Exhibit 10.20
AFFILIATION AGREEMENT
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THIS AFFILIATION AGREEMENT (this "Agreement") is made and entered into as
of the 15th day of September, 1997, by and between PGA GOLF PROPERTIES, INC., a
Florida corporation, hereinafter referred to as "PGA"; and VISTANA, INC., a
Florida corporation, hereinafter referred to as "Vistana."
RECITALS
A. PGA and its Affiliates (as defined herein), among other things, engage
in (i) the promotion of the game of golf and (ii) the acquisition, development,
operation and management of golf courses, golf training programs and related
facilities and amenities ("PGA Golf Facilities").
B. Vistana and its Affiliates engage in the acquisition, development,
operation, management and sale of Vacation Resorts (as defined herein) under the
name "Vistana," under brand names owned by others, and under brand names used
jointly with others.
C. The parties desire to establish an affiliation ("Affiliation")
pursuant to which Vistana will have the exclusive right to acquire, develop,
manage, market and sell Vacation Resorts in the Territory (as defined herein)
under the PGA name, initials and logo.
D. Certain PGA Affiliates presently operate the PGA Golf Facilities
located in St. Lucie County consisting of two public golf courses at the
Reserve, one semi-private golf course at St. Lucie West, a proposed PGA learning
center at the Reserve and a proposed third golf course near the Reserve
(collectively, the "PGA St. Lucie Golf Facilities"). PGA Golf Development, Inc.
("PGD") and Vistana PSL, Inc. ("VSL") have entered into a Purchase and Sale
Agreement (the "Land Agreement") pursuant to which VSL will acquire certain real
property located adjacent to the PGA St. Lucie Golf Facilities at the Reserve
for the purpose of developing the first Vacation Resort pursuant to this
Affiliation.
E. Contemporaneously with the closing of the Land Agreement, PGD and VSL
will enter into a Marketing and Promotion Agreement and a Golf Course Access
Agreement (both as defined in the Land Agreement).
NOW, THEREFORE, IN CONSIDERATION OF the mutual agreements and undertakings
herein set forth and other valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, PGA and Vistana hereby agree as follows:
I. Defined Terms. The following terms shall have the meanings described
below:
"Affiliate": any entity controlling, controlled by or under common control
with such person or entity.
"Affiliation": as defined in Recital C.
"Claims": as defined in paragraph 13(a).
"Golf Course Access Agreement": as defined in Recital E.
"Initial Closing": as defined in paragraph 3.
"Initial Resort": the Vacation Resort to be developed by VSL on the St.
Lucie Property.
"Land Agreement": as defined in Recital D.
"Licensed VOI's: Vacation Ownership Interests at a PGA Vacation Resort.
"Marketing and Promotion Agreement": as defined in Recital E.
"PGA": as defined in the Preamble.
"PGA Golf Facilities": as defined in Recital A.
"PGA Indemnities": as defined in paragraph 13(b).
"PGA St. Lucie Golf Facilities": as defined in Recital D.
"PGA Vacation Club": shall mean an internal exchange opportunity which may
be created by Vistana among owners of Vacation Ownership Interests at the PGA
Vacation Resorts.
"PGD": as defined in Recital D.
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"Performance Criteria": shall mean those Performance Criteria listed on
Attachment II to the Marketing and Promotion Agreement.
"Related Agreements": the Land Agreement, the Marketing and Promotion
Agreement and the Golf Course Access Agreement.
"St. Lucie Property": the property to be acquired by VSL from PGD or
Callaway Land & Cattle Co. Limited Partnership pursuant to the Land Agreement.
"Term": as defined in paragraph 2.
"Territory": the United States, its Territories and Possessions.
"Vacation Ownership Interests" or "VOI's": vacation ownership interests,
interval ownership interests, timeshare estates, timeshare licenses, fractional
ownership, vacation club, right-to-use or any other form of vacation ownership
program.
"Vacation Resort": shall mean any resort property having Vacation Ownership
Interests.
"Vistana": as defined in the Preamble.
"Vistana Indemnities": as defined in paragraph 13(a).
"VSL": as defined in Recital D.
II. Term. The term (the "Term") of this Agreement shall commence on the
date hereof and shall terminate on the tenth anniversary of the date hereof;
provided, however, that if Vistana and PGA shall each have determined in its
reasonable judgment that the Performance Criteria have been satisfied, then
Vistana shall have the right to extend the term of this Agreement for an
additional period of up to ten (10) years by providing written notice of such
extension to PGA at least one hundred eighty (180) days prior to the end of the
initial term. The termination of this Agreement whether by lapse of time,
acceleration, mutual agreement or otherwise shall not terminate or otherwise
affect the Marketing and Promotion Agreement or Golf Course Access Agreement for
the Initial Resort or any other marketing and promotion agreement or golf course
access agreement entered into with respect to any other PGA Vacation Resort.
III. Initial Resort. The Initial Resort to be developed pursuant to this
Agreement shall be acquired and developed by VSL in accordance with the terms of
the Land Agreement. The name of the Initial Resort shall be the "PGA Vacation
Resort by Vistana" or such other name as Vistana shall determine and PGA shall
approve, which name may or may not include the name "Vistana" and may or may not
include a location identifier (such as "at the
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Reserve"). Contemporaneously with the initial acquisition of a portion of the
St. Lucie Property pursuant to the Land Agreement (the "Initial Closing"), PGD
and VSL will enter into the Marketing and Promotion Agreement and Golf Course
Access Agreement.
IV. Official Designation. Vistana (and any Affiliate of Vistana
designated by Vistana) is hereby designated as the exclusive vacation ownership
development company of the PGA and will have the right to identify itself as the
"Official Vacation Ownership Developer of the PGA." Vistana acknowledges that
the PGA and its Affiliates reserve the right to enter into "official" agreements
with other companies respecting goods and services in all categories other than
Vacation Resorts and Vacation Ownership Interests. PGA hereby grants to Vistana
the exclusive, indivisible and non-transferable right and license to utilize the
Trademarks (as defined in the Marketing and Promotion Agreement) within the
Territory (as defined in the Marketing and Promotion Agreement) in connection
with promoting Vistana's affiliation with the PGA and the PGA Vacation Club in
the Territory during the term of this Agreement. The terms and conditions of
Vistana's use of the Trademarks shall be identical the terms and conditions of
Section 2 of the Marketing and Promotion Agreement (other than the first
paragraph of such Section 2), including without limitation the indemnification
provisions of such Section 2.
V. Exclusivity. PGA hereby agrees that during the Term, Vistana shall
have the exclusive right to develop Vacation Resorts within St. Lucie County,
Florida using the PGA name, initials and logo. In addition, PGA hereby agrees
that during the Term, Vistana shall have the exclusive right to develop Vacation
Resorts and PGA Vacation Clubs within the Territory using the PGA name, initials
and logo, subject, however, to the provisions of Section 6 and Section 7 below
with respect to Vacation Resorts. PGA further agrees that neither PGA nor its
Affiliates will enter into any agreement with any person or entity selling,
marketing, developing, operating or managing a Vacation Resort (other than
Vistana, its Affiliates or an unrelated developer of a Proposed Project (as
defined below) in the event Vistana elects not to proceed with such Proposed
Project as provided in paragraph 6 below) which agreement would allow such
person or entity to offer or sell any Vacation Resort or any Vacation Ownership
Interests using the PGA "Mailing Lists" and/or the "Member Access" described in
the Marketing and Promotion Agreement. The foregoing restriction shall expire on
the earlier of (i) the fifth anniversary of the recordation of the first deed
for a Vacation Ownership Interest at the Initial Resort or (ii) on the date upon
which not less than 80% of the Vacation Ownership Interests at the Initial
Resort have been sold; provided however, that if any Proposed Project being
developed or to be developed by Vistana or its Affiliates under the terms of
this Agreement shall be pending at such time as the foregoing restriction would
otherwise expire, then the restriction shall continue in effect and expire on
the earlier of (x) the fifth anniversary of the recordation of the first deed
for a VOI at such pending Proposed Resort or (y) on the date upon which not less
than 80% of the Vacation Ownership Interests at such pending Proposed Resort
have been sold.
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VI. Right of First Offer. It is the intent of the parties that additional
PGA Vacation Resorts will be developed at other properties identified by PGA for
development by PGA or its Affiliates as PGA Golf Facilities. PGA hereby grants
to Vistana a right of first offer to be the developer of a Vacation Resort with
respect to any PGA Golf Facility hereafter developed, licensed or operated by
PGA or any PGA Affiliate. PGA shall provide written notice to Vistana of any
property or project (a "Proposed Project") under consideration for development,
licensure or operation by PGA or any PGA Affiliate within thirty (30) days after
the Proposed Project is identified. Such written notice shall include the
location of the Proposed Project, the type of PGA Golf Facility under
consideration and such other information as is available at that time. Each of
PGA and Vistana will undertake at their own expense such investigations of the
Proposed Project as each party determines is necessary or desirable in
evaluating the Proposed Project. If PGA shall determine that it does not intend
to pursue the Proposed Project, PGA shall give written notice of such
determination to Vistana whereupon Vistana shall be permitted, but not
obligated, to develop such Proposed Project in such manner as Vistana determines
appropriate for Vistana's own account and not as a PGA Vacation Resort. If
Vistana shall determine that it does not intend to pursue the Proposed Project,
Vistana shall give written notice of such determination to PGA whereupon PGA
shall be permitted, but not obligated, to develop, or cause to be developed,
such Proposed Project in such manner as PGA determines appropriate, including
any Vacation Ownership Interest component thereof; provided, however, that such
Vacation Ownership Interest component shall not be permitted to use the name
"Professional Golfers Association," "PGA" or any similar name or the PGA logo
except in connection with a location identifier (such as "Holiday Vacation
Ownership Resort at PGA Grand Development" or "Holiday Vacation Ownership Resort
at PGA Golf Course") for any Vacation Resort. If the parties both elect to
pursue the Proposed Project, then the parties, or the appropriate Affiliates
thereof, shall enter into agreements in form and substance similar to the Land
Agreement, Marketing and Promotion Agreement, Golf Course Access Agreement and
such other agreements as are entered into with respect to the Initial Resort,
with such adjustments as are reasonably necessary given the particular
circumstances of the Proposed Project. Any future PGA Vacation Resort shall
include in its name "PGA Vacation Resort by Vistana" unless otherwise agreed to
by both parties.
VII. Existing PGA Properties. Vistana's exclusive right to develop
Vacation Resorts as set forth Section 5, and right of first offer as set forth
in Section 6, shall not apply to development projects outside St. Lucie County,
Florida currently bearing the "PGA" name (for example, PGA National) or sites
adjacent to golf courses outside St. Lucie County, Florida, that are currently
owned or managed by PGA (for example, Valhalla in Louisville, Kentucky). With
respect to such PGA projects or sites adjacent to PGA golf courses, the PGA may
deal with other developers of Vacation Resorts; provided, however, such Vacation
Resort shall not be permitted to use the name "Professional Golfers
Association", "PGA" or any similar name or the PGA logo except in connection
with a location identifier for any Vacation Resort as described in Section 6
above.
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VIII. Additional Properties. Each of PGA and Vistana reserves the right to
identify potential properties for development or designation as PGA Vacation
Resorts (which may or may not be associated with a PGA Golf Facility). Such
properties shall be included only upon the mutual agreement of the parties
satisfactory to each party in its sole discretion. No provision of this
Agreement shall limit, prohibit or restrict in any manner Vistana or any
Affiliate thereof from conducting its business in any manner it determines in
its sole discretion to be necessary or advantageous to it, including, without
limitation, developing, marketing, managing, owning, operating or selling
Vacation Resorts other than the PGA Vacation Resorts.
IX. Exchange Rights. Vistana shall have the right, but not the
obligation, to include one or more of the PGA Vacation Resorts in a PGA Vacation
Club or other exchange program in combination with other PGA Vacation Resorts.
In addition, Vistana shall have the right, but not the obligation, to include
one or more of the PGA Vacation Resorts in a vacation club or other exchange
program in combination with other Vacation Resorts of comparable or superior
quality owned or operated by Vistana or any Vistana Affiliate, or to include
other Vacation Resorts of comparable or superior quality owned or operated by
Vistana or any Vistana Affiliate in the PGA Vacation Club, subject in both cases
above to the express written approval of the PGA. Any PGA Vacation Club shall
have the right to identify itself as the "PGA Vacation Club by Vistana."
X. No Joint Venture or Partnership. No covenant or provision of this
Agreement, the Land Agreement or any of the other agreements to be entered into
between Vistana, PGA and Affiliates thereof is intended, nor shall it be deemed
or construed, to create a partnership, joint venture, agency or common interest
in profits or income between PGA and Vistana or any Affiliates of either of
them.
XI. PGA's Representations and Warranties. PGA hereby makes the following
representations and warranties to Vistana, each of which shall be deemed
material:
A. PGA is a Florida corporation, is duly formed, validly existing and in
good standing under the laws of the jurisdiction in which it was
organized.
B. The entry into this Agreement, the execution and delivery of all
instruments and documents required to be executed and delivered under
the terms hereof, and the performance of all acts necessary and
appropriate for the full consummation of the transaction contemplated
hereunder are consistent with, and not in violation of, and will not
create any adverse condition under any contract, agreement, or
instrument to which PGA or any PGA Affiliate is a party, or any
judicial order or judgment of any nature under which PGA or any PGA
Affiliate is bound. In addition, PGA has taken or caused to be taken
all actions required to render this Agreement en forceable against PGA
in accordance with its terms.
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C. This Agreement is the legal, valid and binding obligation of PGA,
enforceable against PGA in accordance with its terms.
D. There are no actions, suits, proceedings, judgments or court orders or
decrees pending, or to the knowledge of PGA threatened, to which PGA
or any PGA Affiliate is a party or by which the property of PGA or any
PGA Affiliate is bound before or by any court or governmental agency,
which would reasonably be expected to prevent or hinder the
consummation of the transactions contemplated hereby.
XII. Vistana's Representations and Warranties.
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A. Vistana is a Florida corporation and is duly formed, validly existing
and in good standing under the laws of the State of Florida.
B. The entry into this Agreement, the execution and delivery of all
instruments and documents required to be executed and delivered under
the terms hereof, and the performance of all acts necessary and
appropriate for the full consummation of the transaction contemplated
hereunder are consistent with, and not in violation of, and will not
create any adverse condition under any contract, agreement, or
instrument to which Vistana or any Vistana Affiliate is a party, or
any judicial order or judgment of any nature under which Vistana or
any Vistana Affiliate is bound. In addition, Vistana has taken or
caused to be taken all actions required to render this Agreement
enforceable against Vistana in accordance with its terms.
C. This Agreement is the legal, valid and binding obligation of Vistana,
enforceable against Vistana in accordance with its terms.
D. There are no actions, suits, proceedings, judgments or court orders or
decrees pending, or to the knowledge of Vistana threatened, to which
Vistana or any Vistana Affiliate is a party or by which the property
of Vistana or any Vistana Affiliate is bound before or by any court or
governmental agency, which would reasonably be expected to prevent or
hinder the consummation of the transactions contemplated hereby.
XIII. Indemnification; Remedies on Default.
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A. PGA. PGA hereby indemnifies and holds harmless Vistana and its
partners and their respective officers, directors, employees,
representatives and Affiliates ("Vistana Indemnitees") against and in
respect of any costs, claims, moneys, expenses, liabilities or damages
including, without limitation, any and all
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reasonable attorneys' fees and all other legal expenses (each of the
foregoing, a "Claim") incurred or expended by Vistana Indemnitees that
arise from or in connection with any breach or inaccuracy of any
representation or warranty made by PGA hereunder or in connection with
any litigation, conflicts, disputes or alleged violations of any
contracts to which PGA is a party as of the date hereof.
B. Vistana. Vistana hereby indemnifies and holds harmless PGA and its
officers, directors, employees, representatives and Affiliates ("PGA
Indemnitees") against and in respect of any Claims incurred or
expended by PGA Indemnitees that arise from or in connection with any
breach or inaccuracy of any representation or warranty made by Vistana
hereunder or in connection with any litigation, conflicts, disputes or
alleged violations of any contracts to which Vistana is a party as of
the date hereof.
C. Remedies. In the event either party fails to perform its obligations
hereunder, the other party shall have all rights and remedies
available at law or in equity, including, where appropriate,
injunctive relief without bond or surety (including in the event of a
violation of the provisions of paragraph 15 hereof in which case the
parties acknowledge that monetary damages would be an inadequate
remedy).
D. Attorneys' Fees. In the event suit is brought to enforce or interpret
all or any portion of this Agreement or for any other relief permitted
hereunder, the party, if any, awarded costs in such suit shall be
entitled to recover, as an element of such costs, and not as damages,
reasonable attorneys' fees incurred in connection with such suit.
Without limiting the generality of the foregoing, attorneys' fees
shall be determined at the normal hourly rates charged by the person
doing the work, regardless of whether said fees bear a reasonable
relationship to the relief obtained. A party which is not entitled to
recover costs in any such suit shall not be entitled to recover its
attorneys' fees.
XIV. Assignment.
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A. General. PGA and Vistana understand and agree that, except as
otherwise specifically provided in Paragraph 14(b) herein, neither
party may, without the other party's prior written consent (which
consent may be withheld or denied in such party's sole discretion),
assign any right, title and interest in and to this Agreement at any
time to any party.
B. Related Entities. Notwithstanding the general prohibition in
Paragraph 14(a) herein, each party shall be entitled, without the
consent of the other, to assign
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all or part of its right, title and interest in and to this Agreement
to any Affiliate provided that such Affiliate (i) has the power and
authority to perform the assigning party's obligations under this
Agreement and (ii) assumes such obligations pursuant to a written
agreement delivered to the other party.
XV. Notices. Any notices, requests, or other communications required or
permitted to be given hereunder shall be in writing and shall be either (i)
delivered by hand, (ii) mailed by United States registered mail, return receipt
requested, postage prepaid, (iii) sent by a reputable, national overnight
delivery service (e.g., Federal Express, Airborne, etc.) or (iv) sent by
facsimile (with the original being sent by one of the other permitted means or
by regular United States mail) and addressed to each party at the applicable
address set forth herein. Any such notice, request, or other communication shall
be considered given or delivered, as the case may be, on the date of hand
delivery (if delivered by hand), on the third (3rd) day following deposit in the
United States mail (if sent by United States registered mail), on the next
business day following deposit with an overnight delivery service with
instructions to deliver on the next day or on the next business day (if sent by
overnight delivery service), or on the day sent by facsimile (if sent by
facsimile, provided the original is sent by one of the other permitted means as
provided herein in this Paragraph 15 or by regular United States mail). However,
the time period within which a response to any notice or request must be given,
if any, shall commence to run from the date of actual receipt of such notice,
request, or other communication by the addressee thereof. Rejection or other
refusal to accept or inability to deliver because of a changed address of which
no notice was given shall be deemed to be receipt of the notice, request, or
other communication. By giving at least ten (10) days prior written notice
thereof, any party hereto may, from time to time and at any time, change its
mailing address hereunder.
PGA: PGA
--- 100 Avenue of the Champions
Palm Beach Gardens, Florida 33418
Attention: Chief Executive Officer
Telephone:
Facsimile: (561) 624-7642
With a copy to: Gunster, Yoakley, Valdes-Fauli & Stewart, P.A.
-------------- Phillips Point - Suite 500 East
777 South Flagler Drive
West Palm Beach, Florida 33401-6194
Attention: Paul W.A. Courtnell, Esq.
Telephone: (561) 655-1980
Facsimile: (561) 655-5677
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Vistana: Vistana, Inc.
------- 8801 Vistana Centre Drive
Orlando, Florida 32821
Attention: Raymond L. Gellein, Jr.
Chairman; and
Susan Werth, Esq.
Senior Vice President and
General Counsel
Telephone: (407) 239-3009
Facsimile: (407) 239-3198
With a copy to: Barbara E. Overton, Esq.
-------------- Weil, Gotshal & Manges LLP
701 Brickell Avenue, Suite 2100
Miami, FL 33131
Telephone: (305) 577-3135
Facsimile: (305) 374-7159
XVI. Confidential Information. Each party hereby agrees that any
information provided at any time to such party by the other party in connection
with the negotiation, performance or enforcement of this Agreement which has not
been generally disclosed to the public (the "Confidential Information"),
including, without limitation, any information contained in proprietary software
systems, any management techniques, and any customer and database information
provided pursuant to any license agreement, shall be kept in confidence;
provided, however, that any of such information may be disclosed to a party's
employees, agents, attorneys, auditors, accountants, financial advisors, banks
or other financial sources that need to know such Confidential Information (it
being agreed that such representatives or persons will be informed by such party
of the confidential nature of such Confidential Information and directed to
treat such Confidential Information confidentially and that such party will be
responsible for any disclosures of Confidential Information by its
representatives). In the event that a party becomes legally compelled to
disclose any Confidential Information, such party shall provide the other party
with prompt prior written notice of such requirement so that the other party may
seek a protective order or other appropriate remedy unless such notice is
prohibited by law. In the event such protective order or other remedy is not
obtained, the party legally compelled to disclose such Confidential Information
agrees to disclose only that portion of the Confidential Information which, in
the opinion of such party's counsel, is legally required to be disclosed. The
parties acknowledge and agree that, notwithstanding the provisions of this
paragraph 16, the parties shall be entitled to disclose and use the Agreed
Description (as defined in paragraph 17 hereof) of the relationship of the
parties.
XVII. Publicity. Neither party shall issue or make, or allow any
Affiliate to issue or make, any press release or public announcement relating to
the subject matter of this
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Agreement without the prior approval of the other party; provided, however, that
any party or an Affiliate of any party may make any public disclosure it
believes in good faith is required by applicable law, any listing or trading
agreement concerning its publicly-traded securities or in connection with any
governmental filings (in which case the party which intends to issue such press
release or make such public announcement will advise the other party prior to
making the disclosure and provide the other party opportunity to comment upon
the release or announcement). In addition to the foregoing, the parties shall,
as soon as practicable after the date hereof, use their reasonable best efforts
to agree on one or more descriptions of the relationship of the parties
hereunder (an "Agreed Description"). During the Term hereof, the parties shall
be entitled to use the Agreed Description in all communications and
announcements in connection with the conduct of their respective businesses;
provided, however, if either party shall use an Agreed Description in a larger
context, including but not limited to advertising and promotion, the use of the
Agreed Description in such larger context shall require the approval of the
other party, which shall not be unreasonably withheld. The party to whom an
Agreed Description in a larger context is submitted shall use best efforts to
respond to the requesting party within 72 hours of receipt of the request.
XVIII. No Solicitation of Employees. PGA agrees that for a period
commencing on the date hereof and ending two years following the last day of the
Term, neither PGA nor its Affiliates shall, directly or indirectly, solicit for
employment or hire any person employed by Vistana or any of its Affiliates at a
position of Manager or higher, as such persons may be titled at any time during
the Term or as of the last day of the Term. Vistana agrees that for a period
commencing on the date hereof and ending two years following the last day of the
Term, neither Vistana nor its Affiliates shall, directly or indirectly, solicit
for employment or hire any person employed by PGA or any of its Affiliates at a
position of Manager or higher, as such persons may be titled at any time during
the Term or as of the last day of the Term.
XIX. Miscellaneous.
A. This Agreement, together with the Related Agreements, constitutes the
entire agreement between the parties hereto and thereto with respect
to the transaction contemplated herein and in the Related Agreements;
and it is understood and agreed that all undertakings, negotiations,
representations, promises, inducements and agreements heretofore had
between these parties are merged herein and in the Related
Agreements. This Agreement may not be changed orally, but only by an
agreement in writing signed by both Vistana and PGA; and no waiver of
any of the provisions in this Agreement shall be valid unless in
writing and signed by the party against whom such waiver is sought to
be enforced.
B. The provisions of this Agreement shall inure to the benefit of, and
shall be binding upon, the parties hereto and their respective heirs
and permitted successors and assigns, as may be applicable.
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C. If the final day of any period of time set out in any provision of
this Agreement, falls on a Saturday, Sunday or holiday recognized by
national banks in Florida, then in such case, such period shall be
deemed extended to the next day which is not a Saturday, Sunday or
holiday recognized by national banks in Florida ("Business Day").
D. No presumption shall be created in favor of or against PGA or Vistana
with respect to the interpretation of any term or provision of this
Agreement due to the fact that this Agreement was prepared by or on
behalf of one of said parties.
E. Words of any gender used in this Agreement shall be held and construed
to include any other gender, and words in the singular number shall be
held to include the plural and vice versa, unless the context requires
otherwise.
F. The captions used in connection with the paragraphs of this Agreement
are for reference and convenience only and shall not be deemed to
construe or limit the meaning of the language contained in this
Agreement or be used in interpreting the terms and provisions of this
Agreement.
G. This Agreement may be executed in two or more counterparts and shall
be deemed to have become effective when and only when one or more of
such counterparts shall have been signed by or on behalf of each of
the parties hereto (although it shall not be necessary that any single
counterpart be signed by or on behalf of each of the parties hereto,
and all such counterparts shall be deemed to constitute but one and
the same instrument), and shall have been delivered by each of the
parties to the other.
H. When anything is described or referred to in this Agreement in general
terms and one or more examples or components of what has been
described or referred to generally is associated with that description
(whether or not following the word "including"), the examples or
components shall be deemed illustrative only and shall not be
construed as limiting the generality of the description or reference
in any way.
I. If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws, such provision shall be
fully severable; this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised
a part of this Agreement; and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its
severance from this Agreement. Furthermore, in lieu of such illegal,
invalid or unenforceable provision, there shall be added automatically
as a part of this
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Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid or
enforceable.
J. This Agreement is intended to be performed in the State of Florida
shall be construed and enforced in accordance with the laws of said
State.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by persons duly empowered to bind the parties to perform their
respective obligations hereunder the day and year first above written.
"Vistana"
VISTANA, INC., a Florida corporation
By: /s/ Susan Werth
-------------------------------
Name: Susan Werth
Title: Senior Vice President - Law
"PGA"
PGA GOLF PROPERTIES, INC.,
a Florida corporation
By: /s/ Jim L. Awtrey
-------------------------------
Name: Jim L. Awtrey
Title: President/Chief Executive Officer
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