EXHIBIT 10.14
PARCEL ONE PROPERTY SALE AGREEMENT
THIS AGREEMENT is made this 4th day of June, 1996 (the "Effective Date"),
by and between SJH PARTNERSHIP, LTD., a Florida limited partnership ("SJH
Partnership") and VISTANA WGV, LTD., a Florida limited partnership ("Buyer").
In consideration of the mutual undertakings of the parties set forth in
this Agreement and of other valuable considerations, the receipt and sufficiency
of which the parties acknowledge, the parties hereby agree as follows:
PREAMBLE
WHEREAS, Dunavant Enterprises, Inc. ("Dunavant") is the fee simple owner of
approximately 3900 acres of property located in northwest St. Johns County,
Florida, referenced as the Six Mile Creek Parcel in that certain Development of
Regional Impact Order approved by St. Johns County Resolution No. 91-130, as the
same may be modified from time to time (the "Saint Johns DRI") (herein referred
to as the "River Tract"); and
WHEREAS, SJH Partnership is the fee simple owner of three (3) parcels of
land of approximately 2000 acres in total, referenced as the "Interchange
Northeast Parcel," "Interchange Southeast Parcel" and "Interchange Northwest
Parcel" in the Saint Johns DRI (herein collectively referred to as the
"Interchange Tract"). The Interchange Tract and the River Tract are hereinafter
collectively referred to as the "Saint Johns Property." The legal description
of the Interchange Northwest Parcel is attached hereto as an Exhibit; and
WHEREAS, the Interchange Tract is contiguous to an Interchange located at
the intersection of Interstate 95 and International Golf Parkway, a publicly
dedicated right-of-way (the "Interchange") and contains approximately 3.2 miles
of frontage on Interstate 95; and
WHEREAS, the River Tract is located approximately 1.5 miles west of the
Interchange; and
WHEREAS, Buyer desires to enter into a purchase agreement with SJH
Partnership for the acquisition of a portion of the Interchange Northwest Parcel
for the purpose of constructing up to 440 resort condominium and/or vacation
ownership units, including ancillary facilities and amenities (collectively, the
"Villas"), which Villas are to be constructed upon two parcels of land (the
"Land") as generally shown on the Site Plan attached hereto as an Exhibit,
together with an Access Easement, as hereinafter defined (which Land and Access
Easement to be herein conveyed are collectively referred to as "Parcel One").
The legal descriptions of the Land and Access Easement are attached hereto as
Exhibits; and
WHEREAS, SJH Partnership has entered into a conveyance agreement with
Scratch Golf Company ("Scratch") for the acquisition of a portion of the
Interchange Northwest Parcel (the "World Golf Village Golf Course Parcel") for
the purpose of construction of an 18 hole golf course (the "World Golf Village
Golf Course") and related improvements (the "World Golf Village Golf Course
Conveyance Agreement"); and
WHEREAS, SJH Partnership intends to enter into an agreement with UCC Realty
Corporation ("UCC") providing for the sale of lands in proximity to Parcel One
("Parcel Two") for the development of retail improvements which may include up
to 90 condominium units (the "Parcel Two Sale Agreement"); and
WHEREAS, John Q. Hammons Hotels - St. Johns L.P. ("JQH-LP") has entered
into a purchase agreement with SJH Partnership dated as of November 22, 1994, as
amended to the date hereof, for the acquisition of a portion of the Interchange
Northwest Parcel for the purpose of construction of a hotel containing up to 400
rooms (the "Hotel") and approximately 80,000 square feet of conference center
facilities (the "Conference Center") on approximately 10
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acres within the Interchange Northwest Parcel (the "Hotel Parcel"), which
Conference Center facilities may be developed in concert with St. Johns County,
Florida (the "County") (the "Hotel Agreement for Purchase and Sale"); and
WHEREAS, World Golf Village, Inc. ("WGV") is a not-for-profit corporation
dedicated to educating the public concerning amateur and professional golf and
is supported by PGA Tour, Inc. ("Tour"), the Professional Golfers Association of
America ("PGA"), the United States Golf Association, the Royal & Ancient Golf
Club of St. Andrews, the National Golf Foundation, the Ladies Professional Golf
Association ("LPGA") and various other organizations within amateur and
professional golf; and
WHEREAS, SJH Partnership intends to convey a portion of the Interchange
Northwest Tract (the "Hall of Fame Parcel") to the County and WGV to construct
an International Golf Museum housing the PGA Tour Hall of Fame, the LPGA Hall of
Fame, the PGA World Golf Hall of Fame; an IMAX or IWERKS Theater or other
similar entertainment facility; the PGA Tour Golf Academy and additional
facilities including a headquarters and production facility for PGA Tour
Productions; and related structures and other ancillary improvements; and such
other amenities as described in the conveyance agreement to be entered into
between SJH Partnership and WGV (the "Hall of Fame Conveyance Agreement"); and
WHEREAS, WGV, SJH Partnership, Buyer and JQH-LP intend that the facilities
constructed by them on portions of the Interchange Northwest Tract shall be
operated and promoted as the "World Golf Village" pursuant to certain license,
access and operating agreements to be entered into between each of the parties
thereto as to their respective properties and WGV as the owner of the trademarks
and logos of the "World Golf Village" to be more particularly described in that
certain Master Development Agreement
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to be executed by WGV, SJH Partnership, JQH-LP, Scratch, UCC and Buyer (the "WGV
Master Development Agreement"); and
WHEREAS, Dunavant has entered into an agreement to ultimately convey
portions of the River Tract to Scratch for construction of a second 18 hole golf
course (the "River Tract Golf Course") upon terms and conditions set forth in
the conveyance agreement to be entered into between Dunavant and Scratch (the
"River Tract Golf Course Conveyance Agreement") such that the second 18 hole
golf course shall also be operated and promoted as part of the "World Golf
Village" pursuant to certain license, access and operating agreements to be
entered into between Buyer, WGV, Dunavant, Scratch and JQH-LP which are to be
reflected in a master development agreement (the "River Tract Master Development
Agreement"); and
WHEREAS, SJH Partnership desires to enter into the following agreement with
Buyer, in consideration for the ongoing commitments and obligations of Buyer as
set forth in this Agreement; and
WHEREAS, Buyer, in order to provide for the acquisition of Parcel One for
construction of the Villas as part of the World Golf Village, desires to enter
into the following agreement with SJH Partnership.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00), in hand paid by Buyer to SJH Partnership, the mutual undertakings of
the parties set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in further consideration of the mutual covenants, promises and undertakings
contained herein, SJH Partnership and Buyer hereby agree and covenant as
follows:
1. DEFINITIONS.
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1.1 When used in this Agreement, the following terms shall have the
following meanings:
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1.1.1 Access Easement shall have the meaning set forth in
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Section 2.10 hereof.
1.1.2 Access Road shall mean and refer to that certain main
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arterial access entry road providing access to the Road Connection Point from
International Golf Parkway as more particularly described in the Site Plan.
1.1.3 Assignment of Development Rights shall mean and refer
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to that certain assignment from SJH Partnership in favor of Buyer described in
Section 12.2.
1.1.4 Association(s) shall have the meaning set forth in
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Section 12.9 hereof.
1.1.5 Association Covenants shall have the meaning set forth
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in Section 12.9 hereof.
1.1.6 Bond Resolution shall mean Resolution 95-117 of St.
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Johns County approved by the St. Johns County Commission authorizing issuance of
the Series 1996 Bonds to finance construction of the Conference Center, as
amended through the date of this Agreement.
1.1.7 Buyer Completion Assurances shall have the meaning set
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forth in Section 10.9 hereof.
1.1.8 Closing or Closing Date shall have the meaning set
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forth in Section 2.9 hereof.
1.1.9 Commencement Date shall have the meaning set forth in
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Section 11.2 hereof.
1.1.10 Commitment shall have the meaning set forth in Section
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2.6 hereof.
1.1.11 Completion Date shall have the meaning set forth in
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Section 11.2 hereof.
1.1.12 Conference Center Bonds shall have the meaning set
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forth in Section 1.1.37 hereof.
1.1.13 Construction Reimbursement Agreement shall mean that
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certain Construction Reimbursement Agreement to be
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entered into between Buyer, WGV and others allocating certain construction
reimbursements to be paid to WGV for certain WGV Easement improvements.
1.1.14 County shall have the meaning assigned to such term in
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the "WHEREAS" clauses.
1.1.15 Deposit shall have the meaning set forth in Section 2.3
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hereof.
1.1.16 Development Criteria shall have the meaning set forth
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in Section 5.2 hereof.
1.1.17 Dunavant shall have the meaning assigned to such term
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in the "WHEREAS" clauses.
1.1.18 Effective Date shall have the meaning set forth in the
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introductory paragraph.
1.1.19 Escrow Agent shall have the meaning set forth in
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Section 2.3 hereof.
1.1.20 Final Development Plan shall have the meaning set forth
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in Section 6.3 hereof.
1.1.21 Force Majeure as used herein shall mean acts of God,
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earthquakes, blizzards, tornados, hurricanes, fire, flood, malicious mischief,
insurrection, riots, strikes, lockouts, boycotts, picketing, labor disturbances,
public enemy, war (declared or undeclared), landslides, explosions, epidemics,
compliance with any order, ruling, injunction or decree by any court, tribunal
or judicial authority of competent jurisdiction, inability to obtain materials
or supplies after the exercise of all reasonable efforts, substantial
interference in construction activities resulting directly from Hazardous Waste
remediation activities or directly from construction activities or delays as to
construction activities conducted simultaneously on adjacent lands by or under
the direction of unrelated parties, inability to obtain water and sewer service
from St. Johns County and any other similar circumstances beyond the reasonable
control of the party
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responsible for such performance. The party affected by such Force Majeure
event must give notice specifying the Force Majeure event, in writing, to the
other parties within forty-eight (48) hours after actual knowledge of its
occurrence. The obligation to perform of the party giving notice of the Force
Majeure event shall be suspended during the continuance of any inability to
perform caused by the occurrence of the Force Majeure event.
1.1.22 Guaranty Fee Note shall have the meaning set forth in
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Section 2.1.2 hereof.
1.1.23 Hall of Fame Conveyance Agreement shall have the
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meaning assigned to such term in the "WHEREAS" clauses.
1.1.24 Hall of Fame Parcel shall have the meaning assigned to
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such term in the "WHEREAS" clauses.
1.1.25 Hazardous Wastes shall be as variously defined under
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the Resource Conservation and Recovery Act of 1976, as amended in 1984; (42
U.S.C. Sec. 6901 et seq.); the Comprehensive Environmental Response Compensation
and Liability Act of 1980, as amended in 1986; (42 U.S.C. Sec. 9601 et seq.);
the Federal Toxic Substances Control Act; (15 U.S.C. Sec. 2601 et seq.); the
Clean Air Act; (42 U.S.C. Sec. 7401 et seq.); the Pollutant Spill Prevention and
Control Act; (F.S. Chapter 376 et seq.); and the Florida Air and Water Pollution
Control Act; (F.S. Chapter 403 et seq.); together with all rules, regulations,
orders and the like, applicable to the same.
1.1.26 Hotel shall have the meaning assigned to such term in
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the "WHEREAS" clauses.
1.1.27 Hotel Agreement for Purchase and Sale shall have the
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meaning assigned to such term in the "WHEREAS" clauses.
1.1.28 Hotel Parcel shall have the meaning assigned to such
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term in the "WHEREAS" clauses.
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1.1.29 Infrastructure Improvements shall have the meaning set
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forth in Section 11.4 hereof.
1.1.30 Interchange Northwest Parcel shall have the meaning
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assigned to such term in the "WHEREAS" clauses.
1.1.31 JQH-LP shall have the meaning assigned to such term in
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the "WHEREAS" clauses.
1.1.32 Known Exceptions shall have the meaning set forth in
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Section 2.5 hereof.
1.1.33 Land shall have the meaning assigned to such term in
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the "WHEREAS" clauses.
1.1.34 License Agreement shall mean and refer to that certain
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agreement to be entered into between Buyer and SJH Partnership attached hereto
as an Exhibit.
1.1.35 Master Development Agreements shall mean collectively
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the River Tract and WGV Master Development Agreements.
1.1.36 Memorandum of Agreement shall mean and refer to that
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certain agreement to be entered into between SJH Partnership and Buyer attached
hereto as an Exhibit.
1.1.37 Memorandum of Understanding shall mean and refer to
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that certain Memorandum of Understanding dated as of February 14, 1995, entered
into between JQH-LP and the County, as approved by Resolution No. 95-28
providing for issuance by St. Johns County of Bonds to construct the Conference
Center (the "Conference Center Bonds").
1.1.38 Mortgagee shall have the meaning set forth in Section
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2.6 hereof.
1.1.39 Other Conveyance Agreements shall have the meaning set
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forth in Section 9.3 hereof.
1.1.40 Parcel One shall have the meaning assigned to such term
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in the "WHEREAS" clauses.
1.1.41 Parcel Two Sale Agreement shall have the meaning
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assigned to such term in the "WHEREAS" clauses.
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1.1.42 Permitted Exceptions shall have the meaning set forth
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in Section 2.8 hereof.
1.1.43 Phase I Audit shall have the meaning set forth in
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Section 6.6 hereof.
1.1.44 Phase I Improvements shall have the meaning set forth
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in Section 11.2 hereof.
1.1.45 Phase I Units shall have the meaning set forth in
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Section 11.2.1 hereof.
1.1.46 Plans and Specifications shall have the meaning set
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forth in Section 11.1 hereof.
1.1.47 Preliminary Plans shall have the meaning set forth in
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Section 6.1 hereof.
1.1.48 Purchase Price shall have the meaning set forth in
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Section 2.1 hereof.
1.1.49 Right of First Refusal shall have the meaning set forth
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in Section 13 hereof.
1.1.50 River Tract shall have the meaning assigned to such
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term in the "WHEREAS" clauses.
1.1.51 River Tract Golf Course Conveyance Agreement shall have
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the meaning assigned to such term in the "WHEREAS" clauses.
1.1.52 River Tract Golf Facility Use Agreement shall mean that
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certain agreement to be entered into between Buyer, Dunavant, WGV, JQH-LP,
Scratch and UCC providing for access to the River Tract Golf Course.
1.1.53 River Tract Master Development Agreement shall have the
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meaning assigned to such term in the "WHEREAS" clauses.
1.1.54 Road Connection Point shall have the meaning set forth
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in Section 11.4 hereof.
1.1.55 SJH Completion Assurances shall have the meaning set
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forth in Section 9.7 hereof.
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1.1.56 SJH Partnership shall have the meaning assigned to such
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term in the introductory paragraph.
1.1.57 Saint Johns DRI shall have the meaning assigned to such
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term in the "WHEREAS" clauses.
1.1.58 Saint Johns PUD shall mean and refer to that certain
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Planned Unit Development Ordinance 91-36 pertaining to the Interchange Tract as
adopted by the St. Johns County Commission, as the same may be modified from
time to time.
1.1.59 Site Plan shall mean the Site Plan attached hereto as
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an Exhibit.
1.1.60 Special Assessment Agreement shall mean and refer to
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that certain Special Assessment Agreement providing for sources of repayment of
the Conference Center Bonds as contemplated under the Bond Resolution.
1.1.61 Special Warranty Deed shall have the meaning set forth
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in Section 2.10.1 hereof.
1.1.62 Surface Water Permits shall mean Army Corps of
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Engineers Permit No. 199100108 (IPGS) and St. Johns River Water Management
District Permits, No. 4-109-01206, No. 4-109-0122 and No. 12-109-0036, as the
same may be modified from time to time.
1.1.63 Survey shall have the meaning set forth in Section 2.7
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hereof.
1.1.64 Title Company shall have the meaning set forth in
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Section 2.6 hereof.
1.1.65 Title Policies shall have the meaning set forth in
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Section 2.6 hereof.
1.1.66 UCC shall have the meaning assigned to such term in the
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"WHEREAS" clauses.
1.1.67 Villa License Agreement shall mean and refer to the
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certain agreement to be entered into between Buyer and WGV as described in
Section 10.6.
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1.1.68 Villas shall have the meaning assigned to such term in
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the "WHEREAS" clauses.
1.1.69 Voluntary Payment Declaration shall mean and refer to
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that certain Declaration of Voluntary Payment Obligations providing for sources
of repayment of the Conference Center Bonds as contemplated in the Bond
Resolution.
1.1.70 WGV shall have the meaning assigned to such term in the
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"WHEREAS" clauses.
1.1.71 WGV Easement shall have the meaning set forth in
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Section 9.5 hereof.
1.1.72 WGV Easement Agreement shall have the meaning set forth
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in Section 9.5 hereof.
1.1.73 WGV Golf Facility Use Agreement shall mean and refer to
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that certain agreement to be entered into between SJH Partnership, Scratch,
Buyer, WGV and UCC providing for access to the World Golf Village Golf Course.
1.1.74 WGV Master Development Agreement shall have the meaning
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assigned to such term in the "WHEREAS" clauses.
1.1.75 World Golf Village shall have the meaning assigned to
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such term in the "WHEREAS" clauses.
1.1.76 World Golf Village Golf Course Conveyance Agreement
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shall have the meaning assigned to such term in the "WHEREAS" clauses.
2. SALE AND CONVEYANCE.
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2.1 Purchase Price and other Financial Obligations of Buyer.
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2.1.1 Under the terms of this Agreement, SJH Partnership
hereby agrees to sell and convey to Buyer and Buyer agrees to purchase Parcel
One from SJH Partnership for a purchase price of One Million Six Hundred Twenty-
Five Thousand Dollars ($1,625,000.00) (the "Purchase Price") to be paid as set
forth in
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Section 2.2 below. In conjunction with and as part of the purchase and sale of
Parcel One, SJH Partnership shall also convey to Buyer certain development
rights, easements and a license as more specifically provided for in this
Agreement.
2.1.2 In consideration of the agreement of SJH Partnership
and WGV to assume an increased share of Assessment Allocation under the terms of
the Special Assessment Agreement, Buyer has agreed to pay to SJH Partnership and
WGV a guaranty fee equal to (i) Fifty Dollars ($50.00) for each Villa vacation
unit week, (ii) Twenty-five Dollars ($25.00) for each biennial Villa vacation
unit week and (iii) Two Thousand Five Hundred Dollars ($2,500.00) for each whole
ownership unit, due in each case upon the closing of the conveyance thereof by
Buyer to a third party purchaser, up to a total amount of Five Hundred Thousand
Dollars ($500,000.00). Each such payment shall be payable severally eighty
percent (80%) to SJH Partnership and twenty percent (20%) to WGV. This
obligation for payment shall be evidenced by the note in the form attached
hereto as an Exhibit (the "Guaranty Fee Note"). The Guaranty Fee Note shall
require that such payments shall be made monthly within fifteen (15) days of the
close of the prior month and shall be delivered to SJH Partnership and WGV with
a report reconciling all receipts from Villa vacation week sales with payments
made under the Guaranty Fee Note for that month. SJH Partnership and WGV shall
have the right to audit the sales records of Buyer pertaining to Villa vacation
week sales in order to verify the correctness of the payments made under the
Guaranty Fee Note. If Buyer shall convey any portion of Parcel One to a third
party, other than an affiliated entity of Buyer or a condominium association,
prior to declaration of a timeshare regime on such portion of Parcel One, then
an amount of the remaining balance of the Guaranty Fee Note shall then be due
and payable equal to such balance multiplied by the percentage of the remaining
undeveloped
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Villas assigned by development rights to the portion of Parcel One so conveyed,
and which shall be payable severally eighty percent (80%) to SJH Partnership and
twenty percent (20%) to WGV. Any sums not paid when due shall bear interest at
the lesser of (i) eighteen percent (18%) per annum or (ii) the highest rate
permitted under Florida law.
2.2 Cash at Closing. At Closing, Buyer shall deliver to SJH
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Partnership the Purchase Price in cash, cashier's check, wire transfer of
immediately available federal funds, or other good funds. In the event payment
is made by wire transfer, sums shall be deemed paid by Buyer when receipt of the
wire transfer is acknowledged by a financial institution designated by SJH
Partnership as the recipient and SJH Partnership's account is credited.
2.3 Deposit. Upon Buyer's execution of this Agreement, Buyer shall
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deliver to Pappas Metcalf & Jenks, P.A. (the "Escrow Agent") the sum of Two
Hundred Fifty Thousand Dollars ($250,000.00) (the "Deposit"). Escrow Agent
shall hold the Deposit in an interest bearing account with interest accruing in
favor of the party entitled to the Deposit as specified in this Agreement. At
Closing, the Deposit and any and all interest accrued thereon shall be credited
against the Purchase Price and paid by Escrow Agent to SJH Partnership. The
Deposit shall be made by cash, cashier's check, wire transfer of immediately
available federal funds, or other good funds. In the event payment is made by
wire transfer, sums shall be deemed paid by Buyer when receipt of the wire
transfer is acknowledged by a financial institution designated by Escrow Agent
as the recipient and Escrow Agent's account is credited.
2.4 Escrow. The Deposit shall be delivered to Escrow Agent, and
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Escrow Agent shall hold and deliver the Deposit in accordance with the terms of
this Agreement. Escrow Agent shall at
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all times be authorized to deliver the Deposit in accordance with the terms of
this Agreement or with written instructions executed by both SJH Partnership and
Buyer. In the event that Escrow Agent shall receive a written claim of default
by either SJH Partnership or Buyer against the other, then Escrow Agent shall
not release the Deposit from escrow unless and until Escrow Agent shall have
received joint written instructions from SJH Partnership and Buyer as to the
proper delivery of the Deposit or Escrow Agent has received direction from a
court of competent jurisdiction (after expiration of any applicable appeal
period) as to the proper party entitled to receipt of the Deposit. Escrow Agent
shall be authorized to file an action in interpleader to determine the proper
party entitled to the Deposit, and the defaulting party, as determined by such
proceeding, shall indemnify and hold harmless Escrow Agent from all costs and
expenses, including reasonable attorneys' fees associated with such proceeding.
Escrow Agent may act in reliance upon any writing or instrument or signature
which it in good faith believes to be genuine and may assume that any person
purporting to give any writing, notice, advice, or instruction in connection
with the provisions hereof has been duly authorized to do so. Escrow Agent
shall not be liable in any manner for the sufficiency or correctness as to form,
manner of execution or validity of any instrument deposited in this escrow nor
as to the identity, authority or right of any persons executing the same; and
its duties hereunder shall be limited to the safekeeping of the Deposit, and for
the disposition of same in accordance with this Agreement. Escrow Agent hereby
executes this Agreement for the sole and exclusive purpose of evidencing its
agreement to the provisions of Sections 2.3 and 2.4 hereof. Buyer acknowledges
that Escrow Agent is also the firm representing SJH Partnership in this
transaction and Buyer consents to Escrow
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Agent's continued representation of SJH Partnership in any litigation arising
under this Agreement.
2.5 Conveyance of Title. At Closing, SJH Partnership shall convey to
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Buyer the Land, together with the Access Easement appurtenant to such Land, free
and clear of any and all liens, encumbrances, covenants, restrictions,
reservations, rights of way and easements except the Permitted Exceptions, as
defined in Section 2.8 below, and those matters contemplated under this
Agreement. SJH Partnership hereby discloses to Buyer the existence of those
title matters as set forth on an Exhibit to this Agreement (the "Known
Exceptions").
2.6 Evidence of Title. Within the later of five (5) days following
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the Effective Date or five (5) days after the date of delivery of the Survey as
referenced in Section 2.7 below, SJH Partnership shall cause to be prepared and
delivered to Buyer copies of the Known Exceptions and any other exceptions
appearing on the commitment, together with a commitment (the "Commitment") for
an owner's and mortgagee's policy of title insurance (the "Title Policies") in
favor of Buyer and the mortgage lender identified by Buyer to provide the
Completion Assurances (the "Mortgagee") respectively, setting forth the state of
title to the Land stating that, as of the date of the Commitment, SJH
Partnership is the fee simple owner of the Land and including (i) affirmative
Form 9 endorsement coverage as available in the State of Florida, (ii) insuring
the rights of Buyer as to the Access Easement and WGV Easement, (iii) including
a contiguity endorsement as to the contiguity of the Land to the WGV Easement,
contiguity of the WGV Easement to the Access Easement and contiguity of the
Access Easement to International Golf Parkway, survey endorsement FAC (S)4-
186.05(8)(h) and environmental lien endorsement (FAC (S)4-186.05(6)(a)(ALTA
8.1), and (iv) insuring Buyer's rights under Section 12.10 of this Agreement, if
such coverage is available from the Title Company. The Commitment shall
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provide for the issuance of the Title Policies by Commonwealth Land Title
Insurance Company, or other nationally recognized title company selected by SJH
Partnership (the "Title Company"), in standard ALTA Owner's Title Insurance
Form, as used in the State of Florida, insuring fee simple title of Buyer to the
Land and its rights in the Access Easement and WGV Easement in the amount of the
Purchase Price and insuring the lien of the Mortgagee as a first mortgage on the
Land and appurtenant Access Easement and WGV Easement.
2.7 Survey. Within ten (10) days of the Effective Date, SJH
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Partnership, at SJH Partnership's expense, shall provide to Buyer a boundary
survey (the "Survey") prepared by a licensed Florida land surveyor showing the
dimensions and correct legal metes and bounds description of the Land, the
Access Easement and the WGV Easement. The Land will consist of not less than
twenty-three (23) acres. The Survey shall contain a certificate certified to
Buyer, the Title Company and the Mortgagee certifying as to the contiguity of
the Land to the WGV Easement, contiguity of the WGV Easement to the Access
Easement and contiguity of the Access Easement to International Golf Parkway and
stating that it meets the minimum requirements for ALTA/ACSM survey and as
required by Florida law, includes designation of the flood plain area affecting
the Land, if any, and shall be sufficient to remove the survey exception from
the Commitment and Title Policies.
2.8 Defects. In the event that the Commitment or the Survey or Known
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Exceptions evidence title defects or exceptions unacceptable to Buyer (other
than the standard printed exceptions appearing in the Commitment to be removed
at Closing or those which do not materially affect the use of the Land as
contemplated under this Agreement), Buyer shall give SJH Partnership written
notice of such fact within fifteen (15) days of receipt by Buyer of the later of
the Commitment or Survey. In the event that the Title Company first raises a
title defect or exception unacceptable to Buyer
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subsequent to the date of the Commitment, Buyer shall give SJH Partnership
written notice of such fact within five (5) days after Buyer first becomes aware
of same. If Buyer does not provide timely notice of such exceptions to SJH
Partnership, all exceptions as identified in the Commitment, the Survey or the
Known Exceptions, shall be deemed approved by Buyer and the Closing shall
proceed without diminution in the Purchase Price. Any such exceptions approved
or deemed approved by Buyer are herein referred to as "Permitted Exceptions."
If Buyer provides timely notice of any defects, SJH Partnership shall be
obligated to cure such defects which are delinquent tax liens or consensual
liens of SJH Partnership or which can be cured by the payment of money
(specifically excluding the Known Exceptions), in which case SJH Partnership
shall have a period of sixty (60) days to eliminate any such defects, provided
SJH Partnership shall have no obligation to expend in excess of Fifty Thousand
Dollars ($50,000.00) or to institute litigation to remedy defects, other than
consensual liens or delinquent tax liens of SJH Partnership and the Closing Date
shall be extended for a like number of days. In the event SJH Partnership is
not required to eliminate such defects, as set forth herein, SJH Partnership
shall provide written notice to Buyer within five (5) days of notice of such
defects from Buyer that it does not intend to effect such cure and Buyer shall
have the right to (i) terminate this Agreement by written notice delivered to
SJH Partnership within five (5) days from notice from SJH Partnership and Buyer
shall receive a refund of the Deposit and all parties shall be relieved of any
obligations set forth herein, or (ii) waive any such defects and agree to accept
the condition of title as set forth in the Commitment and on the Survey and
proceed to Closing without diminution in the Purchase Price.
17
2.9 Closing Date.
------------
2.9.1 The Closing of this transaction shall take place on or
before July 15, 1996, at 10:00 A. M. or such earlier date and time to be
mutually agreed upon between the parties or as extended as provided in Section
2.9.2 below ("Closing" or "Closing Date"). The Closing shall take place in the
offices of Pappas Metcalf & Jenks, Professional Association, 200 West Forsyth
Street, Suite 1400, Jacksonville, Florida 32202, or at such other place within
St. Johns County or Duval County as may be selected by SJH Partnership and
Buyer.
2.9.2 The parties recognize that there are numerous
conditions precedent to the Closing of this transaction as set forth in Sections
9 and 10 below. As a result, the parties have agreed that if one or more
conditions precedent to either party's obligations to close under this Agreement
have not been satisfied or waived as of the originally anticipated Closing Date
set forth in Section 2.9.1 hereof and the affected party is not prepared to
close hereunder, then such party shall so notify the other party and the Closing
Date hereunder shall be automatically extended for such reasonable period of
time as may be necessary to cause such condition to be satisfied; provided,
however, that in no event shall the Closing Date be extended beyond September
30, 1996.
2.10 Documents to be Delivered at Closing. At Closing, SJH
------------------------------------
Partnership shall deliver to Buyer the following documents, where necessary,
fully executed by SJH Partnership:
2.10.1 (i) Special Warranty Deed conveying to Buyer fee simple
title to the Land in the form and content of an Exhibit ("Special Warranty
Deed") attached hereto, subject only to the Permitted Exceptions; and (ii)
Access Easement in the form and content of an Exhibit ("Access Easement")
attached hereto; and
2.10.2 Affidavit of SJH Partnership in form satisfactory to
the Title Company for elimination of mechanics lien
18
exceptions and parties in possession exceptions from any mortgagee title binder
obtained by Buyer; and
2.10.3 A certificate executed by an officer of the general
partner of SJH Partnership certifying that all representations and warranties
contained herein are true and correct as of the Closing Date in all material
respects accompanied by a certificate of incumbency as to the parties executing
on behalf of SJH Partnership; and
2.10.4 License Agreement and Memorandum of Agreement, in form
and content attached hereto as Exhibits; and
2.10.5 Assignment of Development Rights under the Saint Johns
DRI for the development of up to a maximum of 440 resort condominium and/or
vacation ownership dwelling units; and
2.10.6 An affidavit stating that SJH Partnership is not a
"foreign person," as defined in Section 1445 of the Internal Revenue Code and
the regulations thereunder; and
2.10.7 Evidence acceptable to Buyer's attorney that SJH
Partnership is validly formed, in good standing and is authorized to perform its
obligations under this Agreement; and
2.10.8 An opinion of SJH Partnership's attorney in form and
content reasonably satisfactory to Buyer's attorney opining as to the authority
of SJH Partnership to enter into and deliver this Agreement and all documents to
be delivered by SJH Partnership pursuant to the terms of this Agreement and as
to the validity and enforceability of this Agreement and all documents to be
delivered by SJH Partnership pursuant to the terms of this Agreement; and
2.10.9 The originally executed title Commitment insuring fee
simple title to the Land in Buyer consistent with Sections 2.6, 2.7 and 2.8
above and marked to eliminate all preprinted standard exceptions and all
exceptions other than Permitted Exceptions and taxes for the year of conveyance;
and
19
2.10.10 Such other documents expressly required to be delivered
or furnished pursuant to any other provisions of this Agreement or reasonably
required to carry out the purpose and intent of this Agreement, including but
not limited to the Special Assessment Agreement.
At Closing, Buyer shall deliver to SJH Partnership the following
documents:
2.10.11 A certificate executed by an officer of Buyer certifying
that all representations and warranties contained herein are true and correct as
of the Closing Date in all material respects, accompanied by a certificate of
incumbency as to the parties executing on behalf of Buyer; and
2.10.12 Evidence acceptable to SJH Partnership's attorney that
Buyer is validly formed, in good standing and is authorized to perform its
obligations under this Agreement; and
2.10.13 Guaranty Fee Note, License Agreement and Memorandum of
Agreement in form and content attached hereto as Exhibits; and
2.10.14 An opinion of Buyer's attorney in form and content
reasonably satisfactory to SJH Partnership's attorney opining as to the
authority of Buyer to enter into and deliver this Agreement and all documents to
be delivered by Buyer pursuant to the terms of this Agreement and as to the
validity and enforceability of this Agreement and all documents to be delivered
by Buyer pursuant to the terms of this Agreement; and
2.10.15 Any other documents expressly required to be delivered
or furnished pursuant to any other provision of this Agreement or reasonably
required to carry out the purpose and intent of this Agreement, including but
not limited to the Special Assessment Agreement.
2.11 Adjustments, Prorations, Costs of Transactions. The following
----------------------------------------------
items shall be prorated, apportioned or paid by the parties as of the Closing
Date as follows:
20
2.11.1 Real estate taxes taking into consideration any
discounts for early payment. Taxes shall be prorated based upon the estimated
amount of taxes for 1996 applicable to the Land with such amount to be estimated
as to vacant lands based upon a "cutout" of the acreage of the Land as a
proportion of the total tax bill for the Land and associated properties assessed
thereunder. Tax proration shall be adjusted promptly after final determination
of the same after Closing; and
2.11.2 Certified, confirmed and ratified special assessment
liens due and payable on a one-time basis as of the Closing Date (and not as of
the Effective Date) shall be paid by SJH Partnership at Closing or Buyer shall
receive a credit therefor. Pending liens as of the Closing Date, which are due
and payable after Closing, shall be assumed by Buyer; and
2.11.3 Association(s) assessments due and payable to the
Association(s), respectively, as described in Section 12.9 below, for the month
of Closing, if any; and
2.11.4 SJH Partnership shall pay for (i) the cost of
documentary stamp taxes on the deed of conveyance; (ii) SJH Partnership's
attorneys' fees; (iii) recording fees; (iv) the Commitment and Title Policies
prepared in accordance with Section 2.6 except any additional cost resulting
from simultaneous issuance of Mortgagee's Title Policy; (v) the Survey prepared
in accordance with Section 2.7; and (vi) the Environmental Audits as defined in
Section 6.6. Buyer shall pay for (i) Buyer's attorneys' fees; (ii) any
additional cost of the Title Policies resulting from the simultaneous issuance
of the Mortgagee Title Policy prepared in accordance with Section 2.6; (iii) all
costs of any related transactions between Buyer and third parties, including
costs of mortgage financing; and (iv) documentary stamp taxes on the Guaranty
Fee Note.
21
2.12 Documents Delivered to SJH Partnership. In the event this
--------------------------------------
transaction shall not close for any reason (other than a default by SJH
Partnership of its obligations set forth in this Agreement), Buyer shall deliver
to SJH Partnership, at no cost to SJH Partnership, such information promulgated
or obtained by Buyer related to the condition of the Land and under the control
of Buyer. Such materials shall be delivered to SJH Partnership within thirty
(30) days of the date of termination of this Agreement. Buyer shall use its
best efforts to ensure that all such materials are transferrable to SJH
Partnership upon termination of this Agreement.
3. REPRESENTATIONS OF SJH PARTNERSHIP. SJH Partnership represents to
----------------------------------
Buyer that:
3.1 Partnership Standing. SJH Partnership is a limited partnership
--------------------
duly organized and in good standing under the laws of the State of Florida.
3.2 Partnership Authority. SJH Partnership's execution and delivery
---------------------
of this Agreement to Buyer and its sale and conveyance of Parcel One provided
for herein have been authorized by SJH Partnership, in accordance with
applicable law and that all other actions required to be taken to authorize
execution of this Agreement and SJH Partnership's performance of all obligations
undertaken by it under its terms have been duly and regularly taken.
3.3 Documents Delivered. To the best of SJH Partnership's knowledge,
-------------------
all documents delivered to Buyer as required under the terms of this Agreement
constitute true and correct copies of the original instruments and, except as
set forth in this Agreement, to the best of its knowledge SJH Partnership knows
of no amendment, modification or other change to said documents.
22
3.4 No Condemnation or Litigation. To SJH Partnership's knowledge,
-----------------------------
there are no condemnation proceedings against or affecting Parcel One, nor any
other litigation either pending or threatened against Parcel One which would
have a material and adverse impact upon the construction of the Villas.
3.5 No Actions. There are no actions, suits or proceedings pending
----------
or affecting SJH Partnership which would impede or otherwise impair its ability
to perform its obligations under this Agreement. There are no such actions
threatened against SJH Partnership other than prior claims of TACO, Inc. and its
constituents related to bond validation proceedings which have been affirmed, on
appeal, by the Supreme Court of Florida, subsequent to such threatened claims.
3.6 No Hazardous Waste. To SJH Partnership's knowledge, no Hazardous
------------------
Wastes have been discharged, released, disposed of or allowed to escape on or
under the Land, and to the actual knowledge of SJH Partnership, no
investigation, administrative order, consent order or agreement litigation or
settlement with respect to Hazardous Wastes is proposed, threatened, anticipated
or in existence with respect to the Land.
3.7 Permits, DRI, PUD Representations. The Surface Water Permits,
---------------------------------
the Saint Johns PUD and Saint Johns DRI are in full force and effect and there
have been no modifications or violations of any of the terms and conditions
thereof which would materially and adversely affect or delay the development and
operation of any component part of the Villas subject to Buyer's obligation to
obtain the Final Development Plan as defined in Section 6.3 below. The Saint
Johns PUD and Saint Johns DRI expressly allow construction of the Villas subject
to compliance with the terms and conditions thereof and the Final Development
Plan and compliance with all other applicable laws and regulations including but
not
23
limited to the requirement to obtain the Final Development Plan, construction
plan approval and a building permit.
3.8 Ownership of Interchange Tract. SJH Partnership is the fee simple
------------------------------
owner of the entire Interchange Tract, other than the Hall of Fame footprint
parcel and Utility Site (as such terms are defined in Section 12.10 hereof).
3.9 As of the Closing Date. All representations made by SJH
----------------------
Partnership pursuant to this Section 3 will be true and correct at the Closing
Date as if they were made at that time and shall survive the Closing; provided,
however, should SJH Partnership have actual knowledge of changed circumstances
which shall render any of the representations and warranties set forth above
untrue prior to the Closing Date, it shall provide written notice of such
changed circumstances to Buyer. To the extent that such changed circumstances
shall materially and adversely affect the ability of Buyer to construct and
operate the Villas, Buyer may, at its option, by written notice delivered to SJH
Partnership within ten (10) days of the date of notice of such changed
circumstances received from SJH Partnership, elect to terminate this Agreement
and receive a refund of the Deposit. If Buyer shall not provide timely written
notice of such intent to terminate, its right to terminate this Agreement as a
result of such changed circumstances shall be fully and forever waived and the
Closing shall proceed without diminution in the Purchase Price.
4. REPRESENTATIONS OF BUYER. Buyer represents to SJH Partnership that:
------------------------
4.1 Corporate Standing. Buyer is a limited partnership duly
------------------
organized and in good standing under the laws of the State of Florida.
4.2 Corporate Authority. Buyer's execution and delivery of this
-------------------
Agreement to SJH Partnership and its purchase of Parcel One
24
provided for herein have been authorized by Buyer, in accordance with applicable
law and that all other actions required to be taken to authorize execution of
this Agreement and Buyer's performance of all obligations undertaken by it under
its terms have been duly and regularly taken.
4.3 No Actions. There are no actions, suits or proceedings pending
----------
or to the knowledge of Buyer threatened against or affecting Buyer, which would
impede or otherwise impair its ability to perform its obligations under this
Agreement.
4.4 Representations. All representations made by Buyer pursuant to
---------------
this Section 4 will be true and correct at the Closing Date as if they were made
at that time and shall survive the Closing.
5. ACKNOWLEDGMENTS OF BUYER. Buyer acknowledges that:
------------------------
5.1 Buyer's Examinations. Prior to Closing, Buyer intends to make
--------------------
such examinations of Parcel One, SJH Partnership's plans for future development
(residential, commercial, recreational and otherwise), the terms of the Hall of
Fame Conveyance Agreement, World Golf Village Golf Course Conveyance Agreement
and the River Tract Golf Course Conveyance Agreement, as they affect Parcel One,
the zoning, permitting and all governmental approvals, utility supply and all
other matters required for Buyer's development plans for Parcel One as Buyer
deems necessary. In entering into this Agreement, Buyer shall not rely upon any
oral or written representations, warranties or statements, whether express or
implied, made by SJH Partnership or any agent, employee or representative of SJH
Partnership or by any broker or any other person representing or purporting to
represent SJH Partnership with regard to Parcel One or any matters affecting
Parcel One which are not expressly set forth in this Agreement or any other
written agreement entered into between SJH Partnership and Buyer
25
contemporaneously herewith or on the Closing Date. Buyer agrees that prior to
Closing, Buyer shall notify SJH Partnership of its intent to consult with any
governmental authority concerning permits or other governmental approvals
applicable to Parcel One or the Saint Johns DRI and provide SJH Partnership an
opportunity to participate in any such consultation.
5.2 Development Criteria. Buyer acknowledges that the Villas shall
--------------------
be constructed and developed in compliance with the development criteria
attached hereto as an Exhibit (the "Development Criteria") and in accordance
with the Site Plan. The Development Criteria shall constitute covenants running
with title to the Land and shall be binding upon the successors and assigns of
the parties to this Agreement.
5.3 County Approvals. Buyer acknowledges and agrees that Buyer
----------------
shall, subject to the obligations of SJH hereunder and under the Assignment of
Development Rights, at its own cost and expense, be responsible for submission
of all materials and applications pertaining to construction of the Villas to
the County and any other governmental authorities, including application for
Final Development Plan approval and building permits and payment of all fees and
charges imposed by any such authorities in connection with such permits and
approvals. SJH Partnership shall cooperate with Buyer in the submission or the
County approval process, at no expense to Buyer, including the submission of a
PUD modification increasing the permissible building height to 65 feet.
5.4 Exculpation. Buyer acknowledges that SJH Partnership's review
-----------
and approval of any plans and specifications does not constitute SJH
Partnership's representation that the same are in compliance with any applicable
building or zoning codes, nor do such approvals constitute SJH Partnership's
approval of Buyer's construction standards or technique. The purpose of SJH
Partnership's approval is to ensure that such improvements are of an appearance
and quality compatible with the development plan for the Saint Johns DRI and are
developed in compliance with the terms of this Agreement. In connection with
all reviews, acceptances,
26
inspections, or approvals by SJH Partnership contemplated under this section,
SJH Partnership shall not be liable to Buyer or to any other person on account
of any claim, liability, damage or expense suffered or incurred by or threatened
against Buyer or such other person and arising out of, or in any way related to,
the subject matter of any such reviews, acceptances, inspections or approvals
when given, granted or withheld as provided in this Agreement.
5.5 PUD/DRI. Parcel One is subject to the Saint Johns DRI and Saint
-------
Johns PUD and other state and federal land use regulations generally applicable
to the development of real estate.
6. OBLIGATIONS OF BUYER AND SJH PARTNERSHIP PRIOR TO CLOSING.
---------------------------------------------------------
6.1 Preliminary Plans. Prior to Closing, Buyer shall cause to be
-----------------
prepared and delivered to SJH Partnership, at Buyer's expense, for SJH
Partnership's review and approval, the preliminary plans and specifications for
the Villas (the "Preliminary Plans"). The Preliminary Plans shall comply with
the Development Criteria and the Site Plan and shall include:
6.1.1 A detailed site plan depicting the location of all
improvements to be constructed upon the Land including, but not limited to, the
location of all buildings, roads, drives, lakes, canals, drainage structures,
parking areas, traffic circulation within the Villas and the point of connection
to the arterial road system; and
6.1.2 Preliminary landscaping plans; and
6.1.3 The location and number of Villas and ancillary
facilities and amenities to be incorporated as part of each phase of development
in accordance with the Development Criteria; and
27
6.1.4 The location, description of materials and design of all
exterior signage including those to be located upon the Land; and
6.1.5 A description of all exterior materials, exterior
colors, building design and elevations and height.
If the Preliminary Plans shall evidence less than 440 resort condominium
and/or vacation ownership dwelling units to be constructed upon the Land, the
units to be assigned in the Assignment of Development Rights shall be
correspondingly reduced.
6.2 SJH Partnership's Approvals. SJH Partnership shall promptly
---------------------------
review all plans, documents and other items required to be delivered to SJH
Partnership pursuant to this Agreement for SJH Partnership's approval, whether
prior to or subsequent to Closing, and shall notify Buyer in writing of SJH
Partnership's approval or disapproval within fifteen (15) days from receipt of
such items by SJH Partnership unless another time period is specifically
provided for herein, and such approvals shall not be unreasonably denied or
delayed and shall be limited to exterior improvements. Such approvals shall be
provided by SJH Partnership in recordable form, if requested by Buyer.
6.3 Final Development Plan. Not later than June 15, 1996, Buyer
----------------------
shall submit an application for the Final Development Plan for the Phase I
Improvements to St. Johns County in accordance with the Zoning Code requirements
(the "Final Development Plan").
6.4 Conditions Precedent. Prior to Closing, as may be extended under
--------------------
Section 2.9.2 above, SJH Partnership and Buyer shall use all reasonable efforts
to satisfy the conditions precedent to Closing, as set forth in Sections 9 and
10 below and shall mutually cooperate with one another and third parties in good
faith in an effort to satisfy each and every condition precedent to Closing set
forth in Sections 9 and 10 below.
28
6.5 Entry onto the Land; Indemnification. During the period from the
------------------------------------
Effective Date to the Closing Date, Buyer, its agents and designees shall have
the right, for so long as this Agreement is not in default, of access across the
Interchange Northwest Parcel to the Land and the right to enter upon the Land
for the purpose of making surveys, engineering tests, subsoil and similar
analyses. Buyer hereby agrees to assume all risk involved in (i) entering upon
the Interchange Northwest Parcel and the Land, and (ii) the performance of the
referenced activities and agrees to indemnify and hold SJH Partnership harmless
from and against all loss, cost, expense and liability as a result of death or
injury to persons or damage to property sustained by any party arising out of or
in connection with the exercise of any such rights. Following inspection of the
Land, Buyer shall restore the Land to its original condition.
6.6 Environmental Audit. Within thirty (30) days of the date of this
-------------------
Agreement, SJH Partnership shall provide a Phase I environmental audit (the
"Phase I Audit") of the Land and, if recommended by the Phase I Audit, a Phase
II environmental audit of the affected portions of the Land, both prepared by
Law Engineering and Environmental Services, Inc. (the "Environmental Audits").
If the Environmental Audits indicate that there are environmental conditions as
to the Land which require remediation under applicable state or federal laws,
and SJH Partnership agrees in writing within fifteen (15) days of notice of such
conditions to (i) bear the cost to cure any such environmental condition
requiring remediation provided the same can be cured without substantial delay
to or interference with construction of the Villas, (ii) provide financial
assurances reasonably satisfactory to Buyer in an amount necessary to effect
such cure and (iii) indemnify Buyer against any liability with respect to the
environmental matters to be cured, in which case, this Agreement
29
shall remain in full force and effect and the Closing shall proceed. If SJH
Partnership does not elect to effect such remediation, Buyer may, at its option,
(i) terminate this Agreement with five (5) days written notice from SJH
Partnership of its election not to remediate or (ii) waive such matters and
proceed to Closing.
7. INTENTIONALLY OMITTED.
---------------------
8. INTENTIONALLY OMITTED.
---------------------
9. CONDITIONS OF SJH PARTNERSHIP'S OBLIGATIONS TO CLOSE THIS TRANSACTION.
---------------------------------------------------------------------
In addition to SJH Partnership's right to terminate this Agreement as a result
of a default of Buyer, in the event any of the following conditions shall not be
met at Closing or such earlier date as specified below, SJH Partnership may, at
its option, terminate this Agreement or SJH Partnership may, at its option,
waive such condition and proceed to Closing. If this Agreement shall terminate
as a result of failure of the conditions set forth in Sections 9.1 or 9.2, the
Deposit shall be retained by SJH Partnership. If this Agreement shall terminate
as a result of failure of the conditions set forth in Sections 9.3 through 9.10,
the Deposit shall be returned to Buyer, unless such failure is the result of a
default by Buyer under the referenced agreements, in which case the Deposit
shall be retained by SJH Partnership.
9.1 Buyer's Representations. Buyer shall certify to SJH Partnership
-----------------------
at Closing that all representations and warranties made under this Agreement are
true and correct as of the Closing Date in all material respects.
9.2 Complete Performance. At Closing, Buyer shall have performed all
--------------------
obligations of Buyer under this Agreement to be performed at or prior to
Closing.
30
9.3 Other Conveyances. Those parties to the Hall of Fame Conveyance
-----------------
Agreement, Hotel Agreement for Sale and Purchase, World Golf Village Golf Course
Conveyance Agreement and Parcel Two Sale Agreement (collectively, the "Other
Conveyance Agreements") shall have performed all their respective obligations
prior to Closing and all conditions to performance by SJH Partnership thereunder
shall have been met.
9.4 Golf Facility Use Agreement, Special Assessment Agreement and
-------------------------------------------------------------
Voluntary Payment Declaration. SJH Partnership, WGV, Scratch, Buyer and JQH-LP
- -----------------------------
shall have executed and delivered the WGV Golf Facility Use Agreement, and such
parties and the County shall have executed and delivered the Voluntary Payment
Declaration and Special Assessment Agreement and related agreements with the
County.
9.5 WGV Easement. Buyer and WGV shall have executed and delivered an
------------
easement agreement (the "WGV Easement Agreement") providing pedestrian and
vehicular access over the portion of the entrance road (the "WGV Easement") to
be owned by WGV or the WGV Property Owners Association, Inc., as shown on the
Site Plan.
9.6 Master Development Agreements. All parties shall have executed
-----------------------------
and delivered the Master Development Agreements and all agreements attached to
the Master Development Agreements to be executed at Closing shall have been
executed and delivered.
9.7 SJH Completion Assurances. Not later than June 15, 1996, SJH
-------------------------
Partnership shall have obtained committed funding sources adequate to construct
the Infrastructure Improvements, which sources may include (i) contracts for
excavation of fill and (ii) equity, bonds, unconditional and irrevocable letters
of credit, or loan commitments to the extent issued by a bank, insurance
company, or pension fund, or other reputable lending institution; and in the
case of a loan commitment, all commitment fees required to be paid prior to
closing of such loan shall have been paid by SJH
31
Partnership and such loan commitment shall be fully binding on the lender,
subject only to closing requirements of this transaction and such lender's other
customary closing conditions and requirements. These assurances, as approved by
Buyer, are hereinafter referred to as the "SJH Completion Assurances."
9.8 Buyer Completion Assurances. Buyer shall have delivered to SJH
---------------------------
Partnership evidence of the Buyer Completion Assurances not later than June 15,
1996, and at Closing shall have closed on any loan providing the Buyer
Completion Assurances and the Buyer Completion Assurances shall be available to
complete the Phase I Improvements, subject only to normal and customary lending
practices and requirements of this transaction.
9.9 Construction Agreement. Buyer and WGV shall have executed and
----------------------
delivered the Construction Reimbursement Agreement.
9.10 Subordination of Loan. The SJH Completion Assurances shall
---------------------
permit the first lien mortgage of Barnett Bank of Jacksonville, N.A., which is
to be recorded at Closing encumbering the Restricted Property, to be
subordinated to the exclusive rights of Buyer set forth in Section 12.10 below.
10. CONDITIONS OF BUYER'S OBLIGATIONS TO CLOSE THIS TRANSACTION. In
-----------------------------------------------------------
addition to Buyer's right to terminate this Agreement as set forth in Section
2.8 above, or as a result of a default by SJH Partnership, in the event any of
the following conditions shall not be met as of Closing, or such earlier date as
may be specified below, Buyer may, at its option, terminate this Agreement or
Buyer may waive such conditions and proceed to Closing, without diminution in
the Purchase Price. If this Agreement shall terminate as the result of failure
of the conditions set forth in Sections 10.1 through 10.19, the Deposit shall be
returned to Buyer, unless such failure is the result of a
32
default by Buyer under any of the referenced agreements in which case the
Deposit shall be retained by SJH Partnership.
10.1 Representations. SJH Partnership shall certify to Buyer at
---------------
Closing that all representations and warranties made under this Agreement are
true and correct as of the Closing, in all material respects.
10.2 Complete Performance. SJH Partnership shall have performed all
--------------------
obligations of SJH Partnership provided for herein to be performed at or prior
to Closing.
10.3 Other Conveyances. SJH Partnership shall have closed on the
-----------------
Other Conveyance Agreements and shall have delivered to Buyer copies of the
respective deeds, each of which shall include a deed restriction or reservation
by SJH Partnership with respect to Buyer's exclusive rights set forth in Section
12.10 hereof and in the Special Warranty Deed.
10.4 Golf Facility Use Agreement, Special Assessment Agreement and
-------------------------------------------------------------
Voluntary Payment Declaration. Buyer, Scratch, WGV, JQH-LP and SJH Partnership
- -----------------------------
shall have executed and delivered the WGV Golf Facility Use Agreement, and such
parties and the County shall have executed and delivered the Special Assessment
Agreement and Voluntary Payment Declaration and related agreements with the
County.
10.5 WGV Easement. Buyer and WGV shall have executed and delivered
------------
the WGV Easement Agreement.
10.6 WGV/Villa License. Buyer and WGV shall have executed and
-----------------
delivered the agreement licensing the use of the World Golf Village tradenames
and logos for the benefit of the Villas (the "Villa License Agreement") and a
Villa Services Agreement regarding services to be provided to buyer by WGV.
10.7 River Tract. Dunavant and Scratch shall have executed and
-----------
delivered the River Tract Golf Course Conveyance Agreement.
33
10.8 Master Development Agreements. All parties shall have executed
-----------------------------
and delivered the Master Development Agreements and all agreements attached to
the Master Development Agreements to be executed at Closing shall have been
executed and delivered.
10.9 Buyer Completion Assurances. Not later than June 15, 1996, Buyer
---------------------------
shall have obtained committed funding sources which shall be adequate to
construct all Phase I Improvements and to meet its financial obligations under
the Construction Reimbursement Agreement, which sources may include equity,
bonds, unconditional letters of credit or loan commitments, when issued by a
bank, insurance company or pension fund or other reputable lending institution;
and in the case of a loan commitment, all commitment fees required to be paid
prior to closing of such loan shall have been paid by Buyer and such loan
commitment shall be fully binding on the lender, subject only to the Closing
requirements of this transaction and such lender's other customary closing
conditions and requirements (the "Buyer Completion Assurances").
10.10 SJH and Other Completion Assurances. Not later than June 15,
-----------------------------------
1996, SJH Partnership shall have delivered to Buyer written evidence of (i) the
SJH Completion Assurances and Buyer shall have received written evidence of (ii)
committed funding sources in favor of Scratch, UCC, JQH-LP and WGV with respect
to their obligations under their respective Other Conveyance Agreements
(collectively, the "Other Completion Assurances"), and at Closing each of the
foregoing shall have closed on any loan providing the SJH Completion Assurances
or Other Completion Assurances and the SJH Completion Assurances and Other
Completion Assurances shall be available to complete the Infrastructure
Improvements or other contemplated improvements, as applicable, subject only to
normal and customary lending practices and requirements of this transaction.
34
10.11 Hotel. Buyer and JQH-LP shall have executed and delivered a
-----
solicitation and lease agreement.
10.12 WGV. Buyer and WGV shall have executed and delivered an
---
agreement concerning information kiosks located on the Hall of Fame Parcel.
10.13 PGA Tour. Buyer and the PGA Tour, Inc. shall have executed and
--------
delivered a solicitation and marketing agreement.
10.14 Scratch. Buyer and Scratch shall have executed and delivered a
-------
solicitation and lease agreement pertaining to the WGV Golf Course Parcel.
10.15 UCC. Buyer and UCC shall have executed and delivered a
---
solicitation and lease agreement pertaining to Parcel Two.
10.16 Construction Agreement. Buyer and WGV shall have executed and
----------------------
delivered the Construction Reimbursement Agreement.
10.17 Zoning Evidence. Buyer shall have obtained a letter from the
---------------
County in substantially the form attached as an Exhibit confirming certain
matters pertaining to zoning and land use which affect Parcel One.
10.18 Utilities. Buyer shall have received evidence reasonably
---------
satisfactory to Buyer of the availability of water, sewer, electric and
telephone service to serve the Villas when constructed.
10.19 Estoppel Letters. Buyer shall have received estoppel letters
----------------
from the Associations and the utility provider identified on Exhibit C in form
reasonably satisfactory to Buyer setting forth the assessments then due, if any.
11. CONSTRUCTION.
------------
11.1 Final Plan and Specification Approval. Not later than fifteen
-------------------------------------
(15) days prior to the Commencement Date as to the Phase I Improvements and
prior to the start of construction of any
35
subsequent phase of the Villas, Buyer shall cause to be prepared and delivered
to SJH Partnership a copy of all working drawings, plans and specifications and
material specifications for the construction of the applicable phase of the
Villas, and all parking, landscaping, lighting, signage, utility lines and
related amenity improvements and equipment to be located upon the Land as part
of the applicable phase. Such plans and specifications submitted by Buyer shall
be in substantial compliance with the Final Development Plan, as defined in
Section 11.11 hereof, the Preliminary Plans approved by SJH Partnership and the
Development Criteria, except for modifications approved by SJH Partnership.
Approval by SJH Partnership shall be limited to exterior improvements and shall
be consistent with its approval of the Preliminary Plans. Approval shall not be
unreasonably denied, withheld or delayed but may be based upon purely aesthetic
grounds determined in the reasonable discretion of SJH Partnership.
Notwithstanding anything to the contrary contained herein, SJH Partnership shall
approve improvements which are of an appearance and quality comparable to those
plans submitted by Buyer to SJH Partnership based upon Buyer's affiliated
development located in Orlando, Florida. The working drawings, plans and
specifications, materials and signs described herein and approved by SJH
Partnership are referred to as the "Plans and Specifications."
11.2 Commencement and Completion.
---------------------------
11.2.1 On or before thirty (30) days subsequent to the later
to occur of (i) Closing or (ii) Final Development Plan approval (the
"Commencement Date"), subject to Force Majeure, Buyer, at its sole cost and
expense, shall commence construction, as defined below, and diligently pursue to
completion on or before February 1, 1998 (the "Completion Date") the
construction of a minimum of ninety-six (96) resort condominium and/or vacation
ownership dwelling units with one hundred twenty-eight (128)
36
separately keyed rooms which may be used for transient rental purposes (the
"Phase I Units") all in compliance with the requirements of the Development
Criteria and the Plans and Specifications. Commencement of construction, for
purposes of this Section 11, shall mean commencement of site grading and site
development. The Commencement Date shall be extended to allow for posting of
the security contemplated in Section 11.15 below, if required by the County as a
condition to issuance of building permits for the Phase I Units.
11.2.2 Buyer shall complete construction of the Phase I Units
on or before the Completion Date, subject to Force Majeure, or as extended
pursuant to Section 11.2.1 above. Completion shall be evidenced by issuance of
a certification of substantial completion by Buyer's engineer or contractor, a
copy of which shall be provided to SJH Partnership on or before such required
completion date. Buyer shall also complete certain landscaping improvements to
the undeveloped portions of the Land on or before the Completion Date, subject
to Force Majeure, so as to provide an aesthetically pleasing appearance on such
portions of the Land visible from the WGV Easement as more particularly
described in the Development Criteria (the "Landscaping Improvements"). The
Phase I Units and the Landscaping Improvements are referred to collectively
herein as the "Phase I Improvements."
11.2.3 In the event Buyer fails to commence or complete
construction as provided in this Section 11, subject to Force Majeure, SJH
Partnership shall be entitled to exercise all remedies available at law or in
equity for such default.
11.3 Buyer Offsite Improvements. Buyer shall bear its allocated
--------------------------
share of the costs to construct the WGV Easement to be constructed by WGV
adjacent or in proximity to the Land, as more particularly set forth under the
terms of the Construction Reimbursement Agreement. Buyer hereby acknowledges
that SJH
37
Partnership has no obligation to construct any utility or other on or offsite
improvements except as specifically set forth in Section 11.4 below.
11.4 Offsite Infrastructure. SJH Partnership shall, at its sole
----------------------
expense, be responsible for (i) construction of the Access Road into the
Interchange Northwest Parcel providing vehicular ingress and egress from
International Golf Parkway to the point as shown on the Site Plan ("Road
Connection Point") and landscaping of the Access Road, and (ii) construction of
Lake Numbers 315, 316, 317, 1/2 of 318, 321, 322, 326, 327, 329, 330, 331 and
332 of the master drainage system generally as depicted on Real Estate Map
prepared by Bessent, Hammack & Ruckman dated October 27, 1994 ("Real Estate
Map") attached as an Exhibit to this Agreement to the extent necessary to
provide adequate drainage for the Property in accordance with the Surface Water
Permits (the "Drainage Improvements"), such improvements collectively the
"Infrastructure Improvements." The timing of commencement of construction of
the Infrastructure Improvements shall be coordinated with Buyer so that the
Access Road and landscaping of it shall be completed not later than fifteen (15)
months from the Closing Date and the Drainage System shall be completed not
later than September 30, 1997, subject only to Force Majeure. SJH Partnership
shall ensure that all work is done in a first-class manner and that all phases
of the work are commenced and carried out without delay, subject to Force
Majeure, in accordance with the Infrastructure Development Criteria attached
hereto as an Exhibit. Buyer acknowledges that the electric and telephone lines
and water and sewer improvements necessary to service the Villas are installed
by independent utility companies. SJH Partnership will not be responsible for
the installation of any utility improvements constructed by utility companies or
the County or for the availability of service from utility companies to the
Villas, but shall be obligated to grant
38
such utility easements over and upon the Interchange Northwest Parcel, as may be
reasonably necessary for such companies to service the Villas. In the event SJH
Partnership fails to commence or complete construction or grant utility
easements as provided in this Section 11, subject to Force Majeure, Buyer shall
be entitled to exercise all remedies available at law or in equity for such
default.
11.5 Mechanics Liens. Buyer and SJH Partnership shall comply in all
---------------
respects with the Florida Mechanics Lien Law to ensure that no mechanics lien is
imposed upon property of any other party during the course of construction. Any
mechanics lien affecting property owned by another shall immediately be bonded
off by the responsible party.
11.6 Insurance. Buyer and SJH Partnership, from and after having
---------
commenced construction activities, shall be responsible to maintain, during the
progress of any work, insurance written by companies of recognized standing
qualified to do business in Florida, as follows:
11.6.1 General comprehensive public liability insurance for
bodily injury, death or property damage, with minimum limits of Five Million
Dollars ($5,000,000.00) for bodily injury or death for any one occurrence or
accident, and One Million Dollars ($1,000,000.00) for property damage for any
one occurrence or accident; and
11.6.2 Workers Compensation in complete compliance with all
federal and state laws; and
11.6.3 Comprehensive automobile liability (owned, non-owned,
hired), which coverage shall be not less that Five Hundred Thousand Dollars
($500,000.00); and
11.6.4 Builders' risk insurance insuring against all loss or
damage to the work by reason of any hazard; and
39
11.6.5 Certificates of such insurance coverage shall be
furnished to each party before commencement of any construction activity. These
certificates shall provide that the insured shall give thirty (30) days written
notice to the other party prior to change or cancellation of any policy. All
policies of insurance shall contain a waiver of subrogation of any rights
against the other party, their employees, agents, servants and representatives,
as related to any or all losses, expenses, demands, claims or suits caused or
occasioned by, attributed to, arising out of or incidental to any negligence or
misfeasance on the part of the other parties, their employees, agents, servants
or representatives. Buyer or SJH Partnership shall be named as an additional
insured under each policy carried pursuant to this Section 11.6 with coverage
extended for all risks protected against by such policy. Each such policy
carried shall be primary, whether or not the other party has other collectable
insurance. Certificates of such insurance shall be delivered to any additional
insured prior to commencement of any construction.
11.7 Indemnity.
---------
11.7.1 In consideration of One Hundred Dollars ($100.00) paid
by SJH Partnership to Buyer, receipt and sufficiency of which is hereby
acknowledged, Buyer agrees to indemnify and hold SJH Partnership, its
affiliates, agents and employees harmless against all damages, claims,
liabilities, losses or related expenses, including reasonable attorneys' fees
(whether incurred in preparation for trial, at trial, on appeal or in any
insolvency proceeding), that may arise from (a) any personal injury or property
damage occurring on the Land not covered by the insurance described in Section
11.6 in connection with construction activities by or on behalf of Buyer upon
the Land regardless of whether negligence of the indemnified party may have
contributed to the claim, damage, loss or expense; (b) any mechanics or
40
materialmen liens filed against the property of SJH Partnership in connection
with construction activities of Buyer, including liens for materials delivered
to the construction site; and (c) any uncured violation by Buyer of requirements
of Saint Johns DRI or Surface Water Permits.
11.7.2 In consideration of One Hundred Dollars ($100.00) paid
by Buyer to SJH Partnership, receipt and sufficiency of which is hereby
acknowledged, SJH Partnership agrees to indemnify and hold Buyer, its
affiliates, agents and employees harmless against all damages, claims,
liabilities, losses or related expenses, including reasonable attorneys' fees
(whether incurred in preparation for trial, at trial, on appeal or in any
insolvency proceeding), that may arise from (a) any personal injury or property
damage occurring on land owned by SJH Partnership not covered by the insurance
described in Section 11.6 in connection with construction activities by or on
behalf of SJH Partnership regardless of whether negligence of the indemnified
party may have contributed to the claim, damage, loss or expense; (b) any
mechanics or materialmen liens filed against the Land in connection with
construction activities of SJH Partnership, including liens for materials
delivered to the construction site; and (c) any uncured violation by SJH
Partnership of requirements of Saint Johns DRI or Surface Water Permits.
11.8 Temporary Easements. SJH Partnership and Buyer shall, subject
--------------------
to Force Majeure, provide to one another temporary easements for access by
construction vehicles and for construction of utilities during the course of
construction activity, provided that such other access does not unreasonably
interfere with their respective construction activities. SJH Partnership shall
provide its temporary construction access easement over and pursuant to terms of
the Access Easement. The precise location of any alternative construction access
easements shall be determined by the property owner and may be
41
relocated from time to time provided that each party is at all times provided
reasonable access over a temporary road for construction vehicles to their
respective construction sites. These temporary easements shall provide for
reciprocal indemnification as provided in Section 11.7 above. Upon completion of
construction, such temporary access easements shall terminate.
11.9 Permit Compliance. The parties acknowledge that the
-----------------
improvements to be constructed upon the Land are subject to certain conditions
and requirements contained in the Saint Johns DRI, Saint Johns PUD and Surface
Water Permits, as the same may be modified from time to time. Buyer shall
comply in all material respects with all applicable provisions of the Saint
Johns DRI, Saint Johns PUD and Surface Water Permits. SJH Partnership shall
comply with the provisions of the Saint Johns DRI, Saint Johns PUD, and Surface
Water Permits as to the lands owned by SJH Partnership; provided, however, this
provision shall not be construed to limit the right of SJH Partnership to effect
modifications of the Saint Johns DRI, Saint Johns PUD and Surface Water Permits,
as it shall determine in its sole discretion, so long as such modifications do
not materially and adversely affect the rights of Buyer under the terms of this
Agreement or the WGV Master Development Agreement, or the rights of Buyer to
construct or its cost to construct the Villas in accordance with the Plans and
Specifications.
11.10 Coordination. The parties acknowledge that construction efforts
------------
will be undertaken simultaneously by several parties by Buyer upon the Land and
by SJH Partnership and other parties upon other portions of the Saint Johns DRI.
Buyer and SJH Partnership agree that they will use all reasonable efforts to
coordinate construction activity so as to minimize interference with the work of
other parties during the course of construction. SJH Partnership and Buyer
agree to consult on a regular basis as to the timing of their respective
construction activities and as
42
related to the World Golf Village so as to allow for maximum coordination and
efficiency in the progress of each of their work. All contractors providing
construction services to the Land shall be required to comply with the
Construction Rules and Regulations attached hereto as an Exhibit.
11.11 Final Development Plan. Prior to submission of any Final
----------------------
Development Plan for the Villas (as defined in the St. Johns County Zoning Code)
to the County for approval, Buyer shall first obtain SJH Partnership's approval
of such Final Development Plan and any modifications thereto which shall be
granted so long as such Final Development Plan shall comply with all terms and
provisions of this Agreement.
11.12 Compliance with Drainage Plan. Upon completion of the
-----------------------------
improvements constructed upon the Land, Buyer shall cause all drainage areas
within the Land to be brought to the elevation shown for drainage improvements
as part of the Surface Water Permits. Buyer shall provide to SJH Partnership,
upon completion of construction of improvements on the Land, a certificate of
Bessent, Hammack & Ruckman, licensed civil engineers, certifying that all
improvements constructed upon the Land have been constructed in full compliance
with the Surface Water Permits, and in conformance with the Plans and
Specifications.
11.13 Approval of Contractor. SJH Partnership shall have the right to
----------------------
approve any general contractor (other than Buyer or an affiliate of Buyer acting
as its own general contractor) engaged by Buyer to construct the Villas, or
portions thereof. Provided such contractor shall have a high quality
reputation, shall have experience in the construction of residential
improvements of similar scope and quality as the Villas and shall be able to
secure the performance and payment bonds provided for in Section 11.14 below,
SJH Partnership shall approve the general contractor selected by Buyer.
43
11.14 Payment and Performance Bonds.
-----------------------------
11.14.1 Prior to commencement of construction of the Phase I
Units and related site work, the general contractor engaged by Buyer to
construct the Villas shall furnish to Buyer and the lender providing financing
for such improvements, good and sufficient Labor and Material Payment Bond and
Performance Bonds (collectively "Bonds"), in amounts which are not less than the
full cost of construction under the applicable general contract, sufficient to
ensure completion of the contractor's obligations under the applicable general
contract, which Bonds shall be maintained by contractor for the life of the
general contract, and evidence of such Bonds shall be provided to SJH
Partnership. If Buyer shall act as its own general contractor, Bonds shall be
required only for such subcontracts for construction which exceed an amount of
One Million Dollars ($1,000,000.00).
11.14.2 Prior to commencement of construction of any portion of
the Infrastructure Improvements, which contract for construction exceeds One
Million Dollars ($1,000,000.00), the general contractor engaged by SJH
Partnership to construct such portion of the Infrastructure Improvements shall
furnish to SJH Partnership and the lender providing financing for such portion
of the Infrastructure Improvements, Bonds in amounts which are not less than the
full cost of construction under the applicable general contract, in form and
content reasonably satisfactory to Buyer to ensure completion of the general
contractor's obligation under the applicable general contract, which Bonds shall
be maintained by the general contractor for the life of such general contract.
11.15 Plat of Access Road. Not later than ninety (90) days after the
-------------------
Closing Date, subject to Force Majeure, SJH Partnership shall, at its expense,
obtain an approved preliminary plat of the Access Road, or shall post such
performance security
44
with the County with respect to the Access Road as may be required by the County
as a condition to issuance of building permits for the Villas.
12. EASEMENTS AND RESTRICTIONS AFFECTING SJH PARTNERSHIP'S ADJACENT
---------------------------------------------------------------
PROPERTY AND THE PROPERTY AND POST-CLOSING MATTERS.
- --------------------------------------------------
12.1 Continuing Architectural Approvals. SJH Partnership and the
----------------------------------
Association formed pursuant to the Association Covenants for Saint Johns-
Northwest Commercial shall have a continuing right to approve the construction
of any improvements upon the Land which were not approved prior to Closing
pursuant to the terms hereof, as reserved by SJH Partnership under, and subject
to the terms of, the Special Warranty Deed and as provided for in the
Association Covenants described in Section 12.9 below.
12.2 Use Restrictions and DRI Allocation of Development Rights.
----------------------------------------------------------
Buyer shall use the Land solely for construction of the Villas, subject to the
height limitations set forth in the Development Criteria. At Closing, SJH
Partnership shall assign to Buyer, for the benefit of the Land, development
rights under the Saint Johns DRI for up to 440 resort condominium and/or
vacation ownership dwelling units in the multi-family category of development
under the Saint Johns DRI pursuant to an Assignment of Development Rights in
form and substance satisfactor to the parties.
12.3 Rental Program. Buyer agrees that upon completion of
--------------
construction of the Phase I Units, it shall institute and operate a first-class
nightly rental program with respect to the Phase I Units which shall be reserved
through a central reservations system administered by Buyer or its affiliates or
in conjunction with the central reservations system of the Hotel. This program
will be made available by Buyer at commercially reasonable rates and terms with
respect to (i) all Villas, when constructed, which have not been conveyed to
third party purchasers in the ordinary course of business and (ii) those third
party
45
purchasers who voluntarily elect to participate in such a rental program after
purchase. This obligation of Buyer shall constitute a covenant running with
title to the Land and shall continue until such time as the Conference Center
Bonds are paid in full but shall terminate automatically and without the
necessity of a release as to any Villa (or any interest therein) upon sale to a
third party purchaser in the ordinary course of business. For purposes of this
Section 12.3, sales to purchasers in the ordinary course of business shall
exclude sales of Villas in bulk or vacation intervals in bulk to a single
purchaser who holds such Villas or vacation intervals for resale.
12.4 Disclosure and Release. Buyer shall cause all purchasers of
----------------------
units to execute a disclosure and release agreement acknowledging construction
of the Villas by Buyer and releasing SJH Partnership from all liability in
connection with the Villas, or Buyer shall include such a disclosure and release
which specifically survives closing in every purchase agreement entered into
between Buyer and a Villa purchaser.
12.5 Purchaser's Warranty. Buyer shall provide third party
--------------------
purchasers of timeshare interests in the Villas with all statutory construction
warranties required by Chapter 721, Florida Statutes, and all third party
purchasers of resort condominiums with all statutory construction warranties
required by Chapter 718, Florida Statutes.
12.6 Property Owner's Association. After Closing, Buyer shall be
----------------------------
responsible for maintaining the Land including, without limitation, all land
lying between individual lots and Villa boundaries and the waters edge of any
lake, the improvements constructed on the Land, and all common facilities
located therein. To the extent that Buyer may create separate homeowner,
condominium or timeshare association(s) for the Land or any portion thereof,
Buyer may assign all or a portion of its maintenance obligation
46
hereunder to such association(s). The form of documents creating such
association(s) shall be subject to SJH Partnership's review and approval for
consistency with the Association Covenants, as defined in Section 12.9 below
prior to such documents being executed or recorded in the public records of St.
Johns County, Florida, which approval shall not be unreasonably withheld, denied
or delayed.
12.7 Easements Reserved by SJH Partnership. SJH Partnership shall
-------------------------------------
reserve certain easements over and upon the Land for the benefit of the
Interchange Northwest Parcel and other lands within the Saints Johns DRI as
follows, which will not materially impair the construction or use of the Villas:
12.7.1 Non-exclusive perpetual easements for drainage which
shall also provide for Buyer's right to drain the Land in and through the
drainage system constructed by SJH Partnership, as provided for in the Special
Warranty Deed.
12.7.2 Non-exclusive perpetual easements for the benefit of
SJH Partnership and/or utility companies designated by SJH Partnership to
service the Land and for the installation of sewer, water, telephone,
electricity and an exclusive perpetual easement for telecommunication
information services and CATV service, all as provided for in the Special
Warranty Deed.
12.8 Additional Covenants and Restrictions. The Land shall be
-------------------------------------
conveyed to Buyer subject to certain additional covenants and restrictions,
including, but not limited to (i) an exclusive perpetual easement for
construction and maintenance of a golf cart path for golf cart and pedestrian
access between portions of the World Golf Village Golf Course to be granted to
Scratch for the benefit of the World Golf Village Golf Course as shown on the
Site Plan, and (ii) a view corridor for the benefit of the Hall of Fame Parcel
restricting vertical development in the area as shown on the Site Plan and as
provided for in the Special Warranty Deed.
47
12.9 Association Covenants. Prior to Closing, the Land shall be
---------------------
subjected to Declaration of Covenants for two property owners' associations
("Association(s)") within the Saint Johns DRI (the "Association Covenants"), the
Declaration of Covenants and Restrictions for Saint Johns-Northwest Master,
attached hereto as an Exhibit, and the Declaration of Covenants and Restrictions
for Saint Johns-Northwest Commercial, attached hereto as an Exhibit.
12.10 Exclusive Rights as to Vacation Club, Timeshare or Interval
-----------------------------------------------------------
Ownership Sales. For a period of time beginning on the Closing Date, to the
- ---------------
first to occur of (i) fifteen (15) years from the Closing Date, (ii) the date
upon which improvements constructed upon the Land are no longer available for
sale or purchase as timeshare estates, timeshare licenses or vacation clubs, as
such terms are defined in Chapter 721, Florida Statutes, or (iii) one hundred
eighty (180) days from the required Completion Date of the Phase I Improvements,
if not so completed, subject to Force Majeure, SJH Partnership agrees that use
of the Interchange Tract (other than the Land, the Hall of Fame footprint parcel
as conveyed to the County by Special Warranty Deed recorded in Official Records
Book 1108, page 1418 of the public records of St. Johns County, Florida, and the
Utility Site as conveyed to the County by Special Warranty Deed recorded in
Official Records Book _____, page ____ of the public records of St. Johns
County, Florida) shall be restricted from development, operation or sale as
timeshare estates, timeshare licenses, or vacation clubs, as such terms are
defined in Chapter 721, Florida Statutes. This restriction shall be personal to
Buyer and its permitted assignees and enforceable only by Buyer and its
permitted assignees so long as Buyer or its permitted assignees own any portion
of Parcel One (including Villa vacation weeks within Parcel One) or manage any
timeshare plan on behalf of others which is situated on the Land. This
restriction shall be evidenced in the recorded Special Warranty Deed and shall
48
be a covenant running with title to the Interchange Tract (other than lands
conveyed to the County) and shall be subordinate to the existing mortgage liens
of Charles Wolfe and Barnett Bank of Jacksonville, N.A., in effect as of the
date hereof. For purposes of this Section 12.10, a "permitted assignee" shall
include Mortgagee and any entity which is under the direct management control of
Raymond L. Gellein, Jr. or Jeffrey A. Adler, individually or collectively.
13. SJH PARTNERSHIP'S RIGHT OF FIRST REFUSAL. SJH Partnership shall have
----------------------------------------
a continuing right of first refusal to purchase Parcel One (the "Right of First
Refusal") in the event offered for sale by Buyer in bulk in an undeveloped state
which shall be subordinate in form and Substance satisfactory to mortgagee to
the lien of the construction loan mortgage upon Parcel One or any refinancing
thereof. For purposes of this Section 13, a conveyance in bulk in an undeveloped
state shall mean any conveyance prior to the first to occur of (i) recordation
of a declaration of condominium or timeshare regime or (ii) commencement of
vertical construction of the Phase I Units. Within fifteen (15) days of Buyer's
receipt of an offer to purchase Parcel One acceptable to Buyer, Buyer shall
provide SJH Partnership with (i) written notice of the offer received by Buyer,
and (ii) a copy of the executed purchase and sale agreement setting forth the
terms upon which Parcel One will be sold by Buyer (collectively, the "Offer").
SJH Partnership shall have a period of fifteen (15) days from receipt of the
Offer within which to elect in writing to either purchase such parcel by
execution of a purchase and sale agreement on the terms stated in the Offer or
to reject the Offer. If SJH Partnership shall fail to either elect or reject the
Offer in writing within the said fifteen (15) day period, the Right of First
Refusal shall be deemed to have been rejected, and Buyer shall be entitled to
sell Parcel One on the terms set forth in the
49
Offer, free and clear of any rights of SJH Partnership set forth herein. Any
such rejection of the Right of First Refusal shall not constitute a permanent
waiver of the Right of First Refusal to the extent that the purchase is not
closed within the time period specified in the Offer or there occurs a material
change in the terms of the Offer. Further, the rejection shall apply only to
the particular sale of which SJH Partnership is given notice as provided herein.
The Right of First Refusal shall be continuing and applicable to Buyer and its
successors and assigns and shall run with the title to Parcel One and shall
expire automatically upon the earlier of the recording of a declaration of
condominium or timeshare regime for any portion of Parcel One or the recording
of a notice of commencement for vertical construction of the Phase I Units on
any portion of Parcel One. This Right of First Refusal shall be personal to SJH
Partnership and shall not be assignable.
14. REMEDIES FOR DEFAULT.
--------------------
14.1 Remedies of SJH Partnership. In the event that SJH Partnership
---------------------------
performs all obligations provided for in this Agreement and all conditions to
the performance of Buyer shall have been met or waived by Buyer, and (i) Buyer
fails to close this transaction in accordance with the terms hereof, or (ii) in
the event Buyer shall default in any obligations of Buyer under the terms of
this Agreement, SJH Partnership, at SJH Partnership's option, shall be entitled,
if such default occurs prior to Closing, to terminate this Agreement and to
retain the Deposit as agreed upon and liquidated damages for Buyer's default,
recognizing that actual damages are incapable of ascertainment, which shall be
the sole and exclusive remedy of SJH Partnership. Buyer and SJH Partnership
acknowledge that this constitutes a reasonable payment to SJH Partnership as a
result of Buyer's default and does not constitute a penalty. SJH Partnership
shall provide written notice of default
50
and a ten (10) day period to cure such default prior to termination, other than
a default for Buyer's failure to perform on the Closing Date.
14.2 Remedies of Buyer. In the event that Buyer performs all
-----------------
obligations provided for herein prior to Closing and SJH Partnership fails to
close this transaction as contemplated under the terms of this Agreement, then
in such event the Deposit shall be returned to Buyer and Buyer shall have the
remedy of specific performance.
14.3 Remedies Subsequent to Closing. The parties shall each have all
------------------------------
remedies provided at law and in equity as to defaults in each of their
obligations to be performed subsequent to Closing.
15. MISCELLANEOUS.
-------------
15.1 Notices. Any notice, demand, consent, authorization, request,
-------
approval or other communication (collectively, "Notice") that any party is
required, or may desire, to give to or make upon the other party pursuant to
this Agreement shall be effective and valid only if in writing, and delivered
personally to the other parties or sent by express 24-hour guaranteed courier or
delivery service, by facsimile transmission or by registered or certified mail
of the United States Postal Service, postage prepaid and return receipt
requested, addressed to the other parties as follows (or to such other place as
any party may by Notice to the others specify):
TO SJH PARTNERSHIP:
------------------
SJH Partnership, Ltd.
c/o SJ Memphis, Ltd.
3797 New Getwell Road
Memphis, TN 38118
Attention: Louis Baioni
cc: William H. Stubblefield, Esq.
51
WITH COPY TO:
------------
Davidson Development, Inc.
2395 International Golf Parkway
St. Augustine, FL 32095
Attention: James E. Davidson, Jr.
AND COPY TO:
-----------
M. Lynn Pappas, Esquire
Pappas Metcalf & Jenks P.A.
200 West Forsyth Street, Suite 1400
Jacksonville, FL 32202
TO BUYER:
--------
Vistana WGV, Ltd.
8801 Vistana Centre Drive
Orlando, FL 32821
Attention: Raymond L. Gellein, Jr., Chairman
WITH COPY TO:
------------
Susan Werth, Esquire
Senior Vice President-Law
Vistana Development, Ltd.
701 Brickell Avenue, Suite 2100
Miami, FL 33131
TO ESCROW AGENT:
---------------
M. Lynn Pappas, Esquire
Pappas Metcalf & Jenks, P.A.
200 West Forsyth Street, Suite 1400
Jacksonville, FL 32202
Notices shall be deemed given when received, except that if delivery is not
accepted, Notice shall be deemed given on the date of such non-acceptance.
15.2 Brokerage. SJH Partnership and Buyer represent to each other
---------
that neither has dealt with any broker, middleman or agent in connection with
this transaction other than SJH Realty, Inc. and Davidson Realty, Inc. SJH
Partnership shall be exclusively liable for any compensation owed to SJH Realty,
Inc. or Davidson Realty, Inc. SJH Partnership and Buyer agree to indemnify and
hold one another harmless from and against all liabilities and expenses in
connection with any claims for commission, compensation
52
or otherwise for the bringing about of this transaction or the consummation
thereof, which can be made against the other by any person, firm or corporation
as the result of any acts of the other party.
15.3 Condemnation.
------------
15.3.1 If at any time prior to Closing, any proceedings shall
be commenced or consummated for the taking of the Land or material part of the
Land for public or quasi-public use pursuant to the power of eminent domain,
either party may, by written Notice to the other within thirty (30) days of
notice of such taking, elect to terminate this Agreement and all parties shall
be relieved of all further obligations hereunder and any monies paid by Buyer
shall be returned to Buyer. Unless this Agreement is terminated as provided
above, it shall remain in full force and effect and SJH Partnership shall assign
and transfer to Buyer any interest in any awards made with respect to the Land.
If at any time prior to Closing, any proceedings shall be commenced or
consummated for the taking of an immaterial portion of the Land for public or
quasi-public use pursuant to the power of eminent domain, neither party shall
have the right to cancel this Agreement and it shall remain in full force and
effect. For purposes of this section, a material part of the Land shall be an
amount of land area which prohibits construction of the Villas.
15.3.2 If at any time subsequent to Closing, but prior to the
completion of construction of improvements upon the Land, any proceedings shall
be commenced or consummated for the taking of a material part of the Land for
public or quasi-public use pursuant to the power of eminent domain, Buyer shall
be entitled to effect such modifications to the approved Plans and
Specifications as may be necessary to conform the Villas to the limitations of
the Land as reconfigured subsequent to the effect of such taking.
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15.4 Attorneys' Fees. In the event of litigation arising pursuant to
---------------
the provisions of this Agreement, the prevailing party shall be entitled to
collect reasonable attorneys' fees from the non-prevailing party and costs and
expenses of such litigation, whether at the trial level or on appeal.
15.5 Effect of this Agreement. This Agreement constitutes the
------------------------
complete agreement between the parties with respect to its subject matter; and
all antecedent or contemporaneous negotiations, undertakings, representations,
warranties, inducements and obligations are merged into this Agreement and
superseded by its delivery, except as may be evidenced by separate written
agreement between the parties of even date and the Master Development Agreements
and other documents as referenced herein. Any express indemnities contained in
this Agreement survive the Closing as do the parties' covenants of further
assurances and obligations of the parties to be performed subsequent to the
Closing Date. No provision of this Agreement may be waived unless such waiver
is set forth in writing and signed by the party to be charged; and this
Agreement otherwise may be modified or amended only by a written instrument
signed by Buyer and SJH Partnership.
15.6 Indemnity re: Villa Sales. Buyer has agreed that, in connection
-------------------------
with the sale of any of the Villas, it will not incorporate representations or
give any inducements or assurances concerning tax consequences (unless required
by law) or investment potential of ownership or to what extent economic benefit
might be derived by the prospective purchaser due to ownership or resale of the
Villas which would make such sale or offer the sale of a security unless such
plan of sale including any registration or prospectus materials to be delivered
in connection therewith has been approved by SJH Partnership in writing. In
addition, Buyer has agreed that, in developing a plan of sale for the Villas, it
will at all times use its best efforts to conduct such plan of sale
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in material compliance with all laws, rules and regulations of all governmental
authorities having jurisdiction over such activities including, but not limited
to, compliance with the state and federal securities laws and laws of the State
of Florida governing sale of vacation ownership dwelling units and timeshare or
interval ownership programs. Upon Buyer's receipt of written notification from
SJH Partnership or any such governmental authority of any non-compliance, Buyer
shall have thirty (30) days in which to cure the non-compliance. At SJH
Partnership's request, prior to the commencement of any sales activity
pertaining to the Villas, Buyer shall provide to SJH Partnership an Indemnity
Agreement in form and content attached hereto as an Exhibit to this Agreement.
15.7 Assignment. Buyer acknowledges and agrees that Buyer's
----------
financial condition and business reputation constitute a significant inducement
for SJH Partnership's willingness to enter into this Agreement. As a result,
Buyer agrees that it will not convey, assign, encumber or otherwise transfer any
interest in its rights contained in this Agreement prior to Closing to any party
without SJH Partnership's prior written consent which may be granted or withheld
at SJH Partnership's sole discretion; provided, however, Buyer shall be
permitted to assign its rights under this Agreement to any entity which is under
the direct management control of Raymond L. Gellein, Jr. or Jeffrey A. Adler.
15.8 Interpretation. This Agreement shall be interpreted, construed,
--------------
applied and enforced according to the laws of the State of Florida. If all or
any portion of the provisions of this Agreement shall be declared invalid by
laws applicable thereto, such invalid portion shall be ineffective and
unenforceable without invalidating the remaining provisions of this Agreement.
All captions and headings appearing are for convenience
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only and shall not be considered in construing or giving effect to the
provisions hereof.
15.9 Time is of the Essence. Time is of the essence with respect to
----------------------
all provisions of this Agreement. If any date referenced herein falls on a
Saturday, Sunday or legal holiday, then such date automatically is extended to
the next business day.
15.10 Risk of Loss. All risk of loss to Parcel One prior to Closing
------------
shall be borne by SJH Partnership.
15.11 No Joint Venture or Partnership. This Agreement is not intended
-------------------------------
nor shall it be construed to create a joint venture or partnership between the
parties and neither party shall constitute the agent of the other for any
purpose.
15.12 No Third Party Beneficiaries. This contract constitutes an
----------------------------
agreement between SJH Partnership and Buyer as to all provisions contained
herein. Notwithstanding anything contained herein to the contrary, this
Agreement is not intended nor shall it be construed to create any rights or
remedies as to third parties, other than WGV as to the Guaranty Fee Note. No
party shall constitute a third party beneficiary to the terms of this Agreement,
except as contemplated in the Master Development Agreements.
15.13 Acceptance. In the event this Agreement is not executed by SJH
----------
Partnership or Buyer within five (5) days of the date first executed, this
Agreement shall thereafter be null and void and neither party shall have any
liability or obligation hereunder and the Deposit, if then held by Escrow Agent,
shall be returned to Buyer.
15.14 Press Releases. Prior to Closing, neither Buyer nor SJH
--------------
Partnership shall make any press releases or other media dissemination of
information relating to the transactions contemplated herein without the prior
approval of the other party, which shall not be unreasonably withheld.
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15.15 Drafting. This Agreement and all Exhibits hereto have been
--------
negotiated at arm's length by SJH Partnership and Buyer, and the parties
mutually agree that for the purpose of creating the terms of this Agreement, or
said Exhibits, neither party shall be deemed responsible for the drafting
thereof.
15.16 Recitals and Exhibits. All recitals set forth in the Preamble
---------------------
and all Exhibits referred to in this Agreement are incorporated herein by
reference and shall be deemed part of this Agreement for all purposes as if set
forth at length herein.
15.17 Counterparts. This Agreement may be executed by the parties
------------
hereto individually or in combination in one or more counterparts, each of which
shall be an original, and all of which shall constitute one and the same
instrument.
15.18 Estoppel Certificates. Upon the written request of any parties
---------------------
hereto, the other party shall execute and deliver a certificate certifying that
there are no known defaults on the part of any party to this Agreement or any
Exhibits hereto, or if there are such defaults specifying the particulars of
such default and certifying that there are no setoffs or defenses to the
enforcement of the terms of this Agreement, or if there are, specifying the
particulars of such setoffs or defenses which shall be binding upon the parties
executing such estoppel. Upon request of any institutional lender, SJH
Partnership agrees to provide to such lender a copy of any written notice of
default provided to Buyer under the terms of this Agreement at the address
provided for in such request.
15.19 Mortgagee Protections. If any rights of Buyer or SJH
---------------------
Partnership under the terms of this Agreement are at any time, or from time to
time, subject to one or more mortgages and the mortgagor advises the other party
hereto of the name and address of the mortgagee ("Mortgagee") of any such
mortgage (or any assignee thereof), together with instructions for notification,
then until
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such time as the other party receives notice that such mortgage has been
satisfied, the following provisions shall apply:
15.19.1 Any non-defaulting party, upon serving the mortgagor
with any notice of default pursuant to this Agreement or any other material
notice or demand under the provisions of or with respect to this Agreement or
any related documents, shall also serve a copy of such notice upon any Permitted
Mortgagee and no such notice or demand by such non-defaulting party under this
Agreement or related documents shall be deemed to have been duly given unless
and until a copy thereof has been so served upon each such Permitted Mortgagee.
Copies of notices shall be served upon the Permitted Mortgagee in accordance
with the notice instructions set forth herein.
15.19.2 The Permitted Mortgagee shall have the right to perform
any term, covenant, condition or agreement of this Agreement or the related
documents on the mortgagor's part to be performed.
15.19.3 The mortgagor may delegate irrevocably to any Permitted
Mortgagee the authority to exercise any or all of the mortgagor's rights
hereunder, but no such delegation shall be binding upon the other party hereto
unless and until the mortgagor or such Permitted Mortgagee shall deliver to the
other party a true copy of a written instrument affecting such delegation. Such
delegation of authority may be effected by the terms of the mortgage itself, in
which case service upon other parties of a copy of the mortgage, together with a
written notice specifying the provisions therein which delegate such authority
to such Permitted Mortgagee shall be sufficient to give the other party notice
of such delegation. The other party shall be entitled to rely on any written
instrument affecting such delegation. No such delegation hereunder shall
release the mortgagor from any of its rights or obligations hereunder.
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15.20 Jurisdiction. This Agreement and the rights of the parties
------------
hereunder shall be governed and construed in accordance with the laws of the
State of Florida. Any suit shall be brought within the Courts of the State of
Florida or within the Federal District Court for the State of Florida.
15.21 Limited Liability. No shareholder, director, officer, employee,
-----------------
trustee or agent of SJH Partnership or Buyer, except as may be expressly
provided in any other document executed in conjunction with this Agreement,
shall ever be personally liable for the performance of the obligations
hereunder.
15.22 Consents. Where consent or approval of SJH Partnership or Buyer
--------
is required under this Agreement, failure of the party entitled to give such
consent or approval to respond to a request for same within fifteen (15) days of
written request accompanied by all required information, shall constitute such
party's approval of such request.
IN WITNESS WHEREOF, the undersigned have set their hands and seals as of
the date first above written.
SJH PARTNERSHIP:
SJH PARTNERSHIP, LTD.,
a Florida limited partnership
By: SJ Memphis, Ltd., a Florida
limited partnership, its
general partner
By: St. Johns Harbour, Inc.,
a Florida corporation, its
general partner
By: /s/ Richard L. Fisher
------------------------------
Richard L. Fisher
Its: President
LSr. Vice
[CORPORATE SEAL]
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BUYER:
VISTANA WGV, LTD.,
a Florida limited partnership
By: Vistana WGV Holdings, Inc., its sole general
partner
By: /s/ Raymond Gellein, Jr
----------------------------
(Print Name) Raymond Gellein, Jr
--------------------
Its: Chairman
----------------------------
[CORPORATE SEAL]
ESCROW AGENT:
PAPPAS METCALF & JENKS, P.A.
By: /s/ M. Lynn Pappas
---------------------------
(Print Name) M. LYNN PAPPAS
------------------
Its: V. President
--------------------------
60