shall, at any time and from time
to time upon the request of any other party hereto, make, execute and deliver,
or cause to be made, executed and delivered to the requesting party any and all
such further instruments of transfer, conveyance and further assurance,
certificates, affidavits and other documents as the requesting party may
consider necessary in order to effectuate, complete or
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perfect the transactions contemplated by this Agreement, but no party shall be
obligated to amend or modify this Agreement or any of the Closing Deliveries,
nor shall any Owner be obligated to grant or request its mortgagee to grant
non-disturbance or similar rights to any mortgagee of the Westgroup's interest
in the Property, other than such rights as are contemplated to be afforded to
Westgroup itself pursuant to the SNDA. In addition, if any Owner is requested to
assign any Permits, Contracts, or Other Rights not assigned under any Closing
Deliveries, such Owner may retain such rights therein as are necessary to their
operation of the marina which is adjacent to the Resort.
GROVE ISLE ASSOCIATES, LTD., by
COURTLAND INVESTMENTS, INC., a Delaware
corporation, its sole general partner
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Chairman
(SEAL)
GROVE ISLE CLUB, INC.,
a Florida corporation
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Chairman
(SEAL)
GROVE ISLE INVESTMENTS, INC.,
a Florida corporation
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Chairman
(SEAL)
00
XXXXXXXXX XXXXX XXXX XXXXXXXXXX, LTD.,
a Florida limited partnership, by
Westgroup Partner, Inc., a California corporation,
its sole general partner
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
President
(SEAL)
EXHIBITS
"A" - Legal Description
"B" - Definitions
"C" - Assignment of Lease
"D" - Lease Modification
"E" - Lease Memorandum
"F" - Assignment of Occupancy Leases
"G" - Xxxx of Sale
"H" - Assignment of Contracts
"I" - CNB Estoppel
"J" - SNDA
"K" - Note
"L" - Guaranty
"M" - Litigation Schedule
"N" - List of Permits
"O" - List of Service Contracts
"P" - List of Occupancy Tenants
"Q" - Club Arrangements
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