Exhibit 4
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CONTRACT OF SALE
BY AND BETWEEN
ORLANDO RESORT CORPORATION,
a Delaware corporation
("Seller")
AND
ELW GOLF GROUP, INC.,
a Florida corporation
("Purchaser")
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TABLE OF CONTENTS
Article Page
INTRODUCTION / WITNESSETH 1
1. DEFINITIONS
Definitions .............................................1
2. PURCHASE AND SALE OF THE PROPERTY
Agreement to Purchase and Sell ..........................1
Independent Consideration ...............................1
Xxxxxxx Money Deposit ...................................2
3. REQUIREMENTS AND CONDITIONS OF CLOSING
Performance Prior to Closing ............................2
4. PAYMENT OF PURCHASE PRICE
Payment of Purchase Price ...............................6
5. CLOSING
Date and Location .......................................6
Delivery by Seller ......................................6
Delivery by Purchaser ..................................7
Recordation .............................................7
Closing Costs ...........................................8
6. CLOSING STATEMENT
Closing Statement .......................................8
7. PRORATIONS
Ad Valorem Taxes and Special Assessments ...............8
Prepaid Expenses, Deposits, and Deferred Income .........8
Accounts Receivable .....................................9
Accounts Payable .......................................9
Utilities ..............................................9
Insurance ..............................................10
[PAGE]
8. POSSESSION OF THE PROPERTY
Possession of the Property .............................10
9. RISK OF LOSS
Damage or Destruction .................................10
Repair .................................................10
10. CONDEMNATION
Effect of Taking ......................................11
11. SELLER'S REPRESENTATIONS AND WARRANTIES 11
12. .SELLER'S COVENANTS 14
13. .PURCHASER'S COVENANTS, REPRESENTATIONS, AND WARRANTIES 16
14. LIABILITIES AND INDEMNIFICATIONS
Liabilities ............................................17
Indemnification by Seller ..............................17
Indemnification by Purchaser ...........................17
15. PURCHASER'S OBLIGATIONS
Independent Corporation ................................18
Affiliate Companies ....................................18
16. DEFAULT
Event of Default .......................................18
17. REMEDIES
Seller's Remedies Prior to Closing .....................18
Seller's Remedies After Closing ........................19
Purchaser's Remedies Prior to Closing ..................19
Purchaser's Remedies After Closing .....................19
18. ARBITRATION
Arbitration ............................................19
19. NOTICES
Notices ................................................20
20. MISCELLANEOUS
Entire Agreement .......................................21
Exhibits ...............................................21
Bulk Sales Act .........................................21
Assignment .............................................21
Severability ...........................................22
Confidentiality ........................................22
Approvals ..............................................22
Construction and Interpretation of Agreement ..........22
Amendment and Waiver ...................................22
No Partnership or Joint Venture ........................23
Access and Information .................................23
Counterparts ...........................................23
Successors and Assigns .................................23
Time ...................................................23
Documentation ..........................................23
Brokers ................................................23
Captions ...............................................24
Governing Document .....................................24
Food and Beverage Management Agreement .................24
Attorneys' Fees ........................................24
EXECUTION / ATTESTATION 25
EXHIBITS TO CONTRACT OF SALE
BY AND BETWEEN
ORLANDO RESORT CORPORATION
AND
ELW GOLF GROUP, INC.
A:\b5102.1\c.wpd
DEFINITIONS ....................................................A
SELLER'S NONFOREIGN STATUS AFFIDAVIT .......................... B
CONTRACTS ......................................................C
CLUB MEMBERSHIP REPRESENTATIONS ................................D
[INTENTIONALLY OMITTED] ........................................E
ASSIGNMENT OF BONDS, WARRANTIES, AND GUARANTIES ................F
ASSIGNMENT OF CONTRACTS ........................................G
ASSIGNMENT OF WATER RIGHTS .....................................H
XXXX OF SALE ..................................................I
SELLER'S BRINGDOWN CERTIFICATE ................................ J
PURCHASER'S BRINGDOWN CERTIFICATE ............................. K
DEED ...........................................................L
EXISTING PERSONAL PROPERTY CONDITIONS ..........................M
EXISTING REAL PROPERTY CONDITIONS ............................. N
REAL PROPERTY ..................................................O
TANGIBLE PERSONAL PROPERTY .....................................P
CONTRACT OF SALE
THIS AGREEMENT, made on this 5th day of December, 1997, by and
between ORLANDO RESORT CORPORATION, a Delaware corporation (hereinafter
referred to as "Seller"), and ELW GOLF GROUP, INC., a Florida
corporation (hereinafter referred to as "Purchaser"), is as follows:
W I T N E S S E T H
WHEREAS, Seller desires to sell to Purchaser the country club
complex generally known as "Sabal Point Country Club," located in
Seminole County, Florida, consisting of one (1) 18-hole golf course,
clubhouse, cart storage building, and maintenance building, together
with all furniture, fixtures, equipment, licenses, permits, tangible and
intangible assets, and rights related thereto and/or used in connection
with the operation and use thereof, and Purchaser desires to purchase
from Seller said country club complex, together with all furniture,
fixtures, licenses, permits, tangible and intangible assets, and rights
related thereto and/or used in connection with the operation and use
thereof,
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are mutually acknowledged, the parties hereto
agree as follows:
ARTICLE 1.
DEFINITIONS
1.1. Definitions. All capitalized terms referenced or used in
this Agreement and not specifically defined herein shall have the
meaning set forth on Exhibit A, which is attached hereto.
ARTICLE 2.
PURCHASE AND SALE OF THE PROPERTY
2.1. Agreement to Purchase and Sell. In consideration of the
payment by Purchaser to Seller of the sum of FIVE MILLION EIGHT HUNDRED
THOUSAND DOLLARS ($5,800,000.00) (the "Purchase Price"), Seller hereby
agrees to sell the Property to Purchaser and Purchaser hereby agrees to
purchase the Property from Seller upon the terms and conditions set
forth herein.
2.2. Independent Consideration. Contemporaneously with the
execution of this Agreement, Purchaser hereby delivers to Seller and
Seller hereby acknowledges the receipt of a monetary sum in the amount
of ONE HUNDRED DOLLARS ($100.00) (the "Independent Consideration"),
which amount the parties bargained for and agreed to as consideration of
Purchaser's exclusive option to purchase the Property as provided
herein, and for Seller's execution, delivery, and performance of this
page 1
Agreement. The Independent Consideration is in addition to and
independent of any other consideration or payment provided in this
Agreement, is nonrefundable, and shall be retained by Seller,
notwithstanding any other provision of this Agreement. Notwithstanding
anything herein to the contrary, Purchaser's option to purchase the
Property hereunder shall terminate upon the termination of this
Agreement by its own terms or by Purchaser or Seller pursuant to any
right to terminate provided herein.
2.3. Xxxxxxx Money Deposit. Contemporaneously with the Effective
Date, Purchaser shall deliver the Xxxxxxx Money Deposit to the Title
Company and it shall be placed in an interest bearing account in the
name of the Title Company. The proceeds shall be tendered by the Title
Company to Seller or Purchaser, as the case may be, in accordance with
the terms and conditions hereof. In addition to any other provisions
hereof, if this Agreement is terminated by Purchaser, at its sole
option, pursuant to Article 3, Article 9, Paragraph 12.1.1, or
Section 17.3, the Title Company shall promptly return the Xxxxxxx Money
Deposit and accrued interest to Purchaser after receiving notice of such
termination from Purchaser.
ARTICLE 3.
REQUIREMENTS AND CONDITIONS OF CLOSING
3.1. Performance Prior to Closing. Upon execution of this
Agreement, Purchaser and/or Seller, as the case may be, agree to perform
the following within the time stated, each of which shall be a condition
precedent to Closing (collectively, the "Conditions Precedent"):
3.1.1. Title Commitment. Purchaser shall obtain the Commitment, if
any. Purchaser shall have until the expiration of December 19, 1997, to
examine the conditions of the title and the Existing Real Property
Conditions, and approve or disapprove the same. In the event the title
to the Real Property, as shown on the Commitment, or any of the Existing
Real Property Conditions, shall be disapproved in writing by Purchaser,
Seller shall have a period of thirty (30) days from receipt of
Purchaser's written notice of disapproval in which to cure any title
defect or exception specified by Purchaser or not permitted under this
Agreement (the "Title Objections"), and Seller agrees to use reasonable
efforts to do so; provided, however, in no event shall Seller's
liability to cure such defects or exceptions, other than mortgages or
deeds of trust granted by Seller, exceed FIFTEEN THOUSAND DOLLARS
($15,000.00) in the aggregate. If Seller shall be unable to cure the
Title Objections within the time period permitted above, Seller shall
advise Purchaser in writing. If Seller does not cure the Title
Objections to Purchaser's personal satisfaction within the permitted
time, Purchaser may (i) terminate this Agreement upon written notice to
Seller, and the parties hereto shall be released from all obligations
hereunder, or (ii) waive in writing those Title Objections which Seller
is unable to cure after a good faith effort by Seller to cure same and
proceed to close this Agreement pursuant to the provisions hereof, or
(iii) extend the time for an amount of time Purchaser, in its sole
discretion, deems necessary for Seller to cure the Title Objections.
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3.1.2. Survey. Purchaser shall obtain the Survey, if any, at
Purchaser's sole cost. Purchaser shall have until the expiration of
December 19, 1997, to approve or disapprove the Survey. If Purchaser
shall disapprove such Survey in writing, Seller shall have a period of
thirty (30) days after receipt of Purchaser's written notice of
disapproval in which to cure any defect to the Survey specified by
Purchaser or not permitted under this Agreement (the "Survey
Objections"), and Seller agrees to use reasonable efforts to do so;
provided, however, in no event shall Seller's liability to cure such
defects exceed FIFTEEN THOUSAND DOLLARS ($15,000.00) in the aggregate.
If Seller shall be unable to cure the Survey Objections within the time
period permitted above, Seller shall advise Purchaser in writing. If
Seller does not cure the Survey Objections to Purchaser's personal
satisfaction within the permitted time, Purchaser may (i) terminate this
Agreement upon written notice to Seller, and the parties hereto shall be
released from all obligations hereunder, or (ii) waive in writing those
Survey Objections which Seller is unable to cure after a good-faith
effort by Seller to cure same and proceed to close this Agreement
pursuant to the provisions hereof, or (iii) extend the time for an
amount of time Purchaser, in its sole discretion, deems necessary for
Seller to cure the Survey Objections.
3.1.3. UCC Search on Personal Property. Purchaser shall obtain the
Uniform Commercial Code search, if any, for each county and state in
which any of the Real Property, Improvements, or Tangible Personal
Property is located and where Seller has its principal place of business
(collectively, the "UCC Searches"). Purchaser shall have until the
expiration of December 19, 1997, to examine the UCC Searches and the
Existing Personal Property Conditions, and approve or disapprove the
same in writing. In the event Purchaser disapproves in writing any of
the UCC Searches or any of the Existing Personal Property Conditions,
Seller shall have a period of thirty (30) days after receipt of
Purchaser's written notice of disapproval in which to cure any defect or
exception specified by Purchaser or not permitted under this Agreement
(the "Personal Property Objections"), and Seller agrees to use
reasonable efforts to do so. If Seller shall be unable to cure the
Personal Property Objections within the time period permitted above,
Seller shall advise Purchaser in writing. If Seller does not cure the
Personal Property Objections to Purchaser's personals satisfaction
within the permitted time, Purchaser may (i) terminate this Agreement
upon written notice to Seller, and the parties hereto shall be released
from all obligations hereunder, or (ii) waive in writing those Personal
Property Objections which Seller is unable to cure after a good faith
effort by Seller to cure same and proceed to close this Agreement
pursuant to the provisions hereof, or (iii) extend the time for an
amount of time Purchaser, in its sole discretion, deems necessary for
Seller to cure the Personal Property Objections.
3.1.4. Contracts and Agreements. On or before fifteen (15) days
after the Effective Date, Seller shall deliver to Purchaser, at Seller's
sole cost, true, correct, and complete copies of all the contracts and
other instruments, contracts, licenses, and agreements which affect the
ownership, operation, or use of the Property (the "Contracts"),
including, but not limited to, (i) any and all leases, security deposit
page 3
agreements, letters of credit, service contracts, utility agreements,
construction contracts, licenses, permits (including water, waste water
and underground storage tanks, if any), and employment agreements, if
any, (ii) all development permits and insurance policies applicable to
the Real Property, Improvements, or Tangible Personal Property,
(iii) all documents evidencing, affecting, or relating to loans secured
by liens against the Real Property or the Personal Property, (iv) a
current profit and loss statement, balance sheet, and the general ledger
relating to the operation of the Club and the Real Property, (v) tax
bills and receipts for current real estate and personal property taxes,
and (vi) all development plans, plats, architectural drawings, plans,
specifications, renderings, floor plans, engineering plans and studies,
environmental and toxic waste studies and information (including
wetlands and endangered species habitat located on the Real Property),
surveys, site plans, soil and substrata studies, utility schemes, and
landscape plans available to Seller covering, affecting, or relating to
any of the Real Property or the Improvements. Purchaser shall have
until the expiration of December 19, 1997, to examine such documents.
All agreements with business terms reasonably acceptable to Purchaser,
shall be assigned to Purchaser at Closing pursuant to the Assignment of
Contracts (the "Approved Contracts"). In the event Purchaser
disapproves any of the items delivered by Seller to Purchaser above,
Seller shall have a period of ten (10) days from receipt of Purchaser's
written notice of disapproval in which to cure any defect or exception
specified by Purchaser or not permitted under this Agreement (the
"Contract Objections"), and Seller agrees to use reasonable efforts to
do so. If Seller shall be unable to cure the Contract Objections within
the time period permitted above, Seller shall advise Purchaser in
writing. If Seller does not cure the Contract Objections, to
Purchaser's personal satisfaction, within the permitted time, Purchaser
may (i) terminate this Agreement upon written notice to Seller, and the
parties hereto shall be released from all obligations hereunder, or
(ii) waive in writing those Contract Objections which Seller is unable
to cure after a good faith effort by Seller to cure same and proceed to
close this Agreement pursuant to the provisions hereof, or (iii) extend
the time for an amount of time Purchaser, in its sole discretion, deems
necessary for Seller to cure the Contract Objections.
3.1.5. Feasibility Period. For the period commencing with the
Effective Date until the expiration of December 19, 1997 (the
"Feasibility Period"), Seller shall permit Purchaser and any of its
officers, employees, agents, attorneys, accountants, appraisers,
architects, engineers, consultants, lenders, or other representatives as
designated by Purchaser (collectively, "Purchaser's Representatives")
access to Seller's books and records relating to the ownership and
operation of the Property and access to and entry upon the Real
Property, to examine, inspect, measure, and test the Property and to
conduct such financial audits and verifications as they shall deem
reasonably necessary (collectively, the "Inspections"). Seller through
the Seller's Representatives and upon request from Purchaser shall
cooperate with Purchaser and Purchaser's Representatives in conducting
the foregoing activities. Without limitation of the foregoing, it is
acknowledged that Purchaser and Purchaser's Representatives shall have
the right to conduct financial audits with respect to Seller's current
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fiscal year operations. Seller hereby consents to Purchaser or
Purchaser's Representatives (i) conducting a Phase I environmental site
assessment of the Property (the "Phase I Study"), and (ii) a structural
review of the Improvements (the "Structural Report"). The costs of
conducting and obtaining the Phase I Study and the Structural Report
shall be the responsibility of Purchaser. In the event any of
Purchaser's Representatives recommends additional environmental review
after conducting the Phase I Study, Seller through Seller's
Representatives, shall permit Purchaser and Purchaser's Representatives'
access to and entry upon the Real Property for such additional review;
provided, however, that no invasive inspection shall be performed
without one of Seller's Representatives' prior written consent (which
consent shall not be unreasonably withheld or delayed). Purchaser shall
give not less than twenty-four (24) hours prior written or oral notice
to Seller's Representatives prior to any entry upon the Real Property or
Improvements for the purpose of conducting such Inspections, and such
entry shall be scheduled and coordinated with Seller's Representatives.
At Seller's election, a representative of Seller shall be present during
any entry by Purchaser or Purchaser's Representative upon the Property
for conducting said Inspections. Purchaser shall not cause or permit
any mechanic's liens, materialmen's liens, or other liens to be filed
against the Property as a result of the Inspections. Purchaser shall
repair and restore any damage to the Property caused by entry upon the
Real Property or Improvements by Purchaser or the other Purchaser's
Representatives, except to the extent Seller's negligence or willful
acts contributed to such damage. Purchaser shall indemnify, defend, and
hold harmless Seller and Seller's officers, directors, shareholders,
partners, tenants, agents, and employees (collectively, the "Indemnified
Parties"), from and against any and all actions, losses, costs, damages,
claims, liabilities, and expenses (including court costs and reasonable
attorneys' fees) brought, sought, or incurred by or against any of the
Indemnified Parties resulting from, arising out of, or relating to,
entry upon the Real Property or Improvements by Purchaser or any of the
other Purchaser's Representatives, except to the extent Seller's
negligence or willful acts contributed to same. The foregoing
indemnification and repair and restoration obligations (collectively,
"Purchaser's Indemnity") shall expressly survive the termination of this
Agreement for a period of one (1) year after the termination of this
Agreement or Closing. If Purchaser notifies Seller in writing on or
before the end of the Feasibility Period that the Property or any other
item is unsatisfactory for any reason whatsoever, in Purchaser's sole
discretion, Purchaser may, upon written notice to Seller, terminate this
Agreement, and the parties hereto shall be released from all obligations
hereunder. If Purchaser fails to terminate this Agreement in accordance
with its right to terminate on or before the end of the Feasibility
Period, Purchaser shall have no further right to terminate this
Agreement pursuant to this Paragraph.
3.1.6. Inventory. Not earlier than five (5) days or later than two
(2) days prior to the Closing Date, Seller shall conduct a complete,
itemized, and detailed inventory of the Tangible Personal Property.
Seller shall give Purchaser at least two (2) days actual notice prior to
page 5
such inventory, and Purchaser shall be entitled to have a representative
present for the inventory. Seller and Purchaser shall certify the
inventory to be true and accurate as of the day of taking. After such
inventory is taken, Seller shall make changes thereto only in the normal
and ordinary course of business.
ARTICLE 4.
PAYMENT OF PURCHASE PRICE
4.1. Payment of Purchase Price. The Purchase Price shall be payable
in cash, cashier's check, or wire transfer at Closing.
ARTICLE 5.
CLOSING
5.1. Date and Location. Provided Purchaser has not exercised
Purchaser's right to terminate as set forth herein, Closing shall be
held at 10:00 a.m. on or before January 31, 1998, if all of the
Conditions Precedent to Closing set forth herein shall have been
satisfied or waived, or such earlier or later date as may be mutually
agreed upon in writing by the parties hereto. In the event Purchaser
elects to extend any of the time periods set forth in Article 3 to allow
Seller additional time to cure any objection raised by Purchaser, the
Closing Date shall be extended for the same period, but in no event
shall the Closing Date be extended more than sixty (60) days unless
agreed to in writing by both parties. Closing shall be held at the
offices of the Title Company, or such other location mutually acceptable
to Seller and Purchaser.
5.2. Delivery by Seller. At Closing, Seller shall cause to be
delivered to Purchaser the following documents and instruments, all of
which shall be dated on or effective as of the Closing Date (the
"Closing Documents"):
5.2.1. The Deed, duly executed and acknowledged by Seller,
conveying to Purchaser good, marketable, and indefeasible title to the
Real Property and the Improvements, subject only to the Permitted
Exceptions;
5.2.2. The Assignment of Contracts, duly executed by Seller,
assigning to Purchaser all of Seller's interest in the Approved
Contracts;
5.2.3. The Xxxx of Sale, duly executed by Seller, conveying to
Purchaser good, indefeasible, and marketable title to the Personal
Property, subject only to the Permitted Exceptions;
5.2.4. The Assignment of Bonds, Warranties, and Guaranties, duly
executed by Seller, assigning to Purchaser all guaranties and warranties
pertaining to the Property such as they exist;
page 6
5.2.5. The Assignment of Water Rights, duly executed by Seller,
assigning to Purchaser all water rights held by Seller and related to
the Property;
5.2.6. A Bringdown Certificate, duly executed by Seller;
5.2.7. A nonforeign status affidavit from Seller in favor of
Purchaser in the form of Exhibit B attached hereto;
5.2.8. The Xxxxxxx Money Deposit, including any interest accrued
thereon to be paid to Seller and credited against the Purchase Price;
5.2.9. An IRS Allocation Form, duly executed by Seller;
5.2.10. A resolution authorizing the consummation of the purchase
and sale transaction contemplated hereby and delivery of the closing
documents on behalf of Seller; and
5.2.11. All other documents reasonably required to be effectuate the
transaction contemplated hereby in the manner described herein.
5.3. Delivery by Purchaser. At Closing, Purchaser shall cause to
be delivered to Seller the following documents, instruments, and items,
all of which shall be dated on or effective as of the Closing Date:
5.3.1. The Purchase Price;
5.3.2. The Assignment of Contracts, duly executed by Purchaser;
5.3.3. A Bringdown Certificate, duly executed by Purchaser;
5.3.4. An IRS Allocation Form, duly executed by Purchaser;
5.3.5. A board resolution authorizing the consummation of the
purchase and sale transaction contemplated hereby and delivery of the
closing documents on behalf of Purchaser; and
5.3.6. All other documents reasonably required to effectuate the
transaction contemplated hereby in the manner described herein.
5.4. Recordation. Upon the completion of the deliveries specified
in this Article, the Title Company shall be authorized to cause the
appropriate closing documents to be immediately recorded in Seminole
County, Florida.
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5.5. Closing Costs. At or prior to Closing, Seller shall pay
(i) one-half (1/2) of all premium and other charges and costs incident to
the issuance of the Commitment and the Owner's Title Policy,
(ii) recording fees for UCC terminations, (iii) recording fees for any
Easements, and (iv) all documentary transfer taxes, deed stamps, fees,
or any other costs associated with the sale of the Property and
recording of the Deed. At Closing, Purchaser shall pay (i) one-half (/)
of all premium and other charges and costs incident to the issuance of
the Commitment and Owner's Title Policy, (ii) any survey endorsements,
(iii) Mortgage Documentary Stamp Fares, (iv) recording fees for
Purchaser's Mortgage, and (v) recording fees for UCC filings.
Prorations shall be in accordance with the provisions of this Agreement.
All other escrow and costs of Closing shall be allocated to and paid by
Seller and Purchaser at Closing in accordance with the manner in which
such costs are customarily borne by such parties in Seminole County,
Florida; provided, however, each party shall be responsible for the
payment of the fees and expenses of its respective legal counsel.
ARTICLE 6.
CLOSING STATEMENT
6.1. Closing Statement. A closing statement, in a form acceptable to
both parties, shall be prepared by the Title Company and executed by the
parties hereto at Closing, which closing statement shall evidence the
monetary terms of this transaction.
ARTICLE 7.
PRORATIONS
7.1. Ad Valorem Taxes and Special Assessments. General ad valorem
taxes and special assessments, if any, shall be prorated as of the
Closing Date. If Closing shall occur before the tax rate is fixed for
the tax year in which Closing shall occur, the apportionment shall be
based on the tax rate for the previous tax year applied to the latest
assessed valuation of the Property. In such event, at such time as the
tax rate is fixed for the tax year in which Closing shall occur, general
ad valorem taxes and special assessments shall be readjusted. If the
amount that Seller would have paid had such tax rate been fixed at the
time of Closing exceeds the amount which Seller actually paid at the
time of Closing, Seller shall immediately pay over to Purchaser the
amount of such excess upon Purchaser's written request for same. If the
amount that Seller would have paid had such tax rate been fixed at the
time of Closing is less than the amount actually paid by Seller at the
time of Closing, Purchaser shall immediately pay over to Seller the
amount of such overpayment, upon Seller's written request for same. All
taxes and assessments of any nature whatsoever attributable to the
period prior to Closing because of a change in the use of the Property
shall be the obligation of Seller, regardless of when they are assessed.
7.2. Prepaid Expenses, Deposits, and Deferred Income. All prepaid
expenses, deposits, and deferred income, including, but not limited to,
dues, fees, locker rentals, and bag storage charges, which arose by
virtue of the operation of the Club and which Seller has collected or
received a credit for, shall be prorated as of the Closing Date.
page 8
7.3. Accounts Receivable. All of Seller's Receivables shall remain
the property of Seller. In order to facilitate the collection of
Seller's Receivables, Purchaser agrees to attempt to collect same for
the benefit of Seller for a period of one hundred twenty (120) days
following the Closing Date. Purchaser shall account for and pay to
Seller all of Seller's Receivables collected by Purchaser within fifteen
(15) days following each billing date which occurs after the Closing
Date, but before one hundred twenty (120) days following the Closing
Date. Purchaser shall make a final accounting and payment to Seller
within one hundred thirty five (135) days following the Closing Date.
Purchaser's obligation to collect Seller's Receivables shall not be
greater than Purchaser's efforts to collect accounts receivable owing to
Purchaser, and if any of Seller's Receivables shall remain unpaid one
hundred thirty five (135) days after the Closing Date, Purchaser shall
advise Seller of such accounts receivable, including the name of the
debtor and the amount owing, and Purchaser shall thereafter have no
further obligation with respect to Seller's Receivables.
7.3.1. Regardless of payee designation, all payments received on
account by Purchaser or Seller from a Club member who has an outstanding
Seller's Receivable shall be presumed to be payments in respect to the
oldest accounts receivable then outstanding.
7.3.2. Seller shall have the right to review Purchaser's books and
records at reasonable intervals and on reasonable notice to verify
Purchaser's compliance with this Section.
7.3.3. Seller may, in its sole discretion and in addition to the
obligations of Purchaser as hereinabove defined, exercise any and all
efforts to collect delinquent Seller's Receivables, including resort to
legal action, subject to the Club's bylaws and accounts receivable
procedure. All such efforts by Seller shall be at its sole cost and
expense.
7.4. Accounts Payable. All of Seller's Payables shall be Seller's
sole responsibility. At the request of Purchaser, Seller shall, within
ten (10) days following such request, furnish Purchaser satisfactory
evidence that any account payable received has been paid when due or is
being contested in good faith by Seller or, in the absence of such
satisfactory evidence, Purchaser may, (ii) offset against any amounts
due from Purchaser to Seller (including, but not limited to, Seller's
Receivables) any amounts needed to pay Seller's Payables, or
(iii) pursue any other remedy granted herein. Notwithstanding anything
to the contrary recited herein, in no event shall Seller delay the
payment of any of Seller's Payables that would interfere or disrupt the
operation of the Club.
7.5. Utilities. Seller shall cause the companies and
municipalities furnishing utility services to the Real Property and the
Improvements to make termination readings on the morning of the Closing
Date, or on a date as soon thereafter as possible, and to submit final
statements for utility services, which Seller agrees to pay in a timely
manner.
page 9
7.6. Insurance. Insurance, if any, carried by Seller on the Real
Property, Improvements, and Tangible Personal Property shall be
terminated effective as of Closing. Purchaser shall be solely
responsible for acquiring insurance coverage on the Real Property,
Improvements, and Tangible Personal Property after Closing.
ARTICLE 8.
POSSESSION OF THE PROPERTY
8.1. Possession of the Property. Possession of the Real
Property, Improvements, and Tangible Personal Property shall be
transferred by Seller to Purchaser at Closing.
ARTICLE 9.
RISK OF LOSS
9.1. Damage or Destruction. Risk of loss until Closing shall be
borne by Seller. In the event that damage or destruction of the Real
Property, Improvements, or Tangible Personal Property, or any part
thereof, by fire or other casualty occurs prior to Closing, Purchaser
shall elect in writing, at its option, one of the following:
9.1.1. To terminate this Agreement, in which event each party shall
be released from all obligations hereunder and the Xxxxxxx Money Deposit
shall immediately be returned to Purchaser by the Title Company; or
9.1.2. To request that Seller repair and/or replace such damaged or
destroyed Real Property, Improvements, or Tangible Personal Property.
If Seller, at its sole option, elects to do so, the Closing Date shall
be extended for a reasonable time in order to allow Seller to repair
such damage to the Real Property, Improvements, or Tangible Personal
Property, and Seller shall proceed diligently to complete such repairs.
If Seller, at its sole option, elects not to do so, Purchaser may
terminate this Agreement as provided in Paragraph 9.1.1; or
9.1.3. To accept from Seller the assignment of any insurance
proceeds payable by reason of such damage or destruction and to proceed
with Closing.
9.2. Repair. In the event that Seller is required to repair any
damage whatsoever to the Real Property, Improvements, or Tangible
Personal Property, Seller shall repair and restore the Real Property,
Improvements, or Tangible Personal Property to the condition in which it
existed immediately prior to such damage or destruction.
page 10
ARTICLE 10.
CONDEMNATION
10.1. Effect of Taking. In the event that any portion of the Real
Property or the Improvements is taken by right of eminent domain or
condemnation prior to Closing, Purchaser shall elect in writing, at its
option, one of the following:
10.1.1. To terminate this Agreement, in which event each party shall
be released from all obligations hereunder and the Xxxxxxx Money Deposit
shall immediately be returned to Purchaser by the Title Company; or
10.1.2. To accept the condemnation proceeds and to proceed with
Closing.
ARTICLE 11.
SELLER'S REPRESENTATIONS AND WARRANTIES
11.1. Seller makes the following representations and warranties to
Purchaser, which representations and warranties shall survive the
execution and delivery of this Agreement and shall be true and correct
in all material respects on the Closing Date:
11.1.1. Corporate Status. Seller is a Delaware corporation duly
organized, validly existing, and in good standing under the laws of the
State of Florida, with full corporate power to enter into this Agreement
and execute all documents required hereunder.
11.1.2. Authorization. The making, execution, delivery, and
performance of this Agreement by Seller has been duly authorized and
approved by the Board of Directors of Seller and constitutes a valid and
binding obligation, enforceable in accordance with its terms.
11.1.3. Violation of Agreement. Neither the execution and delivery
of this Agreement by Seller nor Seller's performance of any obligation
hereunder (i) will constitute a violation of any law, ruling,
regulation, or order to which Seller is subject, or (ii) shall
constitute a default of any term or provision or shall cause an
acceleration of the performance required under any other agreement or
document to which (a) Seller is a party or is otherwise bound, or
(b) the Property or any part thereof is subject.
11.1.4. Governmental Agencies. To the best of Seller's knowledge,
there are no existing conditions in or about the Real Property,
Improvements, or Tangible Personal Property, or otherwise, which are in
material violation of any city, county, state, or federal law,
ordinance, or regulation. Seller has not received any notice, written
or otherwise, from any governmental agency requiring the correction of
page 11
any condition with respect to the Real Property, Improvements, or
Tangible Personal Property which is in material violation of any law,
ordinance, or regulation.
11.1.5. Title to Property. Seller shall have at the time of Closing
good, marketable, and indefeasible title to the Property, free and clear
of all liens, claims, and encumbrances of any nature, except for (i) the
Existing Real Property Conditions, and (ii) the Existing Personal
Property Conditions.
11.1.6. Litigation, Claims, or Proceedings. To the best of Seller's
knowledge, there are no existing or pending actions, suits, litigation,
claims, proceedings, or governmental investigations with respect to any
aspect of the Property or the Club or affecting Seller's right to enter
or perform this Agreement, nor, to the knowledge of Seller, have any
such actions, suits, litigation, claims, proceedings, or governmental
investigations been threatened or asserted.
11.1.7. Contracts. To the best of Seller's knowledge, there are no
outstanding contracts, commitments, leases, or agreements of any nature
to which the Club, Seller, or the Property is or may become subject,
except the Contracts. If, subsequent to the date of this Agreement,
Seller or Purchaser determines that there are contracts to which the
Club, Seller, or the Property is or may become subject and such
contracts are not included in Exhibit C attached hereto, Purchaser may,
at its option, elect to have all or less than all of such contracts
deemed to be included in Exhibit C attached hereto.
11.1.8. Club Membership. To the best of Seller's knowledge, except
as set forth on Exhibit D attached hereto, there are no representations,
covenants, restrictions, or agreements, whether express or implied
(including any rule, regulation, or bylaw relating to membership), made
by Seller concerning (i) the total allowable number of members or
classes of membership in the Club, (ii) qualifications or approval
required for new members, (iii) the amount of initiation fees, deposits,
restrictions, or waiver of monthly dues, court fees, or other fees to be
charged to the membership for their usage of the Real Property and the
Improvements, or (iv) the rights of members of the Club.
11.1.9. Environmental Laws. To the best of Seller's knowledge, for
the period from November 12, 1997 through the Closing Date, Seller has
and will not dispose or release any hazardous substance or solid waste
on or to the Property (the terms "hazardous substance" and "release"
shall have the meanings specified in Comprehensive Environmental
Response Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986 [as amended from
time to time, hereinafter referred to as "CERCLA"], and the terms "solid
waste" and "disposal," or "disposed," shall have the meanings specified
in the Resource Conservation and Recovery Act of 1976, the Sold Waste
Disposal Act Amendments of 1980, and the Hazardous and Solid Waste
Amendments of 1986 [as amended from time to time, hereinafter referred
to as "RCRA"]; provided to the extent that the laws of the State of
page 12
Florida, as currently enacted, establish a meaning for "hazardous
substance," "release," "solid waste" or "disposal" which is broader than
that specified in either CERCLA or RCRA, such broader meaning shall
apply). If Seller receives notice of any such pending claim or action,
it shall provide Purchaser with a copy thereof within three (3) days of
its receipt.
11.1.10. Employees. Seller acknowledges that Purchaser is acquiring
only the Property and the Club and is not obligated to retain any
employee and is not assuming any employment agreement of any nature
between Seller and its employees. Seller shall indemnify and hold
Purchaser harmless against any claims arising out of the terminations of
any employees by Seller and related to such terminations, including,
without limitation, any claims filed with the Equal Employment
Opportunity Commission.
11.1.11. Retirement Plan; Deferred Compensation. Purchaser shall not
assume or be responsible for, and Seller shall indemnify Purchaser and
save Purchaser harmless from, liability for any claims, coverages,
reimbursements, or any other liabilities to any employee, beneficiary,
or other person or entity in connection with any of Seller's employee
plans (including, without limitation, any welfare benefit plans) or by
reason of any action by Seller or any of its subsidiaries or other
affiliates, or any administrator or fiduciary or other person or entity,
with respect to any of Seller's employee plans, whether before, on, or
after Closing. Seller shall be solely liable and responsible for any
and all assets, liabilities, and benefits accrued under Seller's
qualified pension and savings plans as of Closing. Purchaser shall not
assume, and Seller shall indemnify Purchaser and save Purchaser harmless
from, any liability or obligation whatsoever with respect to Seller's
pension and savings plans prior to, on, or after Closing.
Notwithstanding anything to the contrary contained herein, any
representation made in this Paragraph by Seller concerning Seller's
employees shall be limited to those persons employed at the Club.
11.1.12. COBRA. Seller agrees to pay and be liable to Purchaser and
its affiliates and shall assume, indemnify, defend, and hold harmless
Purchaser and its affiliates from and against and in respect of any and
all losses, damages, liabilities, taxes, sanctions that arise under
Section 4980B of the Internal Revenue Code of 1986 (the "Code"),
interest and penalties, costs and expenses (including, without
limitation, disbursements and reasonable legal fees incurred in
connection therewith and in seeking indemnification therefor, and any
amounts or expenses required to be paid or incurred in connection with
any action, suit, proceeding, claim, appeal, demand, assessment, or
judgment) imposed upon, incurred by, or assessed against Purchaser or
any of its affiliates or any of their respective employees arising by
reason of or relating to any failure by Seller to comply with the
continuation health care coverage requirements of Section 4980B of the
Code and Sections 601 through 608 of the Employee Retirement Income
page 13
Security Act of 1974 ("ERISA") which failure occurred with respect to
any current or prior employee of Seller from November 12, 1997 forward
or any qualified beneficiary of such employee (as defined in Section
4980B(g)(1) of the Code) on or prior to the Closing Date.
Notwithstanding anything to the contrary contained herein, any
representation made in this Paragraph by Seller concerning Seller's
employees shall be limited to those persons employed at the Club.
11.1.13. Disclosure. Seller has disclosed and made available to
Purchaser all due diligence information and materials related to the
Club (i) provided to Seller by the seller of the Property to Seller,
(ii) discovered or obtained by Seller, and (iii) provided to Seller by
third parties, agents, or contractors of Seller.
ARTICLE 12.
SELLER'S COVENANTS
12.1. Seller covenants and agrees to the following, which
covenants and agreements shall survive Closing, shall have been fully
complied with as of the Closing Date, and shall not be deemed merged in
the conveyance contemplated herein:
12.1.1. Litigation, Claims, or Proceedings. In the event
a lien, claim, or cause of action affecting the Property or the
Club should arise prior to Closing, Seller shall advise Purchaser
in writing. If Seller elects to not satisfy any such claim prior
to Closing, and such claim has a material adverse effect on
Purchaser's ability to operate the Club after Closing, Purchaser
may, in its sole discretion, elect to terminate this Agreement and
both parties shall be released from all obligations hereunder and
the Xxxxxxx Money Deposit shall be immediately returned to
Purchaser by the Title Company.
12.1.2. Assessments. If any governmental agency or
authority gives notice prior or subsequent to Closing of any
improvements, liens, or special assessments made or to be made
against the Real Property, Improvements, or Tangible Personal
Property which relate to time periods prior to Closing, Seller
shall satisfy and indemnify Purchaser from any such claim and shall
furnish Purchaser evidence thereof.
12.1.3. Permits. Seller shall cooperate fully with Purchaser
as necessary to enable Purchaser, at Purchaser's cost, unless
otherwise specified herein, to procure and/or to transfer all
licenses, permits, or authorizations necessary for the operation of
the Real Property or the Improvements, including, if permitted by
law, transferring the existing liquor licenses from Seller to
Purchaser. Seller shall not let any existing license or permit
lapse without first notifying Purchaser in writing.
page 14
12.1.4. Taxes. All payroll taxes, sales taxes, license
taxes, liquor taxes, use taxes, and all other obligations arising
from and as a result of the operation of the Club and due or to
become due to any governmental or quasi-governmental authority,
whether municipal, state, county, or federal, accruing prior to
Closing shall be paid in full by Seller, and Seller shall not take
nor omit to take any action with respect to said taxes which would
prevent Purchaser's performance of its obligations hereunder or
impose upon Purchaser any material obligation not contemplated
herein.
12.1.5. Liens. From the date hereof and until Closing,
Seller shall not sell, assign, or create any right, title, or
interest whatsoever in or to any of the Property, or create or
permit to exist any liens, encumbrance, or charge thereon, other
than the Existing Real Property Conditions, Existing Personal
Property Conditions, and Permitted Exceptions, without promptly
discharging same.
12.1.6. Mechanic's Liens. Seller shall satisfy any and all
claims for mechanic's or materialmen's liens for work performed or
materials supplied prior to Closing; provided, however, Seller
shall have the right to contest any such claim so long as a bond is
posted by Seller and/or other procedures reasonably acceptable to
Purchaser are followed in order to protect the Real Property,
Improvements, and Tangible Personal Property and so long as no
exception therefor appears in the Title Policy.
12.1.7. Contracts. Seller agrees not to enter into any
contracts, commitments, leases, or agreements after the date hereof
to which the Club, Purchaser, or the Property may be or may become
subject without giving Purchaser notice of the terms of and third
party for such matters. Seller agrees not to enter into any
contracts, commitments, leases, or agreements after the expiration
of the Feasibility Period to which the Club, Purchaser, or the
Property may be or may become subject without the express written
approval of Purchaser. Notwithstanding anything herein to the
contrary, nothing herein shall be construed as prohibiting or
limiting Seller from entering into any (i)contract or agreement
which is performable and terminates by its own terms prior to
Closing, or (ii) any banquet, tournament, or other function
agreement if entered into in the ordinary course of business.
12.1.8. Business Practices. From the Effective Date until
the Closing Date, Seller shall cause the business of the Club and
the Real Property to be conducted in accordance with Seller's
stated operating plan and budget previously delivered to Purchaser,
and Seller shall diligently attempt to cause the Club to preserve
and maintain the goodwill of the Club, including relationships with
suppliers, members, and customers. In addition, Seller shall cause
the Club to maintain financial records and books of account
consistent with Seller's past practices and to maintain all
existing insurance on the Property.
page 15
12.1.9. Violation of Representations. From the Effective
Date and until Closing, Seller shall not take any action or omit to
take any action which action or omission would have the effect of
violating any of the representations, warranties, or covenants of
Seller contained in this Agreement. Seller shall also update
Seller's Representations and Warranties, as contained in
Article 11, as is necessary to make such representations and
warranties accurate.
12.1.10. Club Operation Restrictions. From the expiration of
the Feasibility Period and until Closing, Seller shall not, except
pursuant to existing agreements to which Seller is bound and copies
of which have been delivered to Purchaser, (i) increase the salary
of any employee of the Club, (or) (ii) hire any management level
employee for employment at the Club. Except for matters in the
ordinary course of the business of the Club, from the Effective
Date and until Closing, Seller shall not enter into any agreement
with the Club membership or modify the Club's membership bylaws or
rules and regulations (or their equivalents).
ARTICLE 13.
PURCHASER'S
COVENANTS, REPRESENTATIONS, AND WARRANTIES
13.1. Purchaser makes the following covenants, representations,
and warranties to Seller. Each covenant, representation, and warranty
shall survive the execution and delivery of this Agreement and shall be
true and correct in all material respects on the Closing Date, and no
covenant, representation, or warranty shall be deemed to be merged with
the conveyance herein contemplated:
13.1.1. Corporate Status. Purchaser is a corporation duly
organized, validly existing, and in good standing under the laws of
the State of Florida, with full corporate power to enter into this
Agreement and execute all documents required hereunder.
13.1.2. Authorization. The making, execution, delivery, and
performance of this Agreement by Purchaser has been duly
authorized and approved by the board of directors of Purchaser and
constitutes a valid and binding obligation, enforceable in
accordance with its terms.
13.1.3. Insurance. Purchase shall at all times maintain
general liability insurance naming Seller as an additional insured
for matters related to the Club.
page 16
ARTICLE 14.
LIABILITIES AND INDEMNIFICATIONS
14.1. Liabilities. It is expressly agreed and recognized that
Purchaser, in acquiring the Property, does not assume any responsibility
or liability whatsoever for any commitments, obligations, or debts made
or incurred by Seller, its predecessors, or the Club arising from the
ownership of the Property or the operation of the Club prior to Closing,
regardless of whether fixed, accrued, or contingent, except for
obligations arising under the Approved Contracts and the Permitted
Exceptions after Closing. It is further expressly agreed and recognized
that Seller, in disposing of the Property to be conveyed hereby, does
not assume any responsibility or liability whatsoever for any
commitments, obligations, or debts made or incurred by Purchaser, its
successors, or the Club arising from the ownership of the Property or
the operation of the Club subsequent to Closing, regardless of whether
fixed, accrued, or contingent.
14.2. Indemnification by Seller. Seller shall pay, defend, and
hold Purchaser and the Club harmless, except for obligations arising
under the Approved Contracts and Permitted Exceptions arising after
Closing, from and against all liability of any nature whatever,
regardless of the nature in which such liability may arise, from any and
all claims, actions, demands, expenses, attorneys' fees, damages,
losses, liabilities, suits, and/or judgments, costs, and expenses,
including those of any employee of Seller or the Club, or any customer,
member, invitee, or licensee of Seller or the Club, whether past or
present (collectively, "Damages"), arising from (i) possession,
ownership, or operation of the Property or the Club by Seller after
November 12, 1997, (ii) any third party relationship with Seller or the
Club prior to Closing, (iii) any misrepresentation, breach or warranty
and/or covenant, or nonfulfillment of any agreement on the part of
Seller under this Agreement, or (iv) any misrepresentation in or
omission in any Closing Document executed by Seller and delivered to
Purchaser; provided, however, the above indemnity shall expire upon the
expiration of one (1) year from Closing. Seller shall also pay, defend,
and hold harmless Purchaser and the Club from and against Damages, to
the extent such Damages are covered by any indemnity in favor of Seller
pursuant to Seller's purchase of the Property.
14.3. Indemnification by Purchaser. Except for the obligations
and liabilities retained by Seller pursuant to the terms and conditions
of this Agreement, Purchaser shall pay, defend, and hold Seller harmless
from and against all liability of any nature whatever, regardless of the
nature in which such liability may arise, for any and all claims,
actions, demands, expenses, reasonable attorneys' fees, damages, losses,
liabilities, suits, and/or judgments, costs, and expenses arising from
Purchaser's actions in connection with Purchaser's conducting the
Inspections on the Real Property; provided, however, the above indemnity
shall expire upon the expiration of one (1) year from the termination of
this Agreement or Closing.
page 17
ARTICLE 15.
PURCHASER'S OBLIGATIONS
15.1. Independent Corporation. Seller recognizes and acknowledges
that Purchaser is an independent corporation, chartered under the laws
of the State of Florida, to whom Seller will solely look and who is
solely responsible for the obligations and liabilities of Purchaser
recited herein, arising hereunder, or in any manner related to the
transactions contemplated hereby. Seller further recognizes and
acknowledges that no other entity or entities, including (i) Purchaser's
parent corporation, (ii) any individual, or (iii) any corporation
affiliated with Purchaser which may form, organize, provide services to,
provide loans and funds to, negotiate for, provide personnel to, make
representations on behalf of, and from time to time take actions on
behalf of or for the benefit of Purchaser, by direct dealings with
Seller or those acting for it, is in any manner liable or responsible
for the obligations and liabilities of Purchaser, whether recited
herein, arising hereunder, or in any manner related to the transactions
contemplated hereby.
15.2. Affiliate Companies. It is agreed and understood between
the parties hereto that the parent and affiliated corporations of
Purchaser will provide services for a fee to Purchaser and that the
providing of such services for a fee and the actions taken in providing
such services shall in no manner be construed to constitute the
undertaking by such parent or affiliated corporation of any obligation,
duty, or liability of Purchaser to Seller under the terms of this
Agreement or any other relationship existing between Purchaser and
Seller, unless specifically set forth in a document executed by the
party to be charged with such obligation, duty, or liability.
ARTICLE 16.
DEFAULT
16.1. Event of Default. Except as otherwise expressly
provided herein, either party hereto shall be deemed to be in default of
this Agreement if such party fails or refuses to comply with the terms
and conditions set forth herein for any reason other than the prior
termination of this Agreement pursuant to a right to so terminate
expressly set forth in this Agreement and said default continues for
a period of ten (10) days after written notice from the nondefaulting
party to the defaulting party specifying the default (an "Event
of Default").
ARTICLE 17.
REMEDIES
17.1. Seller's Remedies Prior to Closing. Upon the occurrence of
an Event of Default by Purchaser, Seller shall be entitled to terminate
this Agreement by giving Purchaser written notice of termination in
writing, and the parties hereto shall be released from all obligations
to each other hereunder, whereupon Seller shall have the right to
request the Title Company to convert the Xxxxxxx Money Deposit to cash
and to receive the Xxxxxxx Money Deposit from the Title Company. Seller
and Purchaser agree that Seller's actual damages, in the event of a
page 18
failure or refusal of Purchaser to comply with the terms and conditions
hereof, would be difficult to ascertain because of the uncertainties of
the real estate market and the fluctuations of property values between
the date of this Agreement and the date of an Event of Default, and
because of differences of opinion. Therefore, Seller agrees and
acknowledges receiving and taking the Xxxxxxx Money Deposit as Seller's
sole and total relief and exclusive remedy hereunder, and that the
Xxxxxxx Money Deposit is, as to both Seller and Purchaser, a reasonable
amount as liquidated damages and is not a penalty.
17.2. Seller's Remedies After Closing. Except as otherwise
provided in this Agreement, upon the occurrence of an Event of Default
by Purchaser after Closing which is not cured within the time permitted,
Seller's sole and exclusive remedy shall be limited to arbitration, as
set forth herein.
17.3. Purchaser's Remedies Prior to Closing. Upon the occurrence
of an Event of Default by Seller prior to Closing, Purchaser shall be
entitled to (i) terminate this Agreement by giving Seller notice of
termination in writing, whereupon the parties hereto shall be released
from all obligations to each other hereunder, and the Xxxxxxx Money
Deposit shall immediately be returned to Purchaser by the Title Company,
and Purchaser shall be entitled to liquidated damages in the amount of
ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00) (the "Liquidated
Damages"), or (ii) bring suit for specific performance. Seller and
Purchaser agree that Purchaser's actual damages, in the event of a
failure or refusal of Seller to comply with the terms and conditions
hereof, would be difficult to ascertain because of the uncertainties of
the real estate market and the fluctuations of property values between
the date of this Agreement and the date of an Event of Default, and
because of differences of opinion. Therefore, Purchaser agrees and
acknowledges receiving and taking the Liquidated Damages as Purchaser's
sole and total relief and exclusive remedy for damages hereunder, and
that the Liquidated Damages is, as to both Seller and Purchaser, a
reasonable amount as liquidated damages and is not a penalty.
17.4. Purchaser's Remedies After Closing. Except as otherwise
provided in this Agreement, upon the occurrence of an Event of Default
by Seller after Closing which is not cured within the time permitted,
Purchaser sole and exclusive remedy shall be limited to arbitration, as
set forth herein.
ARTICLE 18.
ARBITRATION
18.1. Arbitration. Any controversy arising out of, or relating
to, this Agreement, or the breach thereof, shall be settled by binding
arbitration administered by the American Arbitration Association in
accordance with its rules, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction. The
initiating party shall give written notice to the other party of its
intention to arbitrate, which notice shall contain a statement setting
forth the nature of the dispute, the amount involved, if any, the remedy
sought, and the hearing locale requested, and shall file at any regional
office of the American Arbitration Association three (3) copies of the
notice and three (3) copies of this arbitration provision, together with
the appropriate filing fee, as provided by the American Arbitration
Association. The arbitrator shall be selected by using the listing
process under the American Arbitration Association's arbitration rules.
The arbitrator shall award to the prevailing party, if any, as
determined by the arbitrator, all of its costs and expenses. "Costs and
page 19
expenses" shall mean all reasonable pre-award expenses of the
arbitration, including the arbitrator's fees, administrative fees,
travel expenses, out-of-pocket expenses, such as copying and telephone,
witness fees, and attorneys' fees. The consideration of the parties to
be bound by arbitration is not only the waiver of trial by jury, but
also the waiver of any rights to appeal the arbitration finding.
ARTICLE 19.
NOTICES
19.1. Notices. Any notices or other communications required
or permitted hereunder shall be sufficiently given if in writing and
(i) hand delivered, including delivery by courier service, (ii) sent by
facsimile, or (iii) sent by certified mail, return receipt requested,
postage prepaid, addressed as shown below, or to such other address as
the party concerned may substitute by written notice to the other. If
the notice is sent by facsimile, it must be properly addressed,
reflecting the facsimile phone number of the addressee(s), and must be
transmitted by a facsimile which produces a dated message completed
confirmation. All notices hand delivered shall be deemed received on
the date of delivery. All notices forwarded by mail shall be deemed
received on a date three (3) days (excluding Sundays and legal holidays
when the U.S. mail is not delivered) immediately following date of
deposit in the U.S. mail. Provided, however, the return receipt
indicating the date upon which all notices were received shall be prima
facie evidence that such notices were received on the date on the return
receipt. Notwithstanding the foregoing, any notice of termination given
by Purchaser by certified mail and facsimile and sent prior to the end
of the Feasibility Period shall be effective when mailed.
If to Seller: ORLANDO RESORT CORPORATION
Sunday Xxxxx Xxxx
X.X. Xxx 000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
American Skiing Company
Sunday Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
If to Purchaser: ELW GOLF GROUP, INC.
3702 Xxx xx xx Xxxxx, Xxxxx 000
Xxx Xxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
page 20
With a copy to:
ADDISON LAW FIRM,
a Professional Corporation
00000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
The addresses and addressees may be changed by giving notice of
such change in the manner provided herein for giving notice. Unless and
until such written notice is received, the last address and addressee
given shall be deemed to continue in effect for all purposes. No notice
to either Purchaser or Seller shall be deemed given or received unless
the entity noted "With a copy to" is simultaneously delivered notice in
the same manner as any notice given to either Seller or Purchaser, as
the case may be.
ARTICLE 20.
MISCELLANEOUS
20.1. Entire Agreement. This Agreement and the Exhibits embody
the entire agreement and understanding of Seller and Purchaser relating
to the subject matter hereof and supersedes all prior representations,
agreements, and understanding, oral or written, relating to such subject
matter.
20.2. Exhibits. All Exhibits attached hereto are incorporated
herein by this reference as if fully set forth herein; provided,
however, in the event that at the time of the execution of this
Agreement any of the Exhibits to be attached are incomplete, the parties
shall use their best efforts to complete such Exhibits at the earliest
possible date, but in any event such Exhibits shall be completed and
attached to this Agreement prior to the Closing Date. To the extent
this Agreement may be rendered unenforceable by the lack of completion
of any of the Exhibits, such defect shall be cured as such incomplete
Exhibits are made complete in accordance with this Section, except to
the extent that such Exhibits are deemed and stipulated by Purchaser and
Seller to be complete on the execution of this Agreement by the parties
hereto. If any Exhibits are subsequently changed by the mutual written
agreement of the parties, the Exhibits shall be modified to reflect such
change or changes and initialed by the parties.
20.3. Bulk Sales Act. Purchaser and Seller hereby jointly waive
any and all provisions of the Florida Bulk Sales Act that may be
applicable to the sale and purchase herein contemplated.
20.4. Assignment. Except as expressly provided herein, this
Agreement and any documents executed in connection therewith shall not
be assigned by Seller or Purchaser without the prior written consent of
the other party, and any assignment without such prior written consent
shall be null and void. Notwithstanding anything herein to the
contrary, Purchaser may assign this Agreement to a wholly owned
subsidiary of Purchaser and, upon such assignment, Purchaser shall have
no further rights or obligations hereunder and such subsidiary entity
shall be the "Purchaser" herein for all purposes.
page 21
20.5. Severability. Except as expressly provided to the contrary
herein, each section, part, term, or provision of this Agreement shall
be considered severable, and if for any reason any section, part, term,
or provision herein is determined to be invalid and contrary to or in
conflict with any existing or future law or regulation by a court or
governmental agency having valid jurisdiction, such determination shall
not impair the operation of or have any other affect on other sections,
parts, terms, or provisions of this Agreement as may remain otherwise
intelligible, and the latter shall continue to be given full force and
effect and bind the parties hereto, and said invalid sections, parts,
terms, or provisions shall not be deemed to be a part of this Agreement.
20.6. Confidentiality. Except as required by any applicable
securities or other law or as needed in order to consummate the
transaction contemplated herein to each respective party's agents,
employees, or contractors, both parties covenant and agree that unless
the transaction contemplated by this Agreement actually closes and
Purchaser receives the Deed at Closing, neither party will disclose to
any person or entity any information received or discovered concerning
this Agreement or the intentions of either party hereunder. If either
party discloses any such information, such disclosure shall constitute
an Event of Default, whereupon the other party shall be entitled to
exercise the remedies available to it under this Agreement as well as
any other remedies available to it at law or in equity for the violation
of this Section, without any prior notice whatsoever; both parties
hereby waive notice for purposes of this Section. The provisions of
this Section shall survive Closing.
20.7. Approvals. Any consent or approval referred to herein (by
whatever words used) of either party shall not be unreasonably withheld
or delayed, and neither party shall seek or obtain any payment in
connection therewith as a condition therefor. Except as otherwise
expressly provided herein, whenever either party has called upon the
other to execute and deliver a consent or approval in accordance with
the terms of this Agreement, the failure of such party to respond to the
demand within fifteen (15) days after written request therefor is given
in accordance with the terms of Section 19.1, or such other period as
specifically set forth herein, shall be deemed to be a consent or
approval. In the event that either party refuses to give its consent or
approval to any request by the other, such refusing party shall indicate
by written notice to the other the reason for such refusal.
20.8. Construction and Interpretation of Agreement. This
Agreement is to be performed in the State of Florida and shall be
governed by and construed in accordance with the laws of the State of
Florida. Any action brought to enforce or interpret this Agreement
shall be brought in the court of appropriate jurisdiction in the county
in which the Real Property is located. Should any provision of this
Agreement require judicial interpretation, it is agreed that the court
interpreting or considering same shall not apply the presumption that
the terms hereof shall be more strictly construed against a party by
reason of the rule or conclusion that a document should be construed
more strictly against the party who itself or through its agent prepared
the same. It is agreed and stipulated that all parties hereto have
participated equally in the preparation of this Agreement and that legal
counsel was consulted by each party before the execution of this
Agreement.
20.9. Amendment and Waiver. This Agreement may not be amended or
modified in any way except by an instrument in writing executed by all
parties hereto; provided, however, either Seller or Purchaser may, in
page 22
writing, (i) extend the time for performance of any of the obligations
of the other, (ii) waive any inaccuracies and representations by the
other contained in this Agreement, (iii) waive compliance by the other
with any of the covenants contained in this Agreement, and (iv) waive
the satisfaction of any condition that is precedent or subsequent to the
performance by the party so waiving of any of its obligations under this
Agreement.
20.10. No Partnership or Joint Venture. Nothing contained herein
shall be deemed or construed by the parties hereto or by any third party
as creating the relationship of (i) principal and agent, (ii) a
partnership, or (iii) a joint venture between the parties hereto; it
being understood and agreed that neither any provisions contained herein
nor any acts of the parties hereto shall be deemed to create any
relationship between the parties hereto other than the relationship of
seller and purchaser.
20.11. Access and Information. Seller shall permit Purchaser and
Purchaser's representatives, employees, agents, or independent
contractors of Purchaser access to the Property and all books, records,
and documents pertaining to the Property, the Club, and the Club's
operations at all times during normal business hours from the date
hereof to the Closing Date. Seller shall cooperate to the fullest
extent in securing and providing to Purchaser all information which may
be in the possession of others concerning the Property, the Club, and
the Club's operations.
20.12. Counterparts. This Agreement may be executed in any number
of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
20.13. Successors and Assigns. This Agreement and the terms and
provisions hereof shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns whenever the
context so requires or permits.
20.14. Time. Time is of the essence in this Agreement and each
and all of its provisions. Any extension of time granted for the
performance of any duty under this Agreement shall not be considered an
extension of time for the performance of any other obligation under this
Agreement.
20.15. Documentation. If necessary to carry out the intent of
this Agreement, Purchaser and Seller agree to execute and provide to the
other party on or after Closing any and all other instruments,
documents, conveyances, assignments, and agreements which such other
party may reasonably require.
20.16. Brokers. Seller shall indemnify and hold harmless
Purchaser against and from all loss, cost, damage, or expense, including
attorneys' fees, incurred by Purchaser in any action based upon a claim
by a broker that Seller has employed or otherwise engaged such broker in
connection with the transaction contemplated by this Agreement; and
Purchaser shall indemnify and hold harmless Seller against and from all
loss, cost, damage, or expense, including attorneys' fees, incurred by
Seller in any action based upon the claim of a broker that Purchaser has
employed or otherwise engaged such broker in connection with the
transaction contemplated by this Agreement. The term "broker" as used
herein shall include any party who claims a commission because of the
sale of the Property contemplated hereby.
page 23
20.17. Captions. Captions, titles to sections, and paragraph
headings used herein are for convenience of reference and shall not be
deemed to limit or alter any provision hereof.
20.18. Governing Document. This Agreement shall govern in the
event of any inconsistency between this Agreement and any of the
Exhibits attached hereto or any other document or instrument executed or
delivered pursuant hereto or in connection herewith.
20.19. Food and Beverage Management Agreement. At Purchaser's
request, Seller shall cause the license holder of the Club, at Closing,
to enter into a management agreement with Purchaser, in a form mutually
acceptable to Seller and Purchaser, covering such portion of the food
and beverage operation of the Club and for such duration as may be
reasonably required to allow for continued alcohol, food and beverage
service at the Club, or transfer of or reissuance of any necessary
alcohol, liquor, or other license or permit.
20.20. Attorneys' Fees. In the event either party hereto should
default under any of the provisions of this Agreement and the parties
should employ attorneys or incur other expenses for the enforcement of
performance or observance of any obligation or assessment on the part of
the defaulting party or the defense of said allegations, the prevailing
party shall be entitled to recover reasonable attorneys' fees and
expenses incurred.
[Signatures are on following page.]
page 24
IN WITNESS WHEREOF, the parties have executed this instrument on
the date first written above.
Seller:
ORLANDO RESORT CORPORATION,
Attest: a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------- -----------------------------
Title: Title: Vice President
Date: 12/5/97
Purchaser:
ELW GOLF GROUP, INC.,
Attest: a Florida corporation
By: /s/ Xxxxxx Xxxxxxx
----------------------- -----------------------------
Title: Title: Vice President
Date: 12/3/97
The undersigned acknowledges receipt of this Agreement and agrees
to comply with all obligations of the Title Company described herein
with respect to the Xxxxxxx Money Deposit.
Title Company:
--------------------------------
By:
-----------------------------
Title:
Date:
page 25
