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10-E Use and Access Agreement between
Owners, Registrant, Wilderness
Resort & Hotel, Inc., Wild Golf,
Inc. and Xxx and Xxxxx Xxxxx
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ACCESS/USE AGREEMENT
THIS ACCESS/USE AGREEMENT, made this ___ day of ____________, 1997
between and among WILDERNESS HOTEL & RESORT, INC., a Wisconsin corporation
("WH&RI"), WILD GOLF, INC., a Wisconsin corporation ("Wild Golf"), XXXXXX X.
XXXXX AND XXXXX X. XXXXX of Wisconsin Dells, Wisconsin ("Xxxxxx") (WH&RI, WILD
GOLF and XXXXXX, herein collectively referred to as "Grantors") and the
WILDERNESS HOTEL CONDOMINIUM ASSOCIATION, INC., a Wisconsin non-stock
corporation ("Association") on behalf of all Association members who are hotel
condominium unit owners ("Owners") in the Wilderness Hotel Condominium, a hotel
condominium ("Condominium").
RECITALS
WHEREAS, WH&RI is the owner and operator of the Wilderness Hotel &
Resort located on a parcel of land at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx Dells,
Sauk County, Wisconsin ("Wilderness Hotel & Resort"); and
WHEREAS, the Xxxxxx are owners of the land upon which the Wilderness
Hotel & Resort is located and have, as Lessors, entered into a long-term land
lease of the Wilderness Hotel & Resort land with WH&RI, as Lessee; and
WHEREAS, Wild Golf is the owner and operator of the golf course which
is adjacent to and operated in conjunction with the Wilderness Hotel & Resort;
and
WHEREAS, the Association, on behalf of present and future Owners of the
Condominium, by virtue of an Owner's purchase of a hotel Condominium unit (the
"Unit") desires to secure for the Owners certain access and use rights to the
Wilderness Hotel & Resort and its amenities and the Grantors are willing to
extend certain access and use rights.
NOW, THEREFORE, in consideration of the mutual covenants herein, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. Wilderness Hotel & Resort Access Grant. Subject to the terms and
conditions as set forth in this Agreement, Grantors hereby grant to Owners
access to and use of the recreational and other facilities in the Wilderness
Hotel & Resort, including the Wilderness Hotel & Resort's indoor/outdoor
swimming pools, water games, slides, lobbies, snack bars, gift shop, lockerrooms
and public restrooms (the "Facilities") on the same basis and at the same cost
(if any) that the Facilities are utilized by paying patrons of the Wilderness
Hotel & Resort. This access and use of the Facilities are intended for the
benefit of the Owners and the transient hotel rental tenants (the "Occupants")
and guests of an Owner's Unit (the "Guests"), subject to rules and regulations
regarding the Facilities.
2. Golf Benefits. Wild Golf hereby grants to Owners the right to
purchase green fees at the Wilderness Golf Course (the
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"Golf Facility") at 50% of the green fee rate applicable at time of play (the
"Golf Benefits"). This benefit shall apply only to a maximum of two Owners of
Units of record in the Condominium as shown on the books of the Association.
Notwithstanding anything contained in this Agreement to the contrary, the
benefit related to the Golf Facility shall not be available to any guest of the
Owner and/or any person renting the Unit.
3. Conditions Precedent. Conditions precedent to the access, use,
benefits and rights as granted in paragraphs 1 and 2 above ("Privileges") shall
be:
a. Ownership. A person must be an Owner of a Unit in the Condominium
and a member of the Association, as provided in paragraph 1 above, an
Occupant of Owner's Unit or a Guest of Owner in the Unit. The Occupants
and Guests of a Unit shall not, however, be entitled to the Golf Benefits
as described in Paragraph 2 above.
b. Good Standing. The Owner must be in good standing with the
Association and not in default of any Association dues, assessments, or in
default of any of the terms, conditions or provisions as provided in the
Association's Articles of Incorporation, By-Laws, Rules and Regulations
and/or the Condominium Declaration.
c. Management and Use Agreement and Rental Pooling and Agency
Agreements. The Management and Use Agreement and the Rental Pooling and
Agency Agreement (as described herein), or any extension, renewal or
amendment thereto, between the Owners and/or the Association and
Wilderness Development Corporation and Wilderness Hotel & Resort, Inc.,
respectively, (or its successors and/or assigns) originally dated the ___
day of _______________, 1997, in respect to the Management and Use
Agreement and at various dates, in respect to the Rental Pooling and
Agency Agreement, must be in full force and effect, unless cancellation
thereof was solely attributable to Wilderness Hotel & Resort, Inc. and/or
Wilderness Development Corporation or their successors' and/or assigns'
election and option.
4. Term. The term of this Agreement shall commence as of the day first
written above and shall continue for an initial twenty (20) year term.
Thereafter, this Agreement shall automatically renew for like twenty (20) year
terms, unless otherwise terminated as provided herein.
5. Termination. This Agreement shall terminate as to the Association
and all Owners, or to individual Owners, as the case may be, upon thirty (30)
days written notice to the Owner or Owners that any of the conditions precedent
as provided in paragraph 3 above exist, and the failure on the part of an Owner
or Owners to cure the condition precedent within said thirty (30) day notice
period. Upon the initial approval of this Agreement by the Association, after
the initial election of the Association officers
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by the Unit Owners (other than Grantors or Wilderness Development Corporation),
termination of this Agreement by the Association may be effectuated by the
Association, providing Grantors (their successors and/or assigns) give at least
ninety (90) days written notice of the Association's intent to terminate this
Agreement.
6. Use Fee. The Owners, by and through the Association, shall pay to
the Grantors, their successors and/or assigns, a fee assessed and payable on a
monthly basis which shall be in an amount reasonably related to each Unit's
prorated share of the cost of operating, maintaining, repairing and funding
replacement reserves for the Facilities and the Golf Facilities.
7. Damage or Destruction. If, during the term of this Agreement, fire
or other casualty shall so damage or destroy any element of the Wilderness Hotel
& Resort that it is untenantable, or unfit for use, the rights granted hereunder
shall be suspended until such time as Grantors elect to and complete actions
necessary to make the Wilderness Hotel & Resort tenantable and fit for use. This
Agreement shall impose no duty upon the Grantors to restore the Wilderness Hotel
& Resort to its pre-destruction condition. This Agreement shall terminate as to
any Facilities not rebuilt because of fire, casualty, damage or destruction to
the Wilderness Hotel & Resort or any portion thereof.
8. Management and Control. Grantors shall retain full management and
control of the Wilderness Hotel & Resort and the Facilities and Golf Facility,
and this Agreement shall impose no further duty upon Grantors in addition to the
duties owned by Grantors to its Occupants and Guests.
9. Compliance With Applicable Laws and Rules. Owners shall comply with
all laws, orders and regulations of federal, state and municipal authorities,
and with any lawful direction of any public officer, and shall follow such rules
and regulations as set forth by the Grantors and any direction of Grantors'
employees or agents with respect to the Owners' activities at the Wilderness
Hotel & Resort and its Facilities and Golf Facilities.
10. Assignment. This Agreement may be assigned by Grantors to any of
their successors in interest. Any such assignment shall relieve Grantors from
any and all liabilities and duties hereunder and the same shall be assumed by
Grantors' successors and/or assigns.
11. Arbitration. Except as expressly provided herein, any controversy
between the parties arising out of or relating to this Agreement or the breach
hereof shall be settled by arbitration. Either party may notify the other that
it intends to ask for arbitration at any time. If the parties cannot resolve
their disagreement within twenty (20) days of such notification or cannot
mutually agree on a third party to arbitrate their dispute, either party may
request the Chief Judge of the Sauk County Circuit Court, or if there is none,
the Judge of Branch 1, to designate such arbitrator. Any such arbitration shall
be conducted in
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accordance with the procedure set forth in Chapter 788 of the Wisconsin Statutes
or any successor thereto. The parties shall divide equally the fees and expenses
of the arbitrator. The arbitrator shall have the power to award the victorious
party part or all of its costs, including reasonable attorneys fees, if the
arbitrator believes the other party was acting in bad faith in failing to reach
agreement prior to or during arbitration.
12. Entire Agreement. This Agreement shall constitute the entire
agreement between the contracting parties, and no alleged prior agreements,
either oral or in writing, shall be valid and enforceable.
13. Captions. The captions in this Agreement are for the convenience of
the parties only, and shall not be used to construe the meaning of any
provision.
14. Enforceability. If any provision of this Agreement or any specific
application shall be invalid or unenforceable, the remainder of this Agreement,
or the application of the provisions in other circumstances, shall not be
affected, and each provision shall be valid and enforceable to the fullest
extend permitted by law.
15. Notices. Any notice required to be given to Association or Manager
shall be sent or personally delivered to the following addresses respectively:
To Grantors:
Wilderness Hotel & Resort, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Wild Golf, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
With a copy to:
Attorney Xxxxxxx X. Xxxxxxx and
Attorney Xxxxxxx X. Xxxxxxx
Xxxxxxx & Xxxxxxx, S.C.
000 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
To Association:
Wilderness Hotel Condominium Association, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
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To Owners:
Last address as shown on the books of the Association.
All parties shall notify the others of a change of address.
16. Successors and Assigns. This Agreement shall inure to the benefit
of and bind the parties, and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
GRANTORS:
WILDERNESS HOTEL & RESORT, INC.
BY:______________________________________
Xxxxxx X. Xxxxx, President
-NO CORPORATE SEAL-
ATTEST:___________________________________
S. Xxxxx Xxxxxxx, Xx., Secretary
WILD GOLF, INC.
BY:______________________________________
Xxxxxx X. Xxxxx, President
-NO CORPORATE SEAL-
ATTEST:___________________________________
S. Xxxxx Xxxxxxx, Xx., Secretary
__________________________________________
Xxxxxx X. Xxxxx
__________________________________________
Xxxxx X. Xxxxx
ASSOCIATION:
WILDERNESS HOTEL CONDOMINIUM ASSOCIATION, INC.
BY:______________________________________
Xxxxxx X. Xxxxx, President
-NO CORPORATE SEAL-
ATTEST:___________________________________
S. Xxxxx Xxxxxxx, Xx., Secretary
OWNERS:
__________________________________
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