EXHIBIT 10.3
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MANAGEMENT, ADVISORY AND SUPERVISORY AGREEMENT
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This MANAGEMENT, ADVISORY AND SUPERVISORY AGREEMENT dated as of
September 10, 1987 by and between ARVIDA/JMB PARTNERS, L.P., a limited
partnership organized and operating under the laws of Delaware (the
"Partnership"), and ARVIDA MANAGEMENT COMPANY, a corporation organized and
operating under the laws of Illinois ("Arvida").
WHEREAS, the Partnership was organized under the laws of Illinois
under and by virtue of a Certificate of Limited Partnership dated as of
January 28, 1987 and reconstituted as a Delaware limited partnership on
April 8, 1987 for the purposes described in its Certificate of Limited
Partnership;
WHEREAS, the Partnership desires to avail itself of the experience,
sources of information, advice, assistance and certain facilities and
resources available to Arvida and to have Arvida undertake the duties and
responsibilities hereinafter set forth on behalf of the Partnership, and
subject to the authority, supervision and control on behalf of the
Partnership of Arvida/JMB Managers, Inc., the general partner (the "General
Partner") of the Partnership, all as provided herein;
WHEREAS, subject to the authority, supervision and control of the
General Partner on behalf of the Partnership to the extent Arvida renders
services for the Partnership, Arvida is willing to undertake to render such
services on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, it is agreed as follows:
ARTICLE I - GENERAL MANAGEMENT, ADVISORY AND SUPERVISORY SERVICES
SECTION 1.1 During the term of this Agreement, Arvida will be
authorized, as requested from time to time by the General Partner or a
Developer (as hereinafter defined), to provide development and management
supervisory and advisory services, as described more fully below, with
respect to the Partnership properties (the "Properties") acquired by the
Partnership pursuant to, or as contemplated by, that certain Acquisition
Agreement, as amended through the date hereof, among Arvida Corporation,
The Xxxx Disney Company and the Partnership, or as contemplated by the
Prospectus (as hereinafter defined). In the course of its duties, Arvida
will provide development and management supervisory and advisory personnel
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(and services with respect thereto) in respect of the Properties; provided,
however, that at all times during the term hereof, the Partnership will
retain the ultimate authority for the management and control of the
Properties. Arvida shall have no authority to enter into contracts on
behalf of the Partnership without the prior approval of the General
Partner. Nothing in this Agreement shall in any way limit or restrict
Arvida's operation of its own business.
SECTION 1.2 Arvida will use reasonable efforts to provide services
to the Partnership in accordance with prevailing
industry practices.
SECTION 1.3 Arvida will direct and supervise the
Partnership's personnel in the day-to-day operations of the Properties,
subject, however, to the requirement that all major actions affecting the
Properties shall be reviewed in advance with, and shall not have been
disapproved by, the General Partner.
SECTION 1.4 Arvida shall and does hereby undertake to assist the
Partnership with respect to the maintenance and operation of each completed
Property and as needed to render marketing, sales and administrative
expertise as requested by the General Partner in respect of Partnership
Properties, whether completed or, under development.
SECTION 1.5 Arvida shall perform the services to be provided
hereunder upon the request from time to time of the General Partner or a
Developer (as hereinafter defined), which request may be general or
specific. The requesting party shall retain the right to limit or
redefine, upon reasonably prompt notice to Arvida, any request for services
on a prospective basis with respect to services to be performed.
SECTION 1.6 Arvida hereby agrees that the Partnership is entering
this Agreement on its own behalf and on behalf of any joint venture or
other entity in which the Partnership holds or may hereafter hold an
interest and that Arvida shall perform services as provided hereunder for
any such joint venture or other entity with respect to the Partnership's
interest therein upon the request of the General Partner or such joint
venture or other entity.
ARTICLE II - DUTIES OF ARVIDA WITH RESPECT TO DEVELOPMENT
AND MANAGEMENT OF PROPERTIES
SECTION 2.1 As requested from time to time by the General Partner,
Arvida shall and does hereby undertake to assist the Partnership or the
developing joint venture or other entity of each Property in which the
Partnership has an interest (collectively with the Partnership, for
purposes of this Agreement, the "Developer") with respect to the
development and management of such Property (individually, a "Project") as
follows:
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(a) Assist and recommend procedures for demolition or renovation of
existing structures on the site of the Project and, for and on
behalf of the Developer, monitor the work of all demolition or
renovation contractors, if any, subject to the terms of the
applicable demolition or renovation contract;
(b) Assist and recommend the selection of the architect, land
planners, the structural, mechanical and electrical engineers
and any other additional consultants who, in Arvida's
reasonable judgment, may be necessary for the development of
the Project; negotiate and consummate contracts, including
materials purchase agreements, relating to the Project, in the
name of the Developer (which contracts shall include, to the
extent practicable, provisions (i) acknowledging the
Developer's right to use all work product, and (ii) providing
for the invoicing to the Developer of all fees, labor,
materials purchased and equipment rented, including sales and
use taxes, which invoices Arvida shall review and approve
before passing to the Developer for payment); coordinate and
direct the work of such parties to ensure the expeditious
completion of the Project; and examine, and make
recommendations for the payment or settlement of, the accounts
of such parties;
(c) Assist the Developer in identifying all licenses, permits,
consents, approvals and variances necessary from governmental
authorities in respect of the Project and causing proper
application to be made to all such governmental authorities for
such licenses, permits, consents, approvals and variances;
(d) Initiate and maintain planning, scheduling and supervision for
all phases of development of the Project, including, without
limitation, schedules for commencement and completion of
development and construction;
(e) Assist in the development of feasibility studies based upon
appropriate marketing considerations, among others, identifying
alternative solutions to any impediments to development of the
Project, and to use Arvida's resources and expertise to resolve
such impediments and implement appropriate solutions to such
impediments;
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(f) Assist in the layout and architectural and engineering design
for the Project (including land planning and land development
in respect thereof), including the preparation of conceptual
studies, schematic design, design development, construction
documents, and models and graphic presentation materials;
(g) Assist in the preparation of (i) preliminary, (ii) revised and
(iii) final development budgets, detailed economic forecasts,
fee schedules and completion schedules for all phases of
development of the Project from commencement to completion
based, in each case, on applicable design and development
documents;
(h) Provide such services of additional personnel and support staff
as are necessary to carry out its obligations hereunder, and
advise the Developer from time to time of its key personnel who
are assigned to the Project;
(i) Submit to the Developer on a regular basis:
(1) A cost analysis for the Project, which shall include
projected cash expenditures and costs incurred to date
(including but not limited to development, construction,
marketing and administration costs), and
(2) written progress reports on construction, personnel and
contractual commitments and any significant events
affecting or relating to the Project;
(j) Consult with the Developer on all matters which are subject to
the Developer's approval rights hereunder and promptly submit
such matters to the Developer for approval prior to taking any
action thereon;
(k) Allow the Developer, at all reasonable times, to inspect and
audit Arvida's records relating to the Project, to consult with
the personnel and support staff of Arvida which have been
provided to perform the obligations of Arvida hereunder, to
attend Project meetings and to post such advertisements, signs
or notices as the Developer may deem desirable at or in the
vicinity of the Project;
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(1) Assist the Developer in ensuring that all appropriate
contracts will provide that the development of the
Project shall comply with all applicable laws,
ordinances, building codes, fire codes, orders,
regulations and restrictions of record;
(m) Submit to the Developer those written bids received by Arvida
from proposed contractors (and sub-contractors, as applicable),
together with Arvida's analyses and recommendations respecting
such bids and such contractors, including the general
construction contract or contracts (herein called the
"Construction Contract") that are proposed to be entered into
between the Developer and one or more general contractors (the
"General Contractor");
(n) Monitor the work of the General Contractor and subcontractors
including but not limited to the solicitation and receipt of
bids, for and on behalf of the Developer, subject to the terms
of the Construction Contract; and
(o) Coordinate at the Developer's direction and on the Developer's
behalf the substantial completion of the various portions of
the Project as may be necessary for the sale of lots and units
of the Project.
SECTION 2.2 Arvida shall not have control or charge of and shall
not be responsible for construction means, methods, techniques, sequences
or procedures, or for safety precautions and programs in connection with
the work upon the Project, for the acts or omissions of the General
Contractor, subcontractors or any other persons performing any of such
work, or for the failure of any of them to carry out the work in accordance
with their respective contract documents.
SECTION 2.3 Upon the request of the Developer, Arvida shall act as
attorney-in-fact or agent in dispositions of all Projects (or portions
thereof) and other investments, in negotiating, renegotiating or carrying
out the terms of sale of Projects or other investments, in disbursing and
collecting the funds of the Developer in respect of such Projects or other
investments, in paying the debts and fulfilling the obligations of the
Developer in respect of Projects, and in handling, prosecuting and settling
any claims of the Developer in respect of Projects, including the
foreclosure or other enforcement of any mortgage or other lien securing
investments.
SECTION 2.4 Upon the request of the Developer, Arvida shall use its
best efforts to see that the developing entity has good and valid title to
the assets of the Project; that any property forming part of a Project is
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duly insured against loss or damage by fire, with extended coverage, and
against such other insurable hazards and risks as are customary and
appropriate in the circumstances; that any mortgage securing any Project or
other investment of the Developer shall be a valid lien upon the mortgaged
property enforceable according to its terms; that any insurance or guaranty
issued by the Federal Housing Authority or the Veterans Administration upon
which the Developer relies in respect of its Projects is valid and in full
force and effect and enforceable according to its terms; that any commit-
ment to provide permanent financing on property with respect to which the
Developer is furnishing short-term financing and the financial status of
any lender making such commitment are satisfactory; and Arvida shall carry
out the policies from time to time specified by the Developer with regard
to the protection of the Developer's Projects.
SECTION 2.5 Upon the request of the Developer, Arvida shall perform
or cause to be performed on behalf of the Developer the following marketing
and brokerage services in connection with the Properties:
(a) Prepare and present to the Developer for approval a sales plan
establishing minimum criteria (including sales price criteria)
for sales of all or part of the Properties through the
performance of marketing services by Arvida (the "Sales Plan")
(and thereafter, as developed or required, all appropriate
revisions or replacements of the Sales Plan). The marketing of
each Property shall be substantially in accordance with the
Sales Plan in respect of each such Property. It is understood
and agreed that the Developer shall not be obligated to accept
any proposed offer for the purchase or lease of any properties
comprising the Properties;
(b) Negotiate such real estate brokerage arrangements with brokers
or agents as Xxxxxx xxxxx necessary or appropriate (subject to
the approval of the General Partner) in order to implement an
effective marketing program; provided, however, that Arvida or
any affiliate thereof may provide real estate brokerage
services directly to the Developer;
(c) Institute a marketing program for the sale of properties
comprising the Properties pursuant to the applicable Sales
Plan, but at such prices and on such terms as are contemplated
by such Sales Plan or as have otherwise been approved by the
Developer;
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(d) Recommend such advertising agents, and negotiate and assist the
Developer in entering into such advertising arrangements, as
Arvida shall deem to be necessary or appropriate in order to
implement an effective marketing program; and
(e) Negotiate such contracts and other documents as shall be agreed
to by the Developer (but the Developer shall have the sole
authority to execute all deeds, leases, contracts and other
documents that relate to the transfer of title to any Property
or any part thereof).
ARTICLE III - FUTURE COMMUNITIES
SECTION 3.1 For so long as this Agreement is in effect, the
Partnership will be entitled to receive a 10% interest in the net cash flow
of each property development developed by Arvida under the name "Arvida"
and using the personnel of Arvida, which are in the nature of master
planned residential communities (other than those Communities and other
assets acquired under, or as contemplated by, the Acquisition Agreement,or
as contemplated by the Prospectus (as hereinafter defined) which Arvida
acquires (or enters into an option to acquire) the right to develop on or
prior to the fourth anniversary of the date of the first admission to the
Partnership of holders of Assignee Limited Partnership Interests as
contemplated by the Partnership's prospectus (the "Prospectus") contained
in Registration Statement No. 33-14091 on Form S-1 (a "Future Community")
after payment of all costs and expenses and the return (the "Preferred
Return") to Arvida and its affiliates (including JMB Realty Corporation) of
cash flow equal to (i) their capital investment in any such Future
Community plus a 12% per annum cumulative, non-compounded return thereon
plus (ii) an amount equal to 2% per annum on a cumulative, non-compounded
basis of the amount of any indebtedness with respect to such Future
Community which was guaranteed by, or otherwise was recourse to, Arvida or
its affiliates; provided, however, that the Partnership's right to receive
any such 10% of net cash flow shall be reduced (but not below zero) to the
extent that, at any time such net cash flow would otherwise be
distributable, the then fair market value (as determined by the General
Partner) of all such Future Communities on any date on which distribution
would otherwise be made is less than an amount equal to the aggregate costs
and expenses related to the evaluation, selection and development of all
such Future Communities or potential Future Communities, including the
Preferred Return. In the event of any such reduction, the costs of other
Future Communities and potential Future Communities shall be reduced pro
rata by the reduction in net cash flow in which the Partnership would
otherwise participate. The interest of the Partnership in Future
Communities may take the form of a limited partnership interest. Net cash
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flow with respect to such Future Communities shall mean all cash receipts,
including the proceeds of any financing, less all operating and other
expenses (including salary and salary related expenses, rent, utilities and
other costs relating to the management, administration, evaluation,
selection and development of all such Future Communities), all debt service
(including principal and interest) and less additions to cash reserves,
exclusive of any amounts distributed to unaffiliated third-party joint
venturers.
SECTION 3.2 In connection with such activities involving Future
Communities, Arvida shall, on behalf of the owner or owners of such Future
Communities, investigate, select and conduct, all necessary relations with
third parties in respect thereof, and enter into appropriate contracts
with, or employ, retain or obtain services performed or to be performed by,
any such parties in connection with any (i) such Future Communities, or
(ii) mortgages or other investments acquired, sold or otherwise disposed of
or committed, negotiated, or contemplated to be acquired, sold or otherwise
disposed of by such owner or owners of Future Communities.
SECTION 3.3 The Partnership shall not participate in any future
real estate developments or projects other than its interest in the net
cash flow of Future Community developments as provided herein.
SECTION 3.4 It is understood that Arvida and affiliates of Arvida
may perform services similar in nature to those to be performed hereunder
for other partnerships, corporations, trusts or other entities in the
future, including entities which are affiliated with or sponsored by Arvida
or JMB or their affiliates.
ARTICLE IV - PARTNERSHIP'S RESPONSIBILITIES
SECTION 4.1 The Partnership shall provide full information to Arvida
regarding the Partnership's requirements for each Property.
SECTION 4.2 The Partnership shall designate, when necessary, a
representative authorized to act on the Partnership's behalf with respect
to each Property. The Partnership or such authorized representative shall
examine all documents submitted by Arvida and shall render decisions
pertaining thereto promptly.
SECTION 4.3 The Partnership shall furnish required information as
expeditiously as practicable for the orderly progress of the work in
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respect of each Property, and Arvida shall be entitled to rely upon the
accuracy and completeness thereof.
ARTICLE V - ARVIDA'S REIMBURSABLE EXPENSES
SECTION 5.1 Arvida shall be reimbursed by the Partnership for all
expenses incurred in respect of its performance hereunder and of the
obligations provided hereby ("Reimbursable Expenses"). Reimbursable
Expenses shall include all actual expenditures made by Arvida and its
employees and consultants with respect to the Properties (but in no event
in excess of the amount which would be charged by independent parties for
comparable services) for the following expenses:
(a) all salaries and salary-related expenses of Arvida employees
employed directly by Arvida in respect of the management and
development, advisory and supervisory services provided by
Arvida to the Partnership hereunder (the "Services"), and
(b) all direct expenses incurred by Arvida on the Partnership's
behalf in respect of the Services, including expenses of
transportation and living expenses in connection with
out-of-town travel, reasonable and necessary to perform its
duties and obligations hereunder.
The reimbursement of out-of-pocket expenses, including salary
expenses, to Arvida may not exceed 5% of the gross revenues from the
business of the Partnership.
ARTICLE VI - PAYMENTS TO ARVIDA
SECTION 6.1 Payments for Reimbursable Expenses shall be made monthly
upon presentation of a statement of services rendered and expenses incurred
or as otherwise provided in this Agreement. The Partnership's obligation
to pay for any Reimbursable Expense shall arise in the month during which
the Partnership, Arvida or their affiliates become obligated, or make a
cash payment, for such Reimbursable Expense.
ARTICLE VII - ACCOUNTING RECORDS
SECTION 7.1 Records of Reimbursable Expenses shall be kept on the
basis of generally accepted accounting principles and shall be provided to
the Partnership at mutually convenient times.
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ARTICLE VIII - ARVIDA'S RIGHT TO ENGAGE IN OTHER ACTIVITIES
SECTION 8.1 It is explicitly agreed that Arvida has other business
interests and may engage in other activities in addition to those relating
to the Partnership including the rendering of advice or services of any
kind to other investors or other persons (including, but not limited to,
affiliates of JMB and Arvida) and the management of properties for, among
others, affiliates of JMB or Arvida. Nothing in this Agreement shall limit
or restrict the right of any partner, director, officer or employee of
Arvida or its affiliates, whether or not an officer or employee of the
Partnership or joint venture in which the Partnership participates, to
engage in any other business or to render services of any kind to any other
partnership, corporation, firm, individual or association. Arvida shall
reimburse the Partnership for any goods, services and facilities of the
Partnership which it may be permitted to use in connection with projects
unrelated to the Partnership's business.
ARTICLE IX - TERM; TERMINATION OF AGREEMENT
SECTION 9.1 This Agreement shall continue in force for a period of
twenty (20) years from the date hereof, continuing thereafter from year to
year upon approval of the General Partner; PROVIDED, HOWEVER, that this
Agreement may be terminated without cause by the Partnership without
penalty upon sixty (60) days' written notice by the General Partner.
Arvida may terminate this Agreement without cause and without penalty (i)
upon sixty (60) days' written notice by the President of Arvida at such
time as no affiliate of JMB Realty Corporation is acting as a general
partner of the Partnership, or (ii) at any time that a material breach by
the Partnership under this Agreement has continued for a period of sixty
(60) days.
SECTION 9.2 This Agreement is not assignable without the written
consent of the non-assigning party, except (i) by Arvida to a corporation
or other person which controls, or is controlled by, or is under common
control with Arvida or (ii) by either Arvida or the Partnership, as the
case may be, to a successor to the business of such party; provided that,
in the case of the Partnership, the successor to the Partnership's business
shall be an affiliate of JMB. Any such assignee or successor entity shall
be bound hereunder and by the terms of said assignment in the same manner
as the assignor or predecessor entity is bound hereunder.
SECTION 9.3 At the option solely of the General Partner, this
Agreement shall be, and shall become, terminated immediately upon written
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notice of termination from the General Partner to Arvida, if any of the
following events shall happen:
(a) If Arvida shall violate any material provision of this
Agreement, and after having notice of such violation, Arvida fails to
cure such violation within thirty (30) days; or
(b) If Arvida shall be adjudged bankrupt or insolvent by a
court of competent jurisdiction, or an order shall be made by a court
of competent jurisdiction for the appointment of a receiver,
liquidator or trustee of Arvida, or of all or substantially all of
its property, or approving any petition filed against Arvida for its
reorganization, and such adjudication or order shall remain in force
or not stayed for a period of thirty (30) days; or
(c) If Arvida shall institute proceedings for voluntary
bankruptcy or shall file a petition seeking reorganization under the
Federal bankruptcy laws, or for relief under any law for the relief
of debtors, or shall consent to the appointment of a receiver of
itself or of all or substantially all of its property, or shall make
a general assignment for the benefit of its creditors, or shall admit
in writing its inability to pay its debts generally, as they become
due.
Arvida agrees that if any of the events specified in subdivisions (b)
and (c) of this Section 9.3 shall occur, it will give written notice
thereof to the General Partner within seven (7) days after the occurrence
of such event.
SECTION 9.4 In the event that this Agreement is not
renewed or is otherwise terminated, Arvida shall be paid all Reimbursable
Expenses specified in Section 5 hereof. The Partnership shall pay Arvida
all compensation due to Arvida on termination within thirty (30) days after
the effective date of such termination in cash.
SECTION 9.5 Upon termination of this Agreement by either party or by
its terms, the General Partner shall, upon the written request of Arvida,
change the name of the Partnership or of any entity owned or controlled by
the Partnership to a name not containing the name "Arvida" or any name or
names similar thereto, and sufficiently dissimilar to such name as to be
unlikely to cause confusion with such name, and the General Partner shall
not allude in any public statement or advertisement to the former associa-
tion, except as necessary to announce the change in the Partnership's name
(or the name of such owned or controlled entity) and as required by
applicable law. Arvida shall retain sole authority and control over the
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use of its name and of any trademarks owned by Arvida. Nothing in this
Agreement shall in any way restrict or limit the right of Arvida or any
affiliate thereof (other than the Partnership and any entity owned or
controlled by the Partnership) to use in any manner the name "Arvida" or
any approximation, whether or not in combination with any other names or
designations. Until the termination of this Agreement the Partnership and
any entity owned or controlled by the Partnership shall be authorized,
subject to the terms of that certain License Agreement attached hereto as
Exhibit A and incorporated by reference herein and subject to the terms and
conditions set forth herein to use the name "Arvida".
ARTICLE X - INDEMNIFICATION; LIABILITY
SECTION 10.1 Arvida and each of its directors, officers and
employees, respectively, shall be indemnified by the Partnership for any
liability suffered by them arising out of their activities under this
Agreement, except for fraud, bad faith or negligence by them.
SECTION 10.2 Arvida assumes no responsibility under this Agreement
other than to render the services called for hereunder in good faith and
shall not be responsible for any action of the General Partner in following
or declining to follow any advice or recommendations of Arvida. Arvida and
its directors, officers and employees, respectively, will not be liable to
the Partnership, except by reason of acts constituting fraud, bad faith or
negligence, and will not be liable to any third persons (other than the
Partnership and holders of interests therein to the extent provided above)
except by reason of fraud.
ARTICLE XI - MISCELLANEOUS
SECTION 11.1 By virtue of this Agreement, the Partnership and Arvida
are not partners or joint venturers with each other and nothing contained
herein shall be construed so as to make them such partners or joint
venturers in respect of this Agreement or to impose any liability as such
on either of them.
SECTION 11.2 Any notice required or permitted to be given hereunder
shall be in writing unless some other method of giving such notice is
accepted by the party to whom it is given. Notice shall be effective upon
delivery by mail, air courier, or other appropriate means to the following
addresses of the parties hereto:
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To the General Partner and/or the Partnership:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
To Arvida:
0000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Either party hereto may at any time give notice in writing to the
other party of a change of its address for the purpose of this Section
11.2.
SECTION 11.3 This Agreement shall not be changed, modified,
terminated or discharged in whole or in part except by an instrument in
writing signed by both parties hereto, or their respective permitted
successors or assigns, or as otherwise provided herein. This Agreement may
be modified only with the consent of the holders of the majority of the
limited partnership interests in the Partnership (except as to immaterial
or conforming amendments, which shall only require the consent of the
General Partner on behalf of the Partnership).
SECTION 11.4 The Article and Section headings hereof have been
inserted for convenience of reference only and shall not be construed to
affect the meaning, construction or effect of this Agreement.
SECTION 11.5 This Agreement shall bind any successors or assigns of
the parties hereto as herein provided.
SECTION 11.6 The provisions of this Agreement shall be construed and
interpreted in accordance with, and be governed by, the laws of the State
of Illinois as at the time in effect.
SECTION 11.7 It is agreed and understood that no person other than
Arvida, the General Partner and the Partnership will be entitled to rely
upon or enforce any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers thereunto duly authorized as of this 10th day
of September, 1987.
ARVIDA MANAGEMENT COMPANY
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: Vice President
ARVIDA/JMB PARTNERS, L.P.
By: ARVIDA/JMB MANAGERS, INC.,
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
----------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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EXHIBIT A
LICENSE AGREEMENT
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Agreement by and between Arvida Management Company, an Illinois
corporation ("Arvida"), and Arvida/JMB Partners, L.P., a limited
partnership organized and operating under the laws of Delaware
("Licensee").
WHEREAS, Arvida owns tradenames, trademarks and service marks in
respect of the name "Arvida" that it has used in connection with its
business activities including marks that are registered with state and
federal authorities as well as common law rights in those and other marks
and it is expected that Arvida may hereafter acquire ownership of
additional names, marks and registrations using the name "Arvida" (all such
names and marks using the "Arvida" name, including both registered and
common law marks, whether now owned or hereafter acquired being hereinafter
referred to collectively as "Marks"); and
WHEREAS, Arvida and Licensee have executed a Management, Advisory and
Supervisory Agreement (the "Supervisory Agreement") to which this License
Agreement is Exhibit A, and Arvida and Licensee wish to enable Licensee to
use such Marks in connection with Licensee's business activities upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants herein contained, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the parties hereto covenant and agree as follows:
1. GRANT OF NON-EXCLUSIVE LICENSEE
Upon the terms and conditions hereinafter set forth, Arvida
hereby grants to Licensee and Licensee hereby accepts a non-exclusive,
non-transferable license to use the Marks, in connection with Licensee's
business operations, including use of such Marks as part of Licensee's name
as well as their use for identification of Licensee's properties or
facilities contained therein, including but not limited to hotels, clubs,
commercial buildings and other similar properties or facilities. Licensee
shall have no interest in or right to use the Marks except as set forth
herein. This License extends to any and all Marks now owned or hereafter
acquired by Arvida to the date of expiration or termination of this
Agreement.
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2. NON-EXCLUSIVITY OF LICENSE
Nothing in this Agreement shall prevent Arvida from granting
any other licenses for the use of the Marks or from utilizing the Marks or
permitting the Marks to be utilized by others in any manner whatsoever.
3. TERM
The term of this License shall continue in force for as long as
the Supervisory Agreement shall be in effect, subject to earlier
termination in accordance with the provisions thereof and hereof.
4. OWNERSHIP OF MARKS
Licensee specifically acknowledges Arvida's ownership rights in
the Marks. In connection with the use of the Marks Licensee shall not in
any manner represent that it has any ownership in the Marks or any
registrations thereof and agrees that nothing in this Agreement shall give
Licensee any ownership interest in any of the Marks other than the right to
use the Marks in accordance with this Agreement.
Licensee will not, during the term of this Agreement or at any
time thereafter, attack the validity of any of the Marks or Arvida's
interests therein, nor will it attach any application for registration of
any of the Marks, or take any position contrary to that of Arvida in any
proceedings pertaining to registration of any of the Marks.
Licensee shall, whether during or after the term of this
Agreement, execute and deliver to Arvida such documents as Arvida may
reasonably request to establish or confirm Arvida's ownership interest in
the Marks.
5. QUALITY CONTROL
Licensee hereby agrees that it will follow the same quality
standards that Arvida's predecessors have heretofore used in connection
with any uses of any of the Marks licensed hereunder. Licensee agrees that
it will make no uses of the Marks that it believes would reflect adversely
upon Arvida and that it will obtain Arvida's prior approval of the quality
standards to be employed in connection with any uses of any of such Marks
differing from prior uses made by Arvida's predecessors. Arvida shall have
the right upon request to review all uses of any of such Marks as well as
the right to inspect (upon reasonable notice) any properties or other
products connected in any way with Licensee's uses of the Marks.
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Licensee agrees that Arvida shall have total discretion to
determine the propriety of any usage of any of such Marks or the quality
standards to be employed in respect thereof and Licensee agrees to forego
any objectionable use of the Marks upon written notification to Licensee
from Arvida that such use is objectionable. Once Arvida has notified
Licensee that it deems a particular usage of the Marks objectionable, any
repetition of such objectionable usage by Licensee after it has received
reasonable notice that Arvida objects to such use shall entitle Arvida in
its sole discretion to terminate this Agreement and any and all rights
granted to Licensee hereunder pursuant to paragraphs 9.b. and 10 hereof.
6. ASSIGNMENT OR SUBLICENSE BY LICENSEE
This Agreement and all rights and duties in and with respect to
the Marks hereunder are personal to Licensee and shall not, without the
prior written consent of Arvida, which consent may be withheld in Arvida's
sole discretion, be assigned, mortgaged, sublicensed or otherwise
encumbered or transferred by Licensee or by operation of law. Arvida,
however, may assign this Agreement and/or its rights and duties hereunder
to any person or entity without the consent of Licensee and upon such
assignment Arvida shall be relieved from any further liability under this
Agreement. Arvida shall furnish written notice of any such assignment to
Licensee.
7. UNAUTHORIZED USE
Licensee will notify Arvida in writing of any unauthorized use
of any of the Marks which come to Licensee's attention and Arvida will
proceed diligently, at its own expense and under its sole control, to
prevent any such unauthorized use of the Marks. In the event that Arvida
does not proceed diligently to prevent unauthorized use of the Marks,
Licensee shall have the right, at its own expense and under its sole
control, to proceed in its own name to prevent unauthorized use of the
Marks and, if required by law, to name Arvida as a co- plaintiff in any
such proceeding.
8. INFRINGEMENT
Licensee will notify Arvida promptly in writing of any claim
that the use of any of the Marks infringes the rights of others, or of the
institution of any legal actions or suits predicated upon such claimed
infringement, and any such suit or action will be diligently defended at
the sole expense of and under the sole control of Arvida.
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9. TERMINATION
a. This Agreement shall remain in effect throughout the term
stated in paragraph 3 above until and unless it is
earlier terminated pursuant to the terms of paragraph
9(b) below.
b. This Agreement may be terminated as follows:
i. By Arvida in the event that Licensee shall fail or
threaten to fail to perform any obligation imposed
upon Licensee by this Agreement or violate any
terms of this Agreement. Arvida will give Licensee
written notice setting forth the particulars of any
such breach and, unless Licensee has cured such
breach or is in the process of curing such breach
(in the sole judgment of Arvida), this Agreement
will terminate thirty (30) days after receipt by
Licensee of such written notice.
ii. In the event that the Supervisory Agreement
terminates for any reason, or in the event of its
expiration, this License Agreement shall
immediately and automatically terminate.
10. EFFECT OF TERMINATION OR EXPIRATION
On termination or expiration of this Agreement, all rights and
licenses granted to Licensee hereunder shall immediately and automatically
terminate. In such event, Licensee agrees, to discontinue all uses of the
Marks and any words confusingly similar thereto within ninety (90) days of
such termination or expiration, including but not limited to changing the
name of Arvida/JMB Partners, L.P. to a name not containing the name
"Arvida" or any name or names similar thereto, and sufficiently dissimilar
to such name as to be unlikely to cause confusion with such name. Neither
Licensee nor any affiliate of Licensee shall allude in any public statement
or advertisement to the former name, except as necessary to announce the
change in the Partnership's name (or the name of such affiliate) and as
required by applicable law. Licensee agrees that it will at no future time
adopt or use, without Arvida's prior written consent, a word or xxxx which
is reasonably likely to be similar to or confusing with any of the Marks.
Arvida shall retain sole authority and control over the use of its name and
over all of the Marks, and all rights in the Marks shall remain the
property of Arvida.
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11. ROYALTY
The license granted herein shall be royalty-free.
12. RESERVATION OF RIGHTS IN THE LICENSED MARKS
Rights in the Marks, other than those specifically granted
herein, are reserved by Arvida for its own use. Upon the termination of
this Agreement for any reason whatsoever, all rights to the Marks shall
revert to Arvida without the necessity of any act on its part.
13. UNENFORCEABLE PROVISIONS
If any provision of this Agreement, or any part hereof, is
declared unenforceable by a court of competent jurisdiction, each and every
other provision, or part hereof, shall continue in full force and effect.
14. NOTICES
All notices or communications required or permitted to be given
under this Agreement shall be in writing and shall be conclusively deemed
to have been received by a party hereto and to be effective in the manner
and as provided for in the Supervisory Agreement.
15. WAIVER
The failure or delay of Arvida or Licensee to insist upon the
performance of any of the terms or conditions of this Agreement or to
exercise or enforce any right or obligation herein conferred, shall not be
construed to be a waiver of any such terms, conditions, rights or
obligations and either party may, within the time provided by applicable
law, take measures to enforce any or all such rights and obligations.
16. GOVERNING LAW
This Agreement shall be construed and interpreted in accordance
with, and be governed by, the laws of the State of Illinois as of the time
in effect.
17. REMEDIES
In the event of the breach or default in the terms of this
Agreement by either party, the non-breaching or non-defaulting party shall
be entitled to all legal and equitable remedies provided by law.
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The parties to this Agreement agree that damages may be
insufficient to compensate Arvida in the event that any of the terms of the
Agreement are not complied with, and therefore agree that in such event,
Arvida may seek injunctive relief and specific performance of the terms
hereof, in addition to all other rights or remedies, and that to obtain
such an injunction Arvida shall not be required to show any actual damage
or to post any bond or other security.
18. HEADINGS
The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the interpretation
of this Agreement.
19. ENTIRE AGREEMENT
This Agreement and the Supervisory Agreement contain the entire
understanding between the respective parties hereto with respect to the
subject matter hereof. Neither this Agreement nor any provision hereof may
be modified, amended, changed, waived or discharged orally, but only by an
instrument in writing signed by the party against whom enforcement of the
modification, amendment, change, waiver or discharge is sought. However, in
the case of automatic termination of this Agreement, no writing shall be
required in order to effect such termination, except as otherwise expressly
provided herein.
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