ASSET
PURCHASE AGREEMENT


 


 




	
  SELLER GROUP:

  	
   

  	
  GOLF TRUST OF AMERICA, INC.

  
	
   

  	
   

  	
  GOLF TRUST OF AMERICA, L.P.

  
	
   

  	
   

  	
  GTA-IB, LLC

  
	
   

  	
   

  	
  GTA-IB GOLF RESORT, LLC

  
	
   

  	
   

  	
  GTA-IB CONDOMINIUM, LLC

  
	
   

  	
   

  	
  GTA-IB MANAGEMENT, LLC

  
	
   

  	
   

  	
   

  
	
  BUYER GROUP:

  	
   

  	
  CMI FINANCIAL NETWORK, LLC

  
	
   

  	
   

  	
  NOMINEE, IF ANY

  
	
   

  	
   

  	
   

  
	
  DATED:

  	
   

  	
  OCTOBER 27,
  2005

  






 





















 


TABLE OF
CONTENTS


 


	
  Article;
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
  DEFINITIONS

  	
  2

  
	
  Section 1.01

  	
  Definitions

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
  PURCHASE
  AND SALE

  	
  16

  
	
  Section 2.01

  	
  Sale and Transfer of Assets

  	
  16

  
	
  Section 2.02

  	
  Retained Assets

  	
  20

  
	
  Section 2.03

  	
  Assumed Liabilities

  	
  21

  
	
  Section 2.04

  	
  Retained Liabilities

  	
  23

  
	
  Section 2.05

  	
  Purchase Price

  	
  25

  
	
  Section 2.06

  	
  Closing

  	
  26

  
	
  Section 2.07

  	
  Post-Closing Purchase Price Adjustment

  	
  27

  
	
  Section 2.08

  	
  Due Diligence

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  DEPOSIT

  	
  34

  
	
  Section 3.01

  	
  Deposit

  	
  34

  
	
  Section 3.02

  	
  Seller’s Escrow Amount

  	
  36

  
	
  Section 3.03

  	
  Escrow Agent

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  REPRESENTATIONS AND WARRANTIES OF SELLER
  AND PARENT

  	
  37

  
	
  Section 4.01

  	
  Corporate Existence and Power

  	
  38

  
	
  Section 4.02

  	
  Corporate Authorization

  	
  38

  
	
  Section 4.03

  	
  Governmental Authorizations

  	
  39

  
	
  Section 4.04

  	
  Noncontravention

  	
  39

  
	
  Section 4.05

  	
  Capitalization; Subsidiaries

  	
  39

  
	
  Section 4.06

  	
  Financial Statements

  	
  40

  
	
  Section 4.07

  	
  No Undisclosed Liabilities

  	
  40

  
	
  Section 4.08

  	
  Material Contracts

  	
  41

  
	
  Section 4.09

  	
  Litigation

  	
  41

  
	
  Section 4.10

  	
  Compliance with Laws, Court Orders and
  Permits

  	
  42

  
	
  Section 4.11

  	
  Real Property

  	
  42

  
	
  Section 4.12

  	
  Intellectual Property

  	
  44

  
	
  Section 4.13

  	
  Finders’ Fees

  	
  45

  
	
  Section 4.14

  	
  Employees

  	
  45

  
					



 


i





















 


	
  Section 4.15

  	
  Employee Benefit Plans

  	
  45

  
	
  Section 4.16

  	
  Environmental Matters

  	
  47

  
	
  Section 4.17

  	
  Labor Matters

  	
  48

  
	
  Section 4.18

  	
  Tax Matters

  	
  49

  
	
  Section 4.19

  	
  Accounts Receivable

  	
  50

  
	
  Section 4.20

  	
  Insurance

  	
  50

  
	
  Section 4.21

  	
  Transactions with Affiliates

  	
  50

  
	
  Section 4.22

  	
  Knowledge of Westin

  	
  51

  
	
  Section 4.23

  	
  Knowledge of Troon

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  REPRESENTATIONS AND WARRANTIES OF BUYER

  	
  51

  
	
  Section 5.01

  	
  Corporate Existence and Power

  	
  51

  
	
  Section 5.02

  	
  Corporate Authorization

  	
  51

  
	
  Section 5.03

  	
  Governmental Authorizations

  	
  52

  
	
  Section 5.04

  	
  Noncontravention

  	
  52

  
	
  Section 5.05

  	
  Financing

  	
  52

  
	
  Section 5.06

  	
  Finders’ Fees

  	
  52

  
	
  Section 5.07

  	
  No Undisclosed Liabilities

  	
  53

  
	
  Section 5.08

  	
  Litigation

  	
  53

  
	
  Section 5.09

  	
  Compliance with Laws, Court Orders and
  Permits

  	
  53

  
	
  Section 5.10

  	
  No Liability Under Confidential Information
  Memorandum

  	
  53

  
	
  Section 5.11

  	
  As-Is Sale; Release

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  COVENANTS OF SELLER AND PARENT

  	
  56

  
	
  Section 6.01

  	
  Conduct of the Business

  	
  56

  
	
  Section 6.02

  	
  Access to Information

  	
  57

  
	
  Section 6.03

  	
  Estoppel Certificates

  	
  58

  
	
  Section 6.04

  	
  Condo Association Approval

  	
  58

  
	
  Section 6.05

  	
  Approval of GTA Board of Directors

  	
  59

  
	
  Section 6.06

  	
  Disclosure Supplements

  	
  59

  
	
  Section 6.07

  	
  No Solicitation

  	
  59

  
	
  Section 6.08

  	
  Conduct of GTA, Seller, Parent, Holding
  Company, Condo Owner and Management Company

  	
  63

  
					



 


ii





















 


	
  Section 6.09

  	
  GTA Mortgage

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
  COVENANTS OF BUYER

  	
  63

  
	
  Section 7.01

  	
  Access

  	
  63

  
	
  Section 7.02

  	
  Plan of Liquidation

  	
  64

  
	
  Section 7.03

  	
  Conduct of Buyer

  	
  64

  
	
  Section 7.04

  	
  Notice of Changes in Original Deposit
  Amount

  	
  65

  
	
  Section 7.05

  	
  Guarantee

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
  COVENANTS OF BUYER, PARENT AND SELLER

  	
  65

  
	
  Section 8.01

  	
  Efforts and Actions to Cause the
  Transactions Contemplated by this Agreement to Occur

  	
  65

  
	
  Section 8.02

  	
  Notices of Certain Events

  	
  66

  
	
  Section 8.03

  	
  Transfer and Other Taxes

  	
  66

  
	
  Section 8.04

  	
  Escrow Fees

  	
  67

  
	
  Section 8.05

  	
  Further Assurances

  	
  67

  
	
  Section 8.06

  	
  Transfers Not Effected as of the Closing

  	
  67

  
	
  Section 8.07

  	
  Certain Post-Closing Assistance

  	
  68

  
	
  Section 8.08

  	
  Litigation Arising After the Execution Date

  	
  68

  
	
  Section 8.09

  	
  Nominee

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  EMPLOYEE BENEFITS MATTERS

  	
  68

  
	
  Section 9.01

  	
  Employee and Employee Benefit Matters

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  CONDITIONS TO CLOSING

  	
  70

  
	
  Section 10.01

  	
  Conditions to Obligations of Buyer and
  Seller

  	
  70

  
	
  Section 10.02

  	
  Conditions to Obligation of Buyer

  	
  70

  
	
  Section 10.03

  	
  Conditions to Obligation of Seller

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
  SURVIVAL; INDEMNIFICATION

  	
  74

  
	
  Section 11.01

  	
  Survival

  	
  74

  
	
  Section 11.02

  	
  Indemnification

  	
  74

  
	
  Section 11.03

  	
  Procedures

  	
  75

  
	
  Section 11.04

  	
  Additional Procedures

  	
  76

  
	
  Section 11.05

  	
  Calculation of Damages

  	
  76

  
	
  Section 11.06

  	
  Dispute Resolutions

  	
  76

  
					



 


iii





















 


	
  Section 11.07

  	
  Effect of Investigation

  	
  77

  
	
  Section 11.08

  	
  Tax Treatment of Indemnification Payments

  	
  77

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
  TERMINATION

  	
  77

  
	
  Section 12.01

  	
  Termination

  	
  77

  
	
  Section 12.02

  	
  General Effect of Termination

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
  MISCELLANEOUS

  	
  80

  
	
  Section 13.01

  	
  Casualty and Condemnation; Risk of Loss

  	
  80

  
	
  Section 13.02

  	
  Notices

  	
  82

  
	
  Section 13.03

  	
  Confidentiality

  	
  85

  
	
  Section 13.04

  	
  Amendments and Modifications

  	
  86

  
	
  Section 13.05

  	
  Expenses

  	
  86

  
	
  Section 13.06

  	
  Attorneys’ Fees

  	
  86

  
	
  Section 13.07

  	
  Successors and Assigns

  	
  86

  
	
  Section 13.08

  	
  Governing Law

  	
  86

  
	
  Section 13.09

  	
  Consent to Jurisdiction

  	
  86

  
	
  Section 13.10

  	
  WAIVER OF JURY TRIAL

  	
  87

  
	
  Section 13.11

  	
  Counterparts; Third Party Beneficiaries

  	
  87

  
	
  Section 13.12

  	
  Entire Agreement

  	
  87

  
	
  Section 13.13

  	
  Headings

  	
  87

  
	
  Section 13.14

  	
  Severability

  	
  87

  
	
  Section 13.15

  	
  Specific Performance

  	
  88

  
	
  Section 13.16

  	
  Extension; Waiver

  	
  88

  
				



 


	
  SCHEDULES

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULE 1.01(a)

  	
   

  	
  —

  	
   

  	
  Knowledge of Buyer

  	
   

  
	
  SCHEDULE 1.01(b)

  	
   

  	
  —

  	
   

  	
  Knowledge of Seller

  	
   

  
	
  SCHEDULE 1.01(c)

  	
   

  	
  —

  	
   

  	
  Knowledge of Parent

  	
   

  
	
  SCHEDULE 1.01(d)

  	
   

  	
  —

  	
   

  	
  Parcel F Description

  	
   

  
	
  SCHEDULE 1.01(e)

  	
   

  	
  —

  	
   

  	
  Permitted Liens

  	
   

  
	
  SCHEDULE 1.01(f)

  	
   

  	
  —

  	
   

  	
  Required Consents

  	
   

  
	
  SCHEDULE 1.01(g)

  	
   

  	
  —

  	
   

  	
  Total Current Assets

  	
   

  
	
  SCHEDULE 1.01(h)

  	
   

  	
  —

  	
   

  	
  Total Current Liabilities

  	
   

  
	
  SCHEDULE 2.01(b)

  	
   

  	
  —

  	
   

  	
  Contracts

  	
   

  



 


iv





















 


	
  SCHEDULE 2.01(c)

  	
   

  	
  —

  	
   

  	
  Licenses, Permits, Certificates of
  Occupancy and Rights Under Permits, Approvals, and Allocations Relating to
  the Real Property and the Operation thereof and Other Similar Documents

  	
   

  
	
  SCHEDULE 2.01(i)(1) 

  	
   

  	
  —

  	
   

  	
  Innisbrook Real Property and Condo Property

  	
   

  
	
  SCHEDULE 2.01(i)(2) 

  	
   

  	
  —

  	
   

  	
  Unit 115 in Building 28 of the Innisbrook
  Condominiums

  	
   

  
	
  SCHEDULE 2.01(j)

  	
   

  	
  —

  	
   

  	
  Parcel J-4

  	
   

  
	
  SCHEDULE 2.01(k)

  	
   

  	
  —

  	
   

  	
  Parcel Rights

  	
   

  
	
  SCHEDULE 2.01(l)

  	
   

  	
  —

  	
   

  	
  Pinellas County Rights

  	
   

  
	
  SCHEDULE 2.01(m)

  	
   

  	
  —

  	
   

  	
  Wall Springs Rights

  	
   

  
	
  SCHEDULE 2.01(o)

  	
   

  	
  —

  	
   

  	
  Tangible Personal Property

  	
   

  
	
  SCHEDULE 2.01(p)

  	
   

  	
  —

  	
   

  	
  Intangible Personal Property

  	
   

  
	
  SCHEDULE 2.02(f)

  	
   

  	
  —

  	
   

  	
  Furniture and Equipment in the Owner’s
  Office

  	
   

  
	
  SCHEDULE 2.02(g)

  	
   

  	
  —

  	
   

  	
  Retained Assets

  	
   

  
	
  SCHEDULE 2.03(q)

  	
   

  	
  —

  	
   

  	
  Assumed Liabilities

  	
   

  
	
  SCHEDULE 2.05(c)

  	
   

  	
  —

  	
   

  	
  Allocation of Consideration

  	
   

  
	
  SCHEDULE 2.08(c)

  	
   

  	
  —

  	
   

  	
  Due Diligence Materials

  	
   

  
	
  SCHEDULE 4.03

  	
   

  	
  —

  	
   

  	
  Seller Governmental Authorizations

  	
   

  
	
  SCHEDULE 4.04

  	
   

  	
  —

  	
   

  	
  Noncontravention

  	
   

  
	
  SCHEDULE 4.06

  	
   

  	
  —

  	
   

  	
  Seller Financial Statements

  	
   

  
	
  SCHEDULE 4.07

  	
   

  	
  —

  	
   

  	
  Seller Disclosed Liabilities

  	
   

  
	
  SCHEDULE 4.08

  	
   

  	
  —

  	
   

  	
  Material Contracts

  	
   

  
	
  SCHEDULE 4.09

  	
   

  	
  —

  	
   

  	
  Seller Litigation

  	
   

  
	
  SCHEDULE 4.10(a)

  	
   

  	
  —

  	
   

  	
  Compliance with Laws

  	
   

  
	
  SCHEDULE 4.10(b)

  	
   

  	
  —

  	
   

  	
  Permits

  	
   

  
	
  SCHEDULE 4.11(a)

  	
   

  	
  —

  	
   

  	
  Real Property

  	
   

  
	
  SCHEDULE 4.11(b)

  	
   

  	
  —

  	
   

  	
  Leases

  	
   

  
	
  SCHEDULE 4.11(c)

  	
   

  	
  —

  	
   

  	
  Assigned Interests Under Leases

  	
   

  
	
  SCHEDULE 4.11(e)

  	
   

  	
  —

  	
   

  	
  Written Notice from any Governmental
  Authority of any Proceedings in Eminent Domain

  	
   

  
	
  SCHEDULE 4.11(g)

  	
   

  	
  —

  	
   

  	
  Tax Reduction Proceedings

  	
   

  
	
  SCHEDULE 4.12(a)

  	
   

  	
  —

  	
   

  	
  Intellectual Property

  	
   

  
	
  SCHEDULE 4.12(b)

  	
   

  	
  —

  	
   

  	
  Proprietary Software

  	
   

  
	
  SCHEDULE 4.12(c)

  	
   

  	
  —

  	
   

  	
  License Agreements

  	
   

  
	
  SCHEDULE 4.14

  	
   

  	
  —

  	
   

  	
  Employees as of September 20, 2005

  	
   

  
	
  SCHEDULE 4.15(a)

  	
   

  	
  —

  	
   

  	
  Plans

  	
   

  
	
  SCHEDULE 4.15(i)

  	
   

  	
  —

  	
   

  	
  Severance Pay, Unemployment Compensation and Benefits

  	
   

  
	
  SCHEDULE 4.15(j)

  	
   

  	
  —

  	
   

  	
  Claims Related to Any Plan

  	
   

  



 


v





















 


	
  SCHEDULE 4.16

  	
   

  	
  —

  	
   

  	
  Environmental Matters

  	
   

  
	
  SCHEDULE 4.16(e)

  	
   

  	
  —

  	
   

  	
  Location of Hazardous Substances and
  Underground Storage Tanks

  	
   

  
	
  SCHEDULE 4.17

  	
   

  	
  —

  	
   

  	
  Labor Matters

  	
   

  
	
  SCHEDULE 4.18

  	
   

  	
  —

  	
   

  	
  Tax Matters

  	
   

  
	
  SCHEDULE 4.20

  	
   

  	
  —

  	
   

  	
  Insurance

  	
   

  
	
  SCHEDULE 5.03

  	
   

  	
  —

  	
   

  	
  Buyer Governmental Authorizations

  	
   

  
	
  SCHEDULE 5.07

  	
   

  	
  —

  	
   

  	
  Buyer Disclosed Liabilities

  	
   

  
	
  SCHEDULE 5.08

  	
   

  	
  —

  	
   

  	
  Buyer Litigation

  	
   

  
	
  SCHEDULE 9.01

  	
   

  	
  —

  	
   

  	
  Employees of Seller Not To Be Offered
  Employment by Buyer

  	
   

  
	
  SCHEDULE 10.02(i)

  	
   

  	
  —

  	
   

  	
  Buyer’s Required Consents

  	
   

  
	
  SCHEDULE 10.03(g)

  	
   

  	
  —

  	
   

  	
  Seller’s Required Consents

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT 1.01(a)

  	
   

  	
  —

  	
   

  	
  Troon Estoppel Certificate

  	
   

  
	
  EXHIBIT 1.01(b)

  	
   

  	
  —

  	
   

  	
  Westin Estoppel Certificate

  	
   

  
	
  EXHIBIT 6.01

  	
   

  	
  —

  	
   

  	
  Form of Innisbrook 2006 Rental Pool
  Annual Lease Agreement

  	
   

  
	
  EXHIBIT 7.04

  	
   

  	
  —

  	
   

  	
  Reliance Letter from CWYP

  	
   

  
	
  EXHIBIT 10.02(b)

  	
   

  	
  —

  	
   

  	
  Form of Officer’s Certificate of
  Seller and General Partner of Parent

  	
   

  
	
  EXHIBIT 10.02(c)

  	
   

  	
  —

  	
   

  	
  Form of Bill of Sale

  	
   

  
	
  EXHIBIT 10.02(d)

  	
   

  	
  —

  	
   

  	
  Form of Assignment and Assumption
  Agreements

  	
   

  
	
  EXHIBIT 10.02(e)

  	
   

  	
  —

  	
   

  	
  Form of Deeds

  	
   

  
	
  EXHIBIT 10.02(f)

  	
   

  	
  —

  	
   

  	
  Form of Lease Agreements

  	
   

  
	
  EXHIBIT 10.02(h)

  	
   

  	
  —

  	
   

  	
  Form of 1445 Certificate

  	
   

  
	
  EXHIBIT 10.03(b)

  	
   

  	
  —

  	
   

  	
  Form of Officer’s Certificate of Buyer
  and Buyer’s Guarantor

  	
   

  
	
  EXHIBIT 10.03(e)

  	
   

  	
  —

  	
   

  	
  Form of Release Agreements

  	
   

  



 


vi





















 


ASSET PURCHASE AGREEMENT


 


THIS ASSET
PURCHASE AGREEMENT (this “Agreement”) is
dated as of October 27, 2005 (the “Execution Date”),
by and among (i) Golf Trust of America, Inc., a Maryland corporation
(“GTA”), (ii) GTA-IB, LLC, a Florida
limited liability company (the “Seller”), (iii) Golf
Trust of America, L.P., a Delaware limited partnership and the indirect parent
of Seller (the “Parent”), (iv) GTA-IB Golf
Resort, LLC, a Florida limited liability company (the “Holding
Company”), (v) GTA-IB Condominium, LLC, a Florida limited
liability company (the “Condo Owner”), (vi) GTA-IB
Management, LLC, a Florida limited liability company (the “Management
Company”), (vii) CMI Financial Network, LLC, an Ohio limited
liability company, or Nominee (as permitted herein) (the “Buyer”),
and (viii) CMI Financial Network, LLC, an Ohio limited liability company,
as Buyer’s guarantor in the event Nominee enters this Agreement as permitted
herein (the “Buyer’s Guarantor”).


 


THE PARTIES
ENTER INTO THIS AGREEMENT on the basis of the following facts, intentions and
understandings:


 


A.                                   Buyer
and Seller (or in the case of the Condo Property (as defined herein), Condo
Owner, in the case of the GH Securities Stock Interests (as defined herein),
Holding Company, and in the case of the Employees (as defined herein),
Management Company) have approved, and deem it advisable to consummate the purchase
of the Acquired Assets (as defined herein) by Buyer, which purchase is to be
effected by the sale by Seller (or in the case of the Condo Property, Condo
Owner, in the case of the GH Securities Stock Interests, Holding Company, and
in the case of the Employees, Management Company) of all of the Acquired Assets
to Buyer, subject to all of the liabilities pertaining to the Acquired Assets,
and otherwise upon the terms and subject to the conditions set forth herein.


 


B.                                     Prior
to the Execution Date, Buyer deposited with Chernett Wasserman Yarger &
Pasternak, LLC, Buyer’s legal counsel (“CWYP”), cash in
the amount of Four Million Five Hundred Thousand Dollars ($4,500,000) (the “Original Deposit Amount”) as a deposit against the Purchase
Price (as defined herein), which deposit was acknowledged by Seller.  In the event that Buyer waives Buyer’s rights
or otherwise fails to terminate this Agreement pursuant to Section 2.08(f) hereof,
Buyer shall cause CWYP to deposit the Original Deposit Amount with Chicago
Title Insurance Company, located at 2701 Gateway Drive, Pompano Beach, Florida
(the “Escrow Agent”), no later than 5:00 p.m.
(Eastern time) on the last day of the Due Diligence Period (as defined
herein).  In the event that Buyer elects
the Extension (as defined herein) pursuant to Section 2.06 hereof,
on the Extension Date (as defined herein), Buyer shall deposit with Escrow
Agent cash in the amount of One Million Five Hundred Thousand Dollars
($1,500,000) (the “Additional Deposit Amount”)
and, if prior to the expiration of the Due Diligence Period, shall cause CWYP
to deposit the Original Deposit Amount with Escrow Agent.


 


NOW,
THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, and subject to the conditions set forth herein, the parties hereto
agree as follows:


 





















 


ARTICLE 1



DEFINITIONS


 


Section 1.01                            Definitions.


 


The following
terms, as used herein, have the following meanings (the use of the singular or
the plural herein is not exclusive and the tenses may be used interchangeably
as the context requires):


 


“Accounts Receivable” shall have the meaning set forth in Section 2.01(y)
of this Agreement.


 


“Acquired Assets” shall have the meaning set forth in Section 2.01
of this Agreement.


 


“Acquisition Agreement” shall have the meaning set forth in Section 6.07(b) of
this Agreement.


 


“Acquisition Proposal” shall have the meaning set forth in Section 6.07(a) of
this Agreement.


 


“Action” shall have the meaning set forth in Section 11.03(a) of
this Agreement.


 


“Additional Deposit Amount” shall have the meaning set forth
in Recital B of this Agreement.


 


“Adjustment Date” shall have the meaning set forth in Section 2.07(c) of
this Agreement.


 


“AEW” means AEW Targeted Securities Fund, L.P., a Delaware
limited partnership.


 


“Affiliate” means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under common
control with such Person.


 


“Agreement” shall have the meaning set forth in the Preamble
of this Agreement.


 


“Allocation” shall have the meaning set forth in Section 2.05(c) of
this Agreement.


 


“Applicable Period” shall have the meaning set forth in Section 6.07(a) of
this Agreement.


 


“Assignment and Assumption Agreements” shall have the meaning
set forth in Section 10.02(d) of this Agreement.


 


“Assignment, Consent, Subordination and Nondisturbance Agreement”
means that certain Assignment, Consent, Subordination and Nondisturbance
Agreement dated as of July 15, 2004, by and among Seller, Parent and
Westin.


 


2





















 


“Assumed Liabilities” shall have the meaning set forth in Section 2.03
of this Agreement.


 


“Auditor” means Grant Thornton LLP, as independent auditor.


 


“Automatic Hotel Charges Settlement” means the settlement
terms negotiated by Starwood and the Attorney General of the State of Florida,
regarding the imposition of automatic or mandatory guest charges, including
resort charges, and resolving plaintiffs’ claims in related private class
action lawsuits brought against Starwood.


 


“Bill of Sale” shall have the meaning set forth in Section 10.02(c) of
this Agreement.


 


“Business” means the business of operating the Resort, as
conducted by Seller, Westin and Troon pursuant to the Westin Management
Agreement and the Troon Management Agreement, respectively.


 


“Business Day” means any day other than a Saturday, Sunday or
a day on which banks in New York, New York are authorized or obligated by
applicable law or executive order to close or are otherwise generally closed.


 


“Buyer” shall have the meaning set forth in the Preamble of
this Agreement.


 


“Buyer Indemnified Claims” shall have the meaning set forth
in Section 11.02(b) of this Agreement.


 


“Buyer Parties” shall have the meaning set forth in Section 11.02(a) of
this Agreement.


 


“Buyer’s  Escrow Demand”
shall have the meaning set forth in Section 3.02(b) of this
Agreement.


 


“Buyer’s Guarantor” shall have the meaning set forth in the
Preamble of this Agreement.


 


“Casualty Loss” shall have the meaning set forth in Section 13.01(a) of
this Agreement.


 


“Change of Recommendation” shall have the meaning set forth
in Section 6.07(c) of this Agreement.


 


“CKT” shall have the meaning set forth in Section 2.01(k)
of this Agreement.


 


“Claims” means all claims within the meaning of such term in
11 U.S.C. Section 101(5) (provided that a right to an equitable
remedy is considered a claim whether or not the breach gives rise to a right to
payment), including, without limitation, causes of action, reclamation claims,
mortgages, pledges, restrictions, hypothecations, charges, indentures, loan
agreements, instruments, leases, licenses, options, rights of first refusal,
contracts, offsets, recoupment, rights of recovery, judgments, orders, claims
for reimbursement, contribution, indemnity or exoneration, and decrees of any
court or foreign or domestic governmental entity, interests, products
liability, fraud, fraudulent transfers, breach of fiduciary duty, alter-ego,
environmental, 


 


3





















 


successor
liability, tax and other liabilities and claims, including Tax claims, in each
case whether secured or unsecured, choate or inchoate, filed or unfiled,
scheduled or unscheduled, noticed or unnoticed, recorded or unrecorded, perfected
or unperfected, allowed or disallowed, contingent or non-contingent, liquidated
or unliquidated, matured or unmatured, material or immaterial, disputed or
undisputed, or known or unknown, whether arising prior to, on, or subsequent to
the Closing Date, whether imposed by agreement, understanding, law, equity or
otherwise.


 


“Closing” shall have the meaning set forth in Section 2.06
of this Agreement.


 


“Closing Date” means the date of the Closing.


 


“Closing Transfer Amount” shall have the meaning set forth in
Section 2.05(a) of this Agreement.


 


“Closing Date Working Capital” shall have the meaning set
forth in Section 2.07(c) of this Agreement.


 


“CMI” means CMI Financial Network, LLC, an Ohio limited
liability company.


 


“COBRA” shall have the meaning set forth in Section 9.01(d) of
this Agreement.


 


“Code” means the United States Internal Revenue Code of 1986,
as amended, and the rules and regulations promulgated thereunder.


 


“Condo Owner” shall have the meaning set forth in the
Preamble of this Agreement.


 


“Condo Property” shall have the meaning set forth in Section 2.01(i) of
this Agreement.


 


“Condo Property Purchase Price” shall have the meaning set
forth in Section 6.04 of this Agreement.


 


“Condominium Association” means Innisbrook Condominium
Association, Inc., a Florida corporation not for profit.


 


“Confidential Information Memorandum” means the confidential
information memorandum dated March 2005, provided to Buyer by Houlihan
Lokey.


 


“Confidentiality Agreement” means the letter agreement dated
as of September 12, 2005, between GTA and CMI Financial, LLC, binding upon
CMI and Nominee, if any, as of September 12, 2005 pursuant to Section 13.03
hereof.


 


“Contracts” shall have the meaning set forth in Section 2.01(b) of
this Agreement.


 


“CWYP” shall have the meaning set forth in Recital B
of this Agreement.


 


“Damages” shall have the meaning set forth in Section 2.08(b) of
this Agreement.


 


“Data Room” means the “Eagle Golf” workspace on
www.intralinks.com.


 


4





















 


“Declaration of Condominium” means that certain Declaration
of Condominium of Innisbrook Condominium No. 23, a Condominium dated as of
September 13, 1974, by Golf Host South, Inc.


 


“Deeds” shall have the meaning set forth in Section 10.02(e) of
this Agreement.


 


“Defense and Escrow Agreement” means that certain Defense and
Escrow Agreement dated as of July 15, 2004, by and among GHR, Seller,
Parent, GTA and Escrow Agent.


 


“Demand” shall have the meaning set forth in Section 3.01(c) of
this Agreement.


 


“Demanding Party” shall have the meaning set forth in Section 3.01(c) of
this Agreement.


 


“Deposit Amount” means a deposit against the Purchase Price
in the amount of Four Million Five Hundred Thousand Dollars ($4,500,000) in
cash; provided, however, that in the event Buyer elects the Extension, the
Additional Deposit Amount shall be included in the Deposit Amount and the
Deposit Amount shall total Six Million Dollars ($6,000,000) from, and
including, the Extension Date.


 


“Due Diligence Materials” shall have the meaning set forth in
Section 2.08(c)(i) of this Agreement.


 


“Due Diligence Period” shall have the meaning set forth in Section 2.08(a) of
this Agreement.


 


“Employees” means all active employees actively and solely
dedicated to the operations of the Business employed by Seller or any of its
Affiliates (but, for the avoidance of doubt, excluding any employees of Westin,
Troon or any of their Affiliates), including, without limitation, any such
employees on approved leaves of absence (whether vacation, family leave,
workers’ compensation, short-term disability, maternity leave or otherwise) and
the term “Employee” shall mean any of the
foregoing such Employees.


 


“Environmental Laws” means any and all federal, state, local
and foreign statutes, laws, regulations and rules, in each case as in effect on
the Execution Date or as subsequently amended, that have as their purpose the
protection of the environment or of human health or that relate to the
transportation, handling, storage, use or exposure to Hazardous Substances,
wastes or materials.


 


“Environmental Liabilities” means any Damages or obligations
arising out of the ownership or operation of the Business or the ownership or
operation of the Owned Real Property, to the extent based upon (i) a
material violation of or liability under any Environmental Law, (ii) a
failure to obtain, maintain or comply with any material Environmental Permit,
directive, order or notice of violation under, or any requirement of, any
material Environmental Law, (iii) a material Release of any Hazardous
Substance at, on or under any Owned Real Property, or any environmental
investigation, remediation, removal, clean-up or monitoring required under any
Environmental Law or required by a Governmental Authority at, on or under 


 


5





















 


any Owned Real
Property, or (iv) the use, generation, storage, transportation, treatment,
sale or other off-site disposal of Hazardous Substances generated by or
otherwise used in the Business.


 


“Environmental Permits” means all permits, licenses,
franchises, certificates, approvals and other similar authorizations of
Governmental Authorities required by any Environmental Law.


 


“Equipment” means all machinery, fixtures, furniture,
supplies, accessories, materials, equipment, parts, automobiles, trucks,
vehicles, golf carts, tooling, office equipment, furnishings and other similar
items of personal property owned or leased by Seller which are used in
connection with the Business.


 


“ERISA” means the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations promulgated thereunder.


 


“ERISA Affiliate” shall have the meaning set forth in Section 4.15(a) of
this Agreement.


 


“ERISA Plans” shall have the meaning set forth in Section 4.15(a) of
this Agreement.


 


“Escrow Agent” shall have the meaning set forth in Recital
B of this Agreement.


 


“Escrow Period” shall have the meaning set forth in Section 3.02(a) of
this Agreement.


 


“Estimated Closing Date Working Capital” shall have the
meaning set forth in Section 2.05(b) of this Agreement.


 


“Estimated Closing Date Working Capital Certificate” shall
have the meaning set forth in Section 2.05(b) of this
Agreement.


 


“Execution Date” shall have the meaning set forth in the
Preamble of this Agreement.


 


“Extension” shall have the meaning set forth in Section 2.06
of this Agreement.


 


“Extension Date” shall have the meaning set forth in Section 2.06
of this Agreement.


 


“Fairness Opinion” shall have the meaning set forth in Section 6.05
of this Agreement.


 


“Final Board Approval” shall have the meaning set forth in Section 6.05
of this Agreement.


 


“Final Working Capital” shall have the meaning set forth in Section 2.07(d)(v) of
this Agreement.


 


“GAAP” means the United States generally accepted accounting
principles.


 


“GH Securities” means Golf Host Securities, Inc., a
Florida corporation.


 


“GH Securities Stock Interests” shall have the meaning set
forth in Section 2.01(r) of this Agreement.


 


6





















 


“GHR” means Golf Host Resorts, LLC, a Colorado limited
liability company, formerly known as Golf Host Resorts, Inc., a Colorado
corporation.


 


“GHR Loan Agreement” means that certain Loan Agreement dated
as of June 20, 1997, by and between GHR and Parent, as amended from time to
time, including, without limitation, by amendment dated as of July 15,
2004, by and between Seller and Parent.


 


“Governmental Authority” means any national, federal,
regional, state, provincial, municipal, foreign or multinational court or other
governmental or regulatory authority, administrative body or government,
department, board, body, tribunal, instrumentality or commission of competent
jurisdiction respecting the Acquired Assets.


 


“GTA” shall have the meaning set forth in the Preamble of
this Agreement.


 


“GTA Mortgage” means that certain Mortgage, Security
Agreement and Fixture Filing with Assignment of Rents dated as of June 20,
1997, by and between GHR and Parent, as extended, amended, restated,
consolidated or modified from time to time and recorded in the land records of
Pinellas County, in Volume 9748 at Page 2292, and the related agreements,
as amended, contemplated thereby and/or entered in furtherance thereof,
including, without limitation, all corresponding promissory notes, deeds of
trust, and loan agreements and, more specifically: (i) the rights of both
the lender and the borrower under the GHR Loan Agreement, (ii) that
certain Security Agreement dated as of June 20, 1997, by and between GHR
and Parent, as extended, amended, restated, consolidated or modified from time
to time, and (iii) any other related documents recorded in the public
records of Pinellas County or Hillsborough County, Florida.


 


“GTA/Seller/Parent Indemnified Claims” shall have the meaning
set forth in Section 11.02(a) of this Agreement.


 


“Hazardous Substance” means any pollutant, contaminant or any
toxic, radioactive or otherwise hazardous substance, as such terms are
regulated by, defined in, or identified pursuant to, any Environmental Law, (i) excluding
petroleum and any petroleum products, chlorine, Freon, and any product related
to golf course agronomy and maintenance, landscaping care and customary food
preparation and (ii) including, without limitation, asbestos and
polychlorinated biphenyls.


 


“Historical Balance Sheet” shall have the meaning set forth
in Section 4.06 of this Agreement.


 


“Historical Financials” shall have the meaning set forth in Section 4.06
of this Agreement.


 


“Holding Company” shall have the meaning set forth in the
Preamble of this Agreement.


 


“Houlihan Lokey” means Houlihan Lokey Howard & Zukin
Capital, Inc.


 


“Improvements” shall have the meaning set forth in Section 2.01(n)
of this Agreement.


 


7





















 


“Indemnified Party” shall have the meaning set forth in Section 11.03(a) of
this Agreement.


 


“Indemnifying Party” shall have the meaning set forth in Section 11.03(a) of
this Agreement.


 


“Independent Accounting Firm” shall have the meaning set
forth in Section 2.07(d)(iii) of this Agreement.


 


“Initial Board Approval” shall have the meaning set forth in Section 6.05
of this Agreement.


 


“Initial Closing Date” shall have the meaning set forth in Section 2.06
of this Agreement.


 


“Innisbrook Condominium” means those certain condominiums
located at the Resort in Palm Harbor, Florida.


 


“Innisbrook Real Property” shall have the meaning set forth
in Section 2.01(i) of this Agreement.


 


“Intangible Personal Property” shall have the meaning set
forth in Section 2.01(p) of this Agreement.


 


“Intellectual Property” means any and all patents,
copyrights, trademarks, service marks, trade names, Internet domain names,
designs, logos, slogans, and general intangibles of like nature owned by
Seller, if any, together with any goodwill, registrations and applications
relating to the foregoing and owned by Seller, if any; computer programs owned
by Seller, if any, including any and all software implementations of
algorithms, models and methodologies whether in source code or object code
form, databases and compilations, if any, including any and all data and
collections of data, all documentation, including user manuals and training
materials, related to any of the foregoing and the content and information
contained on any Web site, if any (collectively, “Software”);
and confidential information, technology, know how, inventions, processes,
formulae, algorithms, models and methodologies (such confidential items,
collectively “Trade Secrets”), in each case as
owned by Seller and held for use by Seller with respect to the Business, or used
solely in the Business as currently conducted and any licenses to use any of
the foregoing, or any other similar type of intellectual property right owned
by Seller, if any.


 


“Knowledge of Buyer” or words of similar import means the
actual knowledge, without inquiry, of the individuals set forth in Schedule 1.01(a) attached
hereto.


 


“Knowledge of Seller” or words of similar import means the
actual knowledge, without inquiry, of the individuals set forth in Schedule 1.01(b) attached
hereto.


 


“Knowledge of Parent” or words of similar import means actual
knowledge, without inquiry, of the individuals set forth in Schedule 1.01(c) attached
hereto.


 


8





















 


“Land Plans and Specifications” shall have the meaning set forth
in Section 2.01(e) of this Agreement.


 


“Lease Assignments” shall have the meaning set forth in Section 10.02(f) of
this Agreement.


 


“Leased Real Property” shall have the meaning set forth in Section 4.11(b) of
this Agreement.


 


“Leases” shall have the meaning set forth in Section 4.11(b) of
this Agreement.


 


“Liabilities” means all debts, liabilities, claims, demands,
expenses, commitments and obligations (whether accrued or not, known or
unknown, disclosed or undisclosed, fixed or contingent, asserted or unasserted,
liquidated or unliquidated), whether arising prior to, at or after the Closing.


 


“License Agreements” shall have the meaning set forth in Section 4.12(c) of
this Agreement.


 


“Lien” means, with respect to any of the Acquired Assets, any
mortgage, lien, pledge, charge, security interest, encumbrance, hypothecation,
claim, lease, sublease, license, occupancy agreement, adverse interest,
easement, encroachment, title defect, title retention agreement, voting trust
agreement, option, right of first refusal or other restriction or limitation of
any nature whatsoever in respect of such Acquired Asset.


 


“Management Company” shall have the meaning set forth in the
Preamble of this Agreement.


 


“Material Adverse Effect” means any change, effect, event, violation,
inaccuracy, circumstance, occurrence, state of facts or development that in the
aggregate, when taken together with all other charges, effects, events,
inaccuracies, occurrences, state of facts or developments occurring or existing
at or about the same time, is or is reasonably likely to be materially adverse
to (i) the Business or the Acquired Assets, (ii) the ability of any
of GTA, Seller, Parent, Holding Company, Condo Owner or Management Company to
perform any of their respective obligations pursuant to this Agreement, or (iii) prevent
or materially delay the ability of any of GTA, Seller, Parent, Holding Company,
Condo Owner or Management Company to consummate the transactions contemplated
by this Agreement; provided, however, that none of the following shall be taken
into account in determining whether there has been or will be a Material
Adverse Effect: (A) changes affecting the United States economy (which
changes or developments, in each case, do not disproportionately affect the
Business in any material respect), (B) changes or developments in the
industries in which the Business participates, including without limitation,
the resort or golf business (which changes or developments, in each case, do
not disproportionately affect the Business in any material respect), (C) changes
in any zoning laws or decisions of any zoning authority affecting the Business,
excepting only as may actually result in a material adverse change in the
number of residential units approved for development on the Innisbrook Real
Property pursuant to that certain letter received on January 15, 1998, by
King Engineering from the Pinellas County Board of County Commissioners,
Development Review Services Department, Pinellas County, (D) 


 


9





















 


changes in the
weather and adverse atmospheric conditions, (E) changes resulting from
political instability, acts of terrorism or war, (F) changes resulting
from or arising out of the announcement of this Agreement or actions pursuant
to (and required by) this Agreement, (G) any failure, in and of itself, by
the Business to meet any internal or published projections, forecasts or
revenue or earnings or bookings predictions for any period ending on or after
the Execution Date (it being understood that the facts or occurrences giving
rise to or contributing to such failure may be taken into account in
determining whether there has been or will be a Material Adverse Effect), or (H) any
termination by Westin of the Westin Management Agreement or any termination by
Troon of the Troon Management Agreement.


 


“Material Contracts” means those Contracts which involve
payment or receipt by Seller or any of its Affiliates of amounts in excess of
Five Hundred Thousand Dollars ($500,000) per annum or other Contracts that have
a material impact on the Business.


 


“NASD” means the National Association of Securities Dealers, Inc.


 


“Net Working Capital” shall have the meaning set forth in Section 2.07(a) of
this Agreement.


 


“Nominee” means a controlled Subsidiary of CMI, (i) created
for the single purpose of consummating the purchase of the Acquired Assets and
the assumption of the Assumed Liabilities pursuant to this Agreement, (ii) owned
by CMI, certain controlled Affiliates of CMI and/or certain principals of CMI,
and (iii) controlled by CMI, certain controlled Affiliates of CMI and/or
certain principals of CMI.  For purposes
of this Agreement, no Person shall become the Nominee unless and until such
Person executes an assignment and assumption agreement by and among CMI,
Nominee, GTA, Seller, Parent, Holding Company, Condo Owner and Management
Company, and agreed as to Article 3 hereof by Escrow Agent, in a form
approved by Seller whereby Nominee assumes all of the obligations of Buyer
under this Agreement and Buyer and Nominee shall be jointly and severally
liable to Seller and its Affiliates under this Agreement.


 


“Non-Material” shall have the meaning set forth in Section 13.01(c) of
this Agreement.


 


“Objection Notice” shall have the meaning set forth in Section 2.07(d)(i) of
this Agreement.


 


“Operational Benefits Agreement” means that certain
Operational Benefits Agreement dated as of July 15, 2004, by and among
GHR, Golf Hosts, Inc., a Florida corporation, Seller and Parent.


 


“Original Deposit Amount” shall have the meaning set forth in
Recital B of this Agreement.


 


“Owned Real Property” shall have the meaning set forth in Section 4.11(a) of
this Agreement.


 


“Parcel F” means the parcel of real property more
particularly described in Schedule 1.01(d) attached hereto.


 


10





















 


“Parcel F Development Agreement” means that certain Parcel F
Development Agreement dated as of March 29, 2004, by and among GHR, Parent
and Innisbrook F, LLC (formerly known as Bayfair Innisbrook, L.L.C.), as
amended from time to time, including, without limitation, by amendments dated
as of March 11, 2005 and August 10, 2005.


 


“Parcel F Memorandum of Agreement” means that certain Parcel
F Memorandum of Agreement dated as of July 15, 2004, by and between GHR,
Parent, Seller and GTA.


 


“Parcel J-4” shall have the meaning set forth in Section 2.01(j)
of this Agreement.


 


“Parcel J-4 Lease” shall have the meaning set forth in Section 2.01(j)
of this Agreement.


 


“Parcels J-1 and J-2” shall have the meaning set forth in Section 2.01(k)
of this Agreement.


 


“Parcel K” shall have the meaning set forth in Section 2.01(k)
of this Agreement.


 


“Parcel Rights” shall have the meaning set forth in Section 2.01(k)
of this Agreement.


 


“Parent” shall have the meaning set forth in the Preamble of
this Agreement.


 


“PBGC” shall have the meaning set forth in Section 4.15(c) of
this Agreement.


 


“Permits” means licenses, permits, approvals, registrations,
waivers, exemptions, consents, authorizations, qualifications under or from any
federal, state, local or foreign laws or Governmental Authorities pertaining to
the Business or the Real Property.


 


“Permitted Liens” means (i) Liens set forth in Schedule 1.01(e) attached
hereto, (ii) mechanic’s, laborer’s, materialmen’s, repairmen’s and other
similar liens not yet due and payable or being contested in good faith, in each
case, to the extent that adequate reserves have been made on the Unaudited
Balance Sheet in accordance with GAAP, (iii) Liens relating to any
financing or leasing arrangement relating to any Intangible Personal Property
or Tangible Personal Property transferred to Buyer pursuant to Section 2.01
hereof, (iv) imperfections of title, easements and zoning restrictions, if
any, which, individually or in the aggregate with other such matters, do not
materially detract from the value or marketability of the property subject
thereto or interfere with the uses and purposes to which such property is
currently employed or materially impair the operations of Seller or Parent and
which have arisen only in the ordinary course of business and are generally
consistent with past practice, (v) Liens pursuant to the Assignment,
Consent, Subordination and Nondisturbance Agreement, and (vi) all
Permitted Title Exceptions.


 


“Permitted Title Exceptions” shall have the meaning set forth
in Section 2.08(e)(i) of this Agreement.


 


“Person” means an individual, corporation, partnership,
limited liability company, association, trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.


 


11





















 


“Phase I Environmental Site Assessments” means Phase I
environmental reports of the Owned Real Property prepared by a certified
environmental testing company.


 


“Phase II Environmental Site Assessments” means Phase II
environmental reports of the Owned Real Property prepared by a certified
environmental testing company.


 


“Pinellas County Land” shall have the meaning set forth in Section 2.01(l)
of this Agreement.


 


“Pinellas County Rights” shall have the meaning set forth in Section 2.01(l)
of this Agreement.


 


“Plan of Liquidation” means GTA’s liquidation plan, as
described in the proxy statement on Schedule 14A filed on March 14,
2001, by GTA with the Securities and Exchange Commission, as amended.


 


“Plans” shall have the meaning set forth in Section 4.15(a) of
this Agreement.


 


“Pre-Closing Environmental Liabilities” means any
Environmental Liabilities to the extent arising out of the ownership, operation
or condition of any of the Business or the Real Property on or at any time
prior to the Closing Date.


 


“Property Information” shall have the meaning set forth in Section 2.08(c)(ii) of
this Agreement.


 


“Proposed Allocation” shall have the meaning set forth in Section 2.05(c) of
this Agreement.


 


“Proprietary Software” shall have the meaning set forth in Section 4.12(b) of
this Agreement.


 


“Purchase Price” shall have the meaning set forth in Section 2.05(a) of
this Agreement.


 


“Real Property” means the Owned Real Property and the Leased
Real Property.


 


“Release” means the presence of or any release, spill,
emission, leaking, pumping, pouring, dumping, emptying, injection, deposit,
disposal, discharge, dispersal, leaching or migration of Hazardous Substances
not permitted by prevailing and applicable Environmental Laws or Environmental
Permits, in or into air, soil, water or groundwater at the Owned Real Property.


 


“Release Agreements” shall have the meaning set forth in Section 10.03(e) of
this Agreement.


 


“Rental Pool Agreement” means that certain Amended and
Restated Innisbrook Rental Pool Master Lease Agreement dated as of January 1,
2004, by and among certain lessors and GHR, as lessee (as assigned to Seller as
of July 15, 2004), including, without limitation, that certain Amended and
Restated First Addendum dated as of January 1, 2004, and as 


 


12





















 


supplemented,
without limitation, by the Innisbrook 2005 Rental Pool Annual Lease Agreement
effective as of October 15, 2004, by and among Seller and certain lessors,
and the Innisbrook 2006 Rental Pool Annual Lease Agreement effective as of October 1,
2005, by and among Seller and certain lessors.


 


“Required Consents” means consents related to Material
Contracts, including, without limitation, those set forth in Schedule 1.01(f).


 


“Resort” means the Westin Innisbrook Golf Resort located at
36750 U.S. Highway 19N, Palm Harbor, Florida.


 


“Retained Assets” shall have the meaning set forth in Section 2.02
of this Agreement.


 


“Retained Liabilities” shall have the meaning set forth in Section 2.04
of this Agreement.


 


“Scope of Work” shall have the meaning set forth in Section 2.08(a) of
this Agreement.


 


“Seller” shall have the meaning set forth in the Preamble of
this Agreement.


 


“Seller Parties” shall have the meaning set forth in Section 2.08(b) of
this Agreement.


 


“Seller Released Parties” shall have the meaning set forth in
Section 5.11(b) of this Agreement.


 


“Seller’s Escrow Amount” shall have the meaning set forth in Section 2.05(a) of
this Agreement.


 


“Separate Condo Closing” shall have the meaning set forth in Section 6.04
of this Agreement.


 


“Software” shall have the meaning set forth in the definition
of “Intellectual Property” in this Section 1.01.


 


“Starwood” means Starwood Hotels & Resorts Worldwide, Inc.


 


“Statement of the Closing Date Working Capital” shall have
the meaning set forth in Section 2.07(c) of this Agreement.


 


“Subsidiary,” or, in the plural, “Subsidiaries,”
means, with respect to any Person, any corporation, limited liability company
or other organization, whether incorporated or unincorporated, of which (a) fifty
percent (50%) or more of the securities or other interests having by their
terms ordinary voting power to elect a majority of the board of directors or
others performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such Person or by
any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries,
or (b) such Person or any other Subsidiary of such Person is a general
partner, excluding any such partnership where such Person or any 


 


13





















 


Subsidiary of
such party does not have fifty percent (50%) or more of the voting interests in
such partnership.


 


“Superior Proposal” shall have the meaning set forth in Section 6.07(c) of
this Agreement.


 


“Survey” shall have the meaning set forth in Section 2.08(d) of
this Agreement.


 


“Taking” shall have the meaning set forth in Section 13.01(b) of
this Agreement.


 


“Tangible Personal Property” shall have the meaning set forth
in Section 2.01(o) of this Agreement.


 


“Target Working Capital” shall have the meaning set forth in Section 2.07(b) of
this Agreement.


 


“Tax” means any tax, duty, fee, assessment or similar charge
of any nature whatsoever imposed by any government or taxing authority,
domestic or foreign, including, without limitation, any gross or net income,
gross or net receipts, minimum, sales, use, ad valorem, value added, stamp,
transfer, franchise, withholding, payroll, employment, excise, occupation,
premium or property tax, together with any interest, penalty, addition to tax
or additional amount imposed with respect thereto.


 


“Tax Returns” means all United States federal, state, local
and foreign returns, declarations, statements, reports, schedules, forms and
information returns relating to Taxes, including any amendments thereof.


 


“Termination Date” shall have the meaning set forth in Section 2.06
of this Agreement.


 


“Termination Fee” shall have the meaning set forth in Section 12.02(b) of
this Agreement.


 


“Third Party Action” shall have the meaning set forth in Section 11.03(b) of
this Agreement.


 


“Title Commitment” means both (i) that certain Chicago
Title Insurance Company ALTA Commitment (Number 300507607) dated as of June 1,
2005, and (ii) that certain Chicago Title Insurance Company ALTA
Commitment (Number 300507605) dated as of June 1, 2005.


 


“Title Company” shall have the meaning set forth in Section 10.02(g) of
this Agreement.


 


“Title Insurance Policies” shall have the meaning set forth
in Section 10.02(g) of this Agreement.


 


“Title Objection Notice” shall have the meaning set forth in Section 2.08(e)(i) of
this Agreement.


 


“Title Policy” shall have the meaning set forth in Section 10.02(g) of
this Agreement.


 


14





















 


“Title Report” shall have the meaning set forth in Section 2.08(d) of
this Agreement.


 


“Total Current Assets” shall have the meaning set forth in Schedule 1.01(g) attached
hereto.


 


“Total Current Liabilities” shall have the meaning set forth
in Schedule 1.01(h) attached hereto.


 


“Trade Secrets” shall have the meaning set forth in the
definition of “Intellectual Property” in this Section 1.01.


 


“Transferred Employees” shall have the meaning set forth in Section 9.01(a) of
this Agreement.


 


“Troon” means Troon Golf L.L.C., a Delaware limited liability
company.


 


“Troon Estoppel Certificate” means that certain estoppel
certificate contemplated to be executed and delivered by Troon pursuant to Section 14.02
of the Troon Management Agreement, in the form of Exhibit 1.01(a) attached
hereto.


 


“Troon Institute Lease Agreement” means that certain Lease
Agreement dated as of July 15, 2004, by and between Seller and GHR.


 


“Troon Management Agreement” means that certain Facility
Management Agreement for the Resort dated as of July 15, 2004, by and
among Troon, Westin and Seller.


 


“Unaudited Balance Sheet” shall have the meaning set forth in
Section 4.06 of this Agreement.


 


“Unaudited Income Statement” shall have the meaning set forth
in Section 4.06 of this Agreement.


 


“Unrestricted Cash” means all cash and cash equivalents of
Seller, any of its Affiliates or the Business with the exception of the house
bank cash and the cash held in escrow for the Condo Property.


 


“Wall Springs Land” shall have the meaning set forth in Section 2.01(m)
of this Agreement.


 


“Wall Springs Rights” shall have the meaning set forth in Section 2.01(m)
of this Agreement.


 


“WARN” shall have the meaning set forth in Section 4.17(b) of
this Agreement.


 


“Warranties and Guarantees” shall have the meaning set forth
in Section 2.01(f) of this Agreement.


 


“Westin” means Westin Management Company South, a Delaware
corporation.


 


15





















 


“Westin Estoppel Certificate” means that certain estoppel
certificate contemplated to be executed and delivered by Westin pursuant to Section 6.3
of the Westin Management Agreement, in the form of Exhibit 1.01(b) attached
hereto.


 


“Westin Management Agreement” means that certain Management
Agreement dated as of July 15, 2004, by and between Westin and Seller.


 


ARTICLE 2



PURCHASE AND SALE


 


Section 2.01                            Sale
and Transfer of Assets.


 


Upon the terms
and subject to the conditions of this Agreement, Seller (or, in the case of the
Condo Property, Condo Owner, in the case of the GH Securities Stock Interests,
Holding Company, and in the case of the Employees, Management Company) agrees
to sell, convey, assign, transfer and deliver to Buyer, and Buyer shall
purchase, acquire and accept from Seller (or, in the case of the Condo
Property, Condo Owner, in the case of the GH Securities Stock Interests,
Holding Company, and in the case of the Employees, Management Company), all of
Seller’s (or, in the case of the Condo Property, Condo Owner’s, in the case of
the GH Securities Stock Interests, Holding Company’s, and in the case of the
Employees, Management Company’s) right, title and interest in and to the
following property, excluding the Retained Assets (collectively, the “Acquired Assets”), together with the related Liabilities:


 


(a)                                  all
transferable and assignable rights and benefits of Seller under contracts,
purchase orders, proposals or bids relating to the Business, including, without
limitation, the rights and benefits of Seller under and pursuant to the Parcel
F Development Agreement;


 


(b)                                 all
transferable and assignable rights of Seller under all contracts and agreements
written or oral pertaining to the operation of the Business in the ordinary
course or related to the Acquired Assets, including, without limitation, (i) the
Westin Management Agreement, (ii) the Troon Management Agreement, (iii) the
letter agreement dated as of August 9, 2005, by and between Starwood and
GTA, regarding GTA’s and its Affiliates’ participation in the Automatic Hotel
Charges Settlement, (iv) the Defense and Escrow Agreement, (v) the
Operational Benefits Agreement, (vi) the Troon Institute Lease Agreement, (vii) the
Assignment, Consent, Subordination and Nondisturbance Agreement, (viii) the
Parcel F Memorandum of Agreement, (ix) the Parcel F Development Agreement,
(x) the Parcel J-4 Lease, (xi) any rental pool agreements, including, without
limitation, the Rental Pool Agreement, (xii) any agreements relating to the
advertising of the Business, and (xiii) any and all employment contracts of
Employees, membership agreements, equipment leases, guaranties, pledge
agreements, contribution agreements, service contracts and any and all other
such agreements, as described in Schedule 2.01(b) attached
hereto (all contracts and agreements described in this Section 2.01(b) are
collectively referred to as the “Contracts”);


 


(c)                                  all
transferable and assignable licenses (including, without limitation, liquor licenses),
Permits, certificates of occupancy and rights under Permits, approvals, and 


 


16





















 


allocations
issued or approved by a Governmental Authority relating to the Real Property or
the Business and the operation thereof and other similar documents described in
Schedule 2.01(c) attached hereto, in each case to the extent
transferable pursuant to applicable law and subject to all regulatory or other
approvals required by any Governmental Authority in respect thereto;


 


(d)                                 all
transferable and assignable agreements, Permits, variances and approvals
relating to the development of any of the Real Property, in each case to the
extent transferable pursuant to applicable law and subject to all regulatory or
other approvals required by any Governmental Authority in respect thereto;


 


(e)                                  all
transferable surveys, plans, maps, specifications, drawings and other similar
documents relating to the Owned Real Property and owned by Seller (the “Land Plans and Specifications”);


 


(f)                                    all
transferable and assignable guarantees, Permits and warranties issued in
connection with (i) the construction, operation, use, improvement,
alteration or repair of the Tangible Personal Property and the Improvements,
and (ii) the purchase or repair of any Tangible Personal Property or
Improvements (the “Warranties and Guaranties”);


 


(g)                                 all
books, files and records of Seller relating to the Business, the Acquired
Assets or Assumed Liabilities, including, without limitation, the following to
the extent owned or licensed by Seller, transferable and assignable: management
information systems or software owned by Seller, engineering information, sales
and promotional literature, manuals and data, sales and purchase
correspondence, personnel and employment records, customer lists, vendor lists,
catalogs, research material, URLs, source codes, technical information, trade
secrets, technology, know-how, specifications, designs, drawings, processes,
and quality control data, if any, and any other intangible property and
applications for the same;


 


(h)                                 all
Leased Real Property;


 


(i)                                     all
Owned Real Property (including, without limitation, (i) the real property
on which the Resort and three and one-half (31⁄2) eighteen (18) hole golf courses
are located, but not that certain one half (1⁄2) (or nine (9) holes) of one
such eighteen (18) hole golf course located at the Resort that is the subject
of the Pinellas County Rights (as defined herein) (the “Innisbrook
Real Property”), (ii) those certain three (3) condominium properties
located at the Resort and commonly known as Unit 301 in Building 15, Unit 104
in Building 20 and Unit 103 in Building 28 of the Innisbrook Condominiums (the “Condo Property”) (each of (i) and (ii) as more
particularly described in Schedule 2.01(i)(1) attached
hereto), and (iii) that certain linen closet commonly described as Unit
115 in Building 28 of the Innisbrook Condominiums as more particularly
described in Schedule 2.01(i)(2) attached hereto) and Condo
Owner’s right to all accrued but unpaid rental pool or other distributions, if
any, relating to the Condo Property;


 


(j)                                     all
transferable and assignable right, title and interest in and to that certain
0.6 acre tract, more particularly depicted in Schedule 2.01(j)
attached hereto (“Parcel J-4”),
within the property commonly referred to as Parcel J and contiguous to the
eastern gatehouse of the Resort, to be leased (the “Parcel J-4
Lease”) to Parcel F, L.L.C., a Florida limited liability company,
upon sale of Parcel F as contemplated by the Amended and Restated Agreement for



 


17





















 


Sale
and Purchase of Real Property – Parcel F dated as of June 29, 2004, by and
between GHR and Parcel F, L.L.C. and the Parcel F Development Agreement;


 


(k)                                  all
transferable and assignable right, title and interest in and to any and all
contractual, real property or other rights or benefits of Seller and its
Affiliates, including Condo Owner, relating to: (i) the property commonly
referred to as Parcels J-1 and J-2, as such properties are further described in
that certain Agreement for Sale and Purchase of Real Property –
Multi-Family Sites last dated November 6, 2000, by and between GHR and CKT
Development Co., a Florida corporation (“CKT”) (“Parcels J-1 and J-2”), and (ii) the property commonly
referred to as Parcel K, as such property is further described in that certain
Agreement for Sale and Purchase of Real Property – Multi-Family Sites dated as
of June 19, 1998, by and between GHR and CKT (“Parcel K”),
which contractual, real property or other rights or benefits are listed in Schedule 2.01(k)
attached hereto (collectively, the “Parcel Rights”);


 


(l)                                     all
transferable and assignable right, title and interest in and to any and all
contractual, real property or other rights or benefits of Seller and its
Affiliates, including Condo Owner, solely relating to any portion of that
certain real property owned by Pinellas County, Florida in Schedule 2.01(l)
attached hereto (the “Pinellas County Land”),
which contractual, real property or other rights or benefits are set forth in Schedule 2.01(l)
attached hereto, including, without limitation, those certain easements
(including, without limitation, the exclusive easement to and for the benefit
of Seller for the purposes of enabling Seller to construct, operate, maintain,
repair and replace nine (9) holes of a golf course) and other rights set
forth in that certain Agreement for Effluent Disposal dated as of April 30,
1973, by and between Golf Host South, Inc., a Florida corporation (succeeded
by GHR by merger), and Pinellas County, as amended from time to time,
including, without limitation, by the amendments thereto dated as of January 28,
1997 and March 29, 2001, by and between GHR and Pinellas County (all such
right, title and interest collectively, the “Pinellas
County Rights”);


 


(m)                               all
transferable and assignable right, title and interest in and to any and all
contractual, real property or other rights or benefits of Seller and its
Affiliates, including Condo Owner, solely relating to any portion of that
certain real property which is owned (or previously owned) by Wall Springs
Conservatory, Inc. and located adjacent to part of the Real Property, as
such real property is described more particularly in Schedule 2.01(m)
attached hereto (the “Wall Springs Land”),
which contractual, real property or other rights or benefits are set forth in Schedule 2.01(m),
including, without limitation, those certain easements (including, without
limitation, the easements over and across the Wall Springs Land relating to,
among other matters, drainage matters, cart paths and utility installations)
and other rights set forth in that certain Easements and Development Agreement
dated as of February 11, 1997, by and between GHR and Wall Springs
Conservatory, Inc., as amended and/or restated (all such right, title and
interest collectively, the “Wall Springs Rights”);


 


(n)                                 all
improvements located on the Owned Real Property, including, without limitation,
the driving ranges, putting greens, tees, fairways, cart paths, clubhouse
facilities, snack bars, restaurants, pro shops, buildings, structures, parking
lots, roadways, landscaping, fixtures and other improvements located on the
Owned Real Property (collectively, the “Improvements”);


 


18





















 


(o)                                 all
transferable and assignable items of tangible personal property and fixtures
owned, leased or used by Seller and located on or used in connection with the
maintenance, operation and/or management of the Business and the Owned Real
Property and the golf courses located thereon commonly known as Copperhead,
Island, and Highlands North and South Golf Courses, including, without
limitation, inventory, machinery, equipment, furniture, furnishings, movable
walls or partitions, phone, utility, electrical, mechanical, HVAC, plumbing,
refrigeration, security and other control systems, restaurant equipment,
computers, trade fixtures, golf carts, golf course operation and maintenance
equipment (including pump stations, generators and irrigation transfer lines),
valves or rotors, driving range equipment, athletic training equipment, office
equipment or machines, antiques, other decorations, and equipment or machinery
of every kind or nature located on or used in connection with the operation of
the Real Property, whether on or off-site, including all warranties and
guaranties associated therewith (collectively, the “Tangible
Personal Property”) (A non-exclusive schedule of the Tangible
Personal Property as of September 30, 2005 is attached hereto as Schedule 2.01(o).);


 


(p)                                 all
transferable and assignable items of intangible personal property owned by
Seller and used in connection with the construction, ownership, operation,
leasing or maintenance of the Real Property and the golf courses located
thereon and commonly known as Copperhead, Island, and Highlands North and South
Golf Courses or the Tangible Personal Property related thereto, including,
without limitation, all goodwill attributed to the Owned Real Property, and any
and all exclusive rights to trademarks, copyrights, tradenames, guarantees,
authorizations, general intangibles, business records, plans and
specifications, surveys, licenses, Permits and approvals with respect to the
construction, ownership, operation, leasing or maintenance of the Real
Property, any unpaid award for taking by condemnation or any damage to the
Owned Real Property or Tangible Personal Property, excluding any of the
aforesaid rights that Buyer elects not to acquire by written notice to Seller
delivered prior to the expiration of the Due Diligence Period (collectively,
the “Intangible Personal Property”) (A
non-exclusive schedule of the Intangible Personal Property as of June 30,
2005 is attached hereto as Schedule 2.01(p).);


 


(q)                                 all
keys, security codes, passwords and combinations to the Real Property, the
Tangible Personal Property and the Improvements;


 


(r)                                    all
of Holding Company’s direct or indirect ownership interest in GH Securities
(the “GH Securities Stock Interests”);


 


(s)                                  all
transferable and assignable Intellectual Property relating to the operation of
the Business or the Acquired Assets, excluding any and all rights to any name
representing the legal entity (i) GTA or any of its Subsidiaries or
Affiliates, other than GH Securities, (ii) Westin, except to the extent
expressly permitted by the Westin Management Agreement, or (iii) Troon,
except to the extent expressly permitted by the Troon Management Agreement;


 


(t)                                    all
transferable and assignable advertising or promotional materials related to or
used in connection with the Acquired Assets or the Business;


 


19





















 


(u)                                 all
transferable rights to the telephone numbers (and related directory listings)
used in connection with the Business or the Acquired Assets;


 


(v)                                 subject
to Sections 2.05(f) and 2.07 hereof, all transferable
security deposits, earnest deposits, and all other forms of security placed
with Seller or any of its Affiliates related to the Business for the
performance of a contract or agreement which otherwise constitutes a portion of
the Acquired Assets which Seller has not drawn upon prior to the Closing Date;


 


(w)                               any
transferable goodwill in or arising from the Acquired Assets and the Business;


 


(x)                                   all
of Seller’s, Condo Owner’s or any of their Affiliates’ transferable and
assignable right, title and interest with respect to any and all insurance
policies related to the Acquired Assets and the Business set forth in Schedule 4.20
attached hereto under the heading “The following insurance policies shall be
transferred to Buyer to the extent transferable and/or assignable”, including
any net proceeds or net premium refunds accrued and payable thereunder after
the Closing Date; provided, however, that neither Seller, Condo Owner nor any
of their Affiliates shall have any obligation to maintain any insurance with
respect to the Acquired Assets or the Business after the Closing Date nor any
obligation to transfer any insurance related to (i) Parent, Seller or
Condo Owner in general, (ii) any Retained Assets, or (iii) any
Retained Liabilities; provided, further, that (w) after the Closing Seller and
any of its Affiliates, as applicable, shall retain the right, and Buyer shall
agree to Seller and any of its Affiliates, as applicable, retaining the right,
to make any claims under any of the insurance policies transferred to Buyer
pursuant to this Section 2.01(x), (x) Buyer shall add Seller and
any of its Affiliates, as applicable, as an additional insured to each
insurance policy transferred to Buyer pursuant to this Section 2.01(x),
(y) Buyer shall neither terminate nor agree to terms less favorable under, and
shall act in conformance with the terms of, any insurance policy transferred to
Buyer pursuant to this Section 2.01(x) prior to the expiration of
each such insurance policy’s current term as of the Closing Date, and (z) Buyer
shall use commercially reasonable efforts to cooperate with Seller or any of
its Affiliates, as applicable, to file, defend and/or obtain any claims to the
benefit of Seller or any of its Affiliates, as applicable, under any of the
insurance policies transferred to Buyer pursuant to this Section 2.01(x);


 


(y)                                 subject
to Sections 2.05(f) and 2.07 hereof, all accounts
receivable, notes receivable, loans receivable, advances, letters of credit and
other rights to receive payments of the Business arising after the Closing Date
(collectively, “Accounts Receivable”);


 


(z)                                   subject
to Sections 2.05(f) and 2.07 hereof, all prepaid expenses or
deposits of the Business; and


 


(aa)                            all
other transferable assets and properties owned by Seller or any of its
Affiliates used primarily in connection with the Business.


 


Section 2.02                            Retained
Assets.


 


Notwithstanding
Section 2.01 hereof or anything else in this Agreement to the
contrary, all of Seller’s and its Affiliates’ right, title and interest in and
to the following properties, assets 


 


20





















 


and rights
shall be excluded from the Acquired Assets and not sold or assigned to Buyer
and shall be retained by Seller or any of its Affiliates for the period
accruing prior to and after the Closing Date (collectively, the “Retained Assets”):


 


(a)                                  Unrestricted
Cash;


 


(b)                                 all
non-assignable or non-transferable Permits of the Business (to the extent the
parties are unable to obtain the required consent to the assignment of any such
Permit);


 


(c)                                  any
claims arising out of any Retained Assets or Retained Liabilities, including,
without limitation, that certain action filed by Seller to contest the property
tax assessment for 2004 issued by Pinellas County in connection with the Resort
as described in Schedule 2.02(g) attached hereto and any
future actions filed by Seller, if any, relating to the property tax assessment
for 2005 by Pinellas County in connection with the Resort;


 


(d)                                 Seller’s
right to payments from Aon Corporation in the total amount of Four Thousand Six
Hundred Forty Dollars and Sixty-Two Cents ($4,640.62) pursuant to that certain
General Release dated as of July 12, 2005, by and between Seller and Aon
Corporation;


 


(e)                                  any
asset of Seller or any of its Affiliates not used in connection with the
Business, including, without limitation, all books, files, records and related
documents and materials of Seller and any of its Affiliates not related to the
Business;


 


(f)                                    all
personal property owned by any Employee or any employee of Westin or Troon,
including certain printers, docking stations and fitness equipment, and the
furniture and computer equipment in the owner’s office at the Resort set forth
in Schedule 2.02(f), including, without limitation, the laptop and
Blackberry used by Keith Wilt; and


 


(g)                                 the
assets set forth in Schedule 2.02(g) attached hereto.


 


In the event
of a conflict between the definition of “Acquired Assets” and the definition of
“Retained Assets”, the definition of “Retained Assets” shall control.


 


Section 2.03                            Assumed
Liabilities.


 


Subject to the
terms and conditions set forth in this Agreement and excluding the Retained
Liabilities (as defined herein), on the Closing Date, Buyer shall assume all
the Liabilities of the Business and the Liabilities of the Acquired Assets that
have not been paid, performed or discharged in full as of the Closing (as
defined herein) and shall be solely and exclusively liable with respect to, and
shall pay, perform or discharge, indemnify, defend and hold harmless Seller,
Parent and their Affiliates, including Condo Owner, against any loss,
liability, damage or expense arising from all Liabilities of the Business and
Liabilities of the Acquired Assets (collectively, the “Assumed
Liabilities”), including, without limitation, those Liabilities set
forth below:


 


(a)                                  all
Liabilities arising from or relating to the Acquired Assets;


 


21





















 


(b)                                 all
Liabilities that Buyer and its Affiliates have expressly agreed to retain, pay
for or be responsible for pursuant to this Agreement;


 


(c)                                  all
Liabilities of the Business arising out of the conduct of the Business at any
time on, prior to or after the Closing, except to the extent expressly retained
by Seller as Retained Liabilities pursuant to this Agreement;


 


(d)                                 all
Liabilities relating to any fees and expenses of Buyer or any of its Affiliates
incurred in connection with this Agreement, including, without limitation, any fees
or expenses of counsel to Buyer and its Affiliates;


 


(e)                                  subject
to Sections 2.05(f) and 2.07 hereof and except as provided
in Section 8.03 hereof, all Liabilities for Taxes arising out of
the Business or any of the Acquired Assets attributable to any period (or
portion thereof) ending after or on the Closing;


 


(f)                                    all
Liabilities to any Employee arising on or after the Closing, including, without
limitation, all Liabilities under the Plans and all other employee benefit
plans maintained applicable to any of the Employees under WARN or COBRA (or
similar state or local laws) and all Liabilities to any Westin or Troon
employee resulting from the sale of the Resort pursuant to this Agreement or
arising on or after the Closing;


 


(g)                                 all
Liabilities arising from the Contracts, including, without limitation, (i) the
Westin Management Agreement, including, without limitation, Sections 4.4 and
4.7.2 therein, (ii) the Troon Management Agreement, including, without
limitation, Section 7.03 therein, (iii) the Rental Pool Agreement,
including, without limitation, liability for any payments to be made after the
Closing Date to any lessor thereunder regarding certain completed
refurbishments, (iv) the letter agreement dated as of August 9, 2005,
by and between Starwood and GTA, regarding GTA’s and its Affiliates’
participation in the Automatic Hotel Charges Settlement, (v) any Contracts
relating to the advertising of the Business, and (vi) all Liabilities
arising upon or in connection with (A) the transfer, assumption and/or
assignment of any or all of the Contracts, (B) the sale of the Business,
the Real Property and/or the Acquired Assets or any portion thereof, or (C) the
termination of any or all of the Contracts;


 


(h)                                 all
Liabilities arising from the Parcel F litigation set forth in Schedule 4.09
attached hereto, all Liabilities of GTA or any of its Affiliates arising from
the Automatic Hotel Charges Settlement, and all litigation, arbitration
proceedings or claims arising from the conduct of the Business, the Acquired
Assets or the Assumed Liabilities at or after the Closing;


 


(i)                                     all
Liabilities relating to the Business or any of the Acquired Assets and/or any
services which are performed by the Business which are Pre-Closing
Environmental Liabilities or which constitute, may constitute or are alleged to
constitute a tort, breach of contract or violation of, or noncompliance with,
any applicable law, including, without limitation, any law relating to
employment, workers’ compensation, occupational health and safety, occupational
disease, occupational injury, toxic tort or Environmental Law, in each case
arising from or based on conduct, or a failure to act, occurring at any time other
than during the period of Seller’s title to the related Acquired Assets;


 


22





















 


(j)                                     all
Liabilities for death, personal injury, other injury to persons or property
damage relating to, resulting from, caused by or arising out of, directly or
indirectly, use of or exposure to any of the Acquired Assets or products, or
any part or component serviced, distributed, leased or sold by or on behalf of
the Business, or services performed by the Business, at or after the Closing,
including, without limitation, any such Liabilities based on negligence, strict
liability, product liability, design or manufacturing defect, conspiracy,
failure to warn, or breach of express or implied warranties of merchantability
or fitness for any purpose or use, or any allegations concerning any of the
foregoing;


 


(k)                                  all
Liabilities relating to any agreement or arrangement transferred to or acquired
by Buyer pursuant to this Agreement which requires payments to be made or
benefits to be given upon or after the Closing, including, without limitation,
any Liability accruing with respect to any time period on or prior to the
Closing Date;


 


(l)                                     any
premiums, reinsurance payments, payments under reimbursement contracts or other
adjustments under any insurance policy maintained for the benefit of the
Business;


 


(m)                               subject
to Sections 2.05(f) and 2.07 hereof, any premiums,
reinsurance payments, payments under reimbursement contracts or other
adjustments under any insurance policy maintained for the benefit of the
Business accruing with respect to any time period ending after, on or prior to
the Closing Date and/or due on or after the Closing Date;


 


(n)                                 any
and all Liabilities arising out of the Contracts, including any Liability
accruing with respect to any time period on or prior to the Closing Date;


 


(o)                                 all
Liabilities arising out of or related to any Liens not expressly retained by
Seller pursuant to Section 2.04 hereof, including, without
limitation, the Loan Agreement, dated as of July 15, 2004, by and between
Elk Funding, L.L.C. and Parent, regarding a promissory note in the amount of
Seven Hundred Thousand Dollars ($700,000) in the name of Parent secured by the
lien of that certain Assignment of Defense and Escrow Agreement dated as of July 15,
2004, by and between Parent and Elk Funding, L.L.C. assigning all of the right,
title, interest and estate of Parent in the Defense and Escrow Agreement to Elk
Funding, L.L.C.;


 


(p)                                 notwithstanding
anything to the contrary in this Agreement, all current Liabilities on the
Statement of the Closing Date Working Capital, subject to the adjustment
thereof pursuant to Section 2.07 hereof, whether or not such
Liabilities are similar in nature, type or magnitude to the Liabilities
reflected on the Unaudited Balance Sheet; and


 


(q)                                 all
Liabilities set forth in Schedule 2.03(q) attached hereto.


 


Section 2.04                            Retained
Liabilities.


 


Notwithstanding
anything in this Agreement to the contrary and excluding the Assumed
Liabilities (unless otherwise specified below), Buyer shall not assume, and
shall not be deemed to have assumed, and Seller and its Affiliates shall be
solely and exclusively liable with respect to, and shall pay, perform or
discharge, indemnify, defend and hold harmless Buyer and its 


 


23





















 


Affiliates
against, any loss, liability, damage or expense arising from those certain
specified Liabilities of Seller set forth below (collectively, the “Retained Liabilities”):


 


(a)                                  all
Liabilities solely relating to the Retained Assets;


 


(b)                                 all
Liabilities that Seller and its Affiliates have expressly agreed to retain, pay
for or be responsible for, as particularly set forth in this Agreement;


 


(c)                                  all
Liabilities relating to any professional fees and expenses of Seller or any of
its Affiliates incurred in connection with this Agreement, including any fees
or expenses of legal counsel to Seller and fees and expenses of Houlihan Lokey
or any of its Affiliates;


 


(d)                                 any
Liabilities arising from the pending litigation set forth in Schedule 4.09,
excluding the Liabilities assumed by Buyer pursuant to Section 2.03(h) hereof;


 


(e)                                  subject
to Sections 2.05(f) and 2.07 hereof and except as provided
in Section 8.03 hereof, all Liabilities for Taxes arising out of
the Business or any of the Acquired Assets attributable to any period (or
portion thereof) ending on or prior to the Closing;


 


(f)                                    any
retrospective premiums, reinsurance payments, payments under reimbursement
contracts or other adjustments under any insurance policy covering any Retained
Liability;


 


(g)                                 all
Liabilities relating to any agreement or arrangement not transferred to or
acquired by Buyer pursuant to this Agreement which requires payments to be made
or benefits to be given upon or after the Closing;


 


(h)                                 subject
to Sections 2.05(f) and 2.07 hereof and except as otherwise
expressly assumed by Buyer pursuant to this Agreement, all Liabilities to
Employees or former employees of the Business, including, without limitation,
all Liabilities under the Plans and all other employee benefit plans maintained
by Seller or any of its Affiliates;


 


(i)                                     subject
to Sections 2.05(f) and 2.07 hereof and except as otherwise
expressly assumed by Buyer pursuant to this Agreement, all Liabilities of GH
Securities attributable to any period (or portion thereof) ending on or prior
to the Closing; and


 


(j)                                     all
Liabilities relating to the Business or any of the Acquired Assets and/or any
services which are performed by the Business which are Pre-Closing
Environmental Liabilities or which constitute, may constitute or are alleged to
constitute a tort, breach of contract or violation of, or noncompliance with,
any applicable law, including, without limitation, any law relating to
employment, workers’ compensation, occupational health and safety, occupational
disease, occupational injury, toxic tort or Environmental Law, in each case
arising from or based on Seller’s or any of its Affiliates’ conduct, or failure
to act, occurring during the period of Seller’s title to the related Acquired
Assets.


 


In the event
of a conflict between the definition of “Assumed Liabilities” and the definition
of “Retained Liabilities”, the definition of “Assumed Liabilities” shall
control.


 


24





















 


Section 2.05                            Purchase
Price.


 


(a)                                  Subject
to the terms and conditions of this Agreement and the adjustment provided for
in Section 6.04, if any, and Section 2.07 hereof, in
consideration of the aforesaid assumption of the Assumed Liabilities and the
sale, conveyance, assignment, transfer and delivery to Buyer of the Acquired
Assets, at the Closing Buyer shall pay to Seller cash in the amount of
Forty-Five Million Dollars ($45,000,000) (the “Purchase
Price”), (i) less the Deposit Amount, upon Seller’s full
receipt thereof at the Closing, (ii) less Seller’s Escrow Amount (as
defined herein), provided that Buyer delivers to Escrow Agent cash in the
amount of Five Hundred Thousand Dollars ($500,000) (the “Seller’s
Escrow Amount”) to secure Seller’s obligations pursuant to Section 2.07
and Article 11 hereof, and (iii) plus the amount, if any, by
which Estimated Closing Date Working Capital (as defined herein) is more than
Target Working Capital (as defined herein) or minus the amount, if any, by
which Estimated Closing Date Working Capital is less than Target Working
Capital (the amount paid to Seller at the Closing, the “Closing
Transfer Amount”).


 


(b)                                 At
least two (2) Business Days prior to the Closing, Seller shall furnish to
Buyer a certificate (the “Estimated Closing Date
Working Capital Certificate”) setting forth an estimate of the Closing
Date Working Capital (the “Estimated Closing Date
Working Capital”).  Seller
shall also provide Buyer with any available supporting documentation used in
the preparation of the Estimated Closing Date Working Capital Certificate as is
reasonably requested by Buyer.


 


(c)                                  Seller
and Buyer shall use commercially reasonable efforts to reasonably allocate the
Purchase Price (as it may be adjusted pursuant to Section 2.07
hereof) plus the Assumed Liabilities (the “Allocation”).  Schedule 2.05(c) attached
hereto shall constitute the proposed Allocation by Seller (the “Proposed Allocation”). 
Within ten (10) Business Days after the Execution Date, Buyer shall
consent to the Proposed Allocation by written notice to Seller.  If Buyer does not furnish Seller with the
written notice contemplated by the immediately preceding sentence within ten (10) Business
Days after the Execution Date, Buyer shall be deemed to have consented to the
Proposed Allocation.  In the event Buyer
consents to the Proposed Allocation pursuant to this Section 2.05(c),
the Proposed Allocation shall constitute the Allocation.  In the event Buyer objects in writing to the
Proposed Allocation within ten (10) Business Days after the Execution Date
and Seller and Buyer are unable in good faith to reach an agreement on the
Proposed Allocation, the matter shall be promptly referred to BDO Seidman, LLP,
Seller’s independent auditors, for resolution of the disagreement within ten (10) days.  The resolution of the dispute by BDO Seidman,
LLP shall be final and binding on the parties and there shall be no right of
appeal therefrom.  Seller and Buyer shall
evenly split the fees and expenses of BDO Seidman, LLP related to this Section 2.05(c).  GTA, Seller, Parent and Buyer shall (i) be
bound, and cause their Affiliates to be bound, by the Allocation, and (ii) act,
and cause their Affiliates to act, in accordance with, and to take no position
inconsistent with, the Allocation in the preparation, filing and audit of any
Tax Return (including, without limitation, the filing of any forms, information
returns, reports or statements with any Tax Return for the taxable year that
includes the Closing Date) and for all tax and accounting purposes.


 


(d)                                 In
the event Buyer elects the Extension (as defined herein) pursuant to Section 2.06
hereof, the Purchase Price shall be increased by an amount equal to: (i) verifiable,



 


25





















 


reasonable
and actual out-of-pocket capital expenditure costs incurred in the ordinary
course of business consistent with past practice to maintain the Acquired
Assets in their condition as of the Execution Date paid by Seller or any of its
Affiliates, plus (ii) any payments made by Seller pursuant to the Rental
Pool Agreement for certain completed refurbishments; provided that the costs
and expenses under clauses (i) and (ii) above relate to the period
commencing on November 30, 2005 and ending on the Closing Date.


 


(e)                                  In
the event Buyer elects the Extension (as defined herein) pursuant to Section 2.06
hereof and the transactions contemplated by this Agreement are consummated, the
Purchase Price shall be increased by an amount equal to (i) the amount for
which GTA purchases from AEW all of the GTA Series A Cumulative
Convertible Redeemable Preferred Stock held by AEW, including, without
limitation, all of AEW’s rights to any liquidation preferences, minus (ii) Twenty-Four
Million Nine Hundred Fourteen Thousand Dollars ($24,914,000).


 


(f)                                    Notwithstanding
anything in this Agreement to the contrary, as of the Closing Date, the assets
and liabilities included in the Total Current Assets and Total Current
Liabilities shall constitute Acquired Assets and Assumed Liabilities, as
applicable.  On and after the Closing
Date, any change in any of the assets or liabilities included in the Total
Current Assets and Total Current Liabilities shall constitute an Acquired Asset
or an Assumed Liability, as applicable. 
Nothing in this Section 2.05(f) shall release Seller or
Buyer from their respective obligations pursuant to Section 2.07
hereof.


 


Section 2.06                            Closing.


 


The closing of
the purchase and sale of the Acquired Assets hereunder (the “Closing”) shall take place at 9:00 a.m. (Eastern time)
at the offices of O’Melveny & Myers LLP, Times Square Tower, 7 Times
Square, New York, New York, upon five (5) Business Days written notice
from Buyer to Seller after the expiration of the Due Diligence Period (the “Initial Closing Date”), subject to the satisfaction or
waiver of the conditions set forth in Article 10 hereof, which
Closing shall occur in no event later than November 30, 2005 (the “Termination Date”), unless another date or place is agreed
to in writing upon the mutual agreement of the parties hereto; provided,
however, that the parties hereto understand and agree that no such agreement to
modify the date or place shall be contemplated or obligatory.  At the Closing, the parties shall deliver all
funds, documents and instruments required to be delivered pursuant to Article 10
hereof.  Notwithstanding the foregoing,
the Buyer may elect, in its sole discretion, to extend the Termination Date to December 30,
2005 by notifying Seller in writing of such extension on or before November 25,
2005 (such extension, if any, the “Extension”);
provided, however, in the event that Buyer elects the Extension, (i) Buyer
shall deposit the Additional Deposit Amount with Escrow Agent and, if prior to
the expiration of the Due Diligence Period, shall cause CWYP to deposit the Original
Deposit Amount with Escrow Agent on the date of the Extension (the “Extension Date”) as a deposit against the Purchase Price, (ii) the
Additional Deposit Amount shall be included in the Deposit Amount and the
Deposit Amount shall total Six Million Dollars ($6,000,000) from, and
including, the Extension Date, and (iii) the Deposit Amount shall become
non-refundable to Buyer as of the Extension Date and delivered to Seller
forthwith as liquidated damages hereunder without demand, deduction, offset or
delay in the event that this Agreement is terminated for any reason other than
as otherwise expressly provided in this Agreement.


 


26


















 


Section 2.07                            Post-Closing
Purchase Price Adjustment.


 


The Purchase
Price is subject to adjustment (such adjustment not to result in a duplicate
accounting or calculation of any Acquired Asset, Retained Asset, Assumed
Liability or Retained Liability, respectively, in whole or in part) to be
determined as follows:


 


(a)                                  For
purposes of this Agreement, the term “Net Working Capital”
shall mean (i) Total Current Assets, minus (ii) Total Current
Liabilities (excluding for this purpose all liabilities paid by or on behalf of
Seller or any of its Affiliates pursuant to this Agreement at the Closing), all
as finally determined by this Section 2.07.


 


(b)                                 The
parties have heretofore mutually agreed that the target Net Working Capital of
the Business (the “Target Working Capital”)
is Zero Dollars ($0).


 


(c)                                  Within
forty-five (45) days after the Closing Date, Buyer shall deliver to Seller (the
date of such delivery being the “Adjustment Date”)
a statement of the Net Working Capital as of the Closing Date (the “Statement of the Closing Date Working Capital”), which (a) shall
have been prepared following a special purpose audit of the Net Working Capital
by the Auditor in accordance with GAAP applied on a basis consistent with that
used to prepare the Unaudited Balance Sheet and (b) shall set forth the
Net Working Capital on the Closing Date (the “Closing Date
Working Capital”).  Buyer and
Seller shall each pay one half (1⁄2) of the expenses related to the special
purpose audit of the Net Working Capital.


 


(d)                                 Any
dispute which may arise between Buyer and Seller as to the Closing Date Working
Capital shall be resolved in the following manner:


 


(i)                                     If
Seller disputes the calculation of the Closing Date Working Capital or any
portion thereof, Seller shall deliver a notice (the “Objection
Notice”) to Buyer within ten (10) days after the Adjustment
Date.  The Objection Notice shall specify
in reasonable detail those items or amounts as to which Seller disagrees and
Seller shall be deemed to have agreed with all other items and amounts in the
Statement of the Closing Date Working Capital delivered pursuant to this Section 2.07.


 


(ii)                                  During
the ten (10) day period following the delivery of the Objection Notice,
Buyer and Seller shall attempt to resolve such dispute.  In attempting to resolve such dispute, Buyer
and the Auditor shall permit Seller and its auditors, at the earliest
practicable date, access to and copies of the work papers and calculations
related thereto of Buyer which Buyer and the Auditor used to determine the
Closing Date Working Capital.


 


(iii)                               If
at the end of the ten (10) day period specified in clause (ii) above,
the parties shall have failed to reach agreement with respect to such dispute,
the matter shall be referred to an internationally recognized accounting firm
of independent certified public accountants, which will be different from the
Auditor and the firms currently used by each of Seller or Buyer as the parties
mutually agree (the “Independent Accounting
Firm”) for resolution.  The
Independent Accounting Firm shall be instructed to use every reasonable effort
to perform such services within thirty (30) days of the submission to it of the
Statement of the Closing Date Working Capital 


 


27





















 


and related dispute and,
in any case, as soon as practicable after such submission.  Each of Seller and Buyer shall submit
evidence in support of its position on each item in dispute as well as the
procedures to be followed by the Independent Accounting Firm, and the Independent
Accounting Firm shall decide the dispute in accordance therewith.  The Independent Accounting Firm shall
establish such procedures giving due regard to the intention of Seller and
Buyer to resolve disputes as quickly, efficiently and inexpensively as
possible, which procedures may be, but need not be, those proposed by either
Seller or Buyer.  In reaching a decision
on each item in dispute, the Independent Accounting Firm’s decision is
expressly limited to the selection of either Seller’s or Buyer’s position on
each such disputed item.  Upon final
resolution of all disputed issues, the Independent Accounting Firm shall issue
a report showing the calculation of the Net Working Capital based on its
determinations pursuant to this Section 2.07(d).  The resolution of the dispute by the
Independent Accounting Firm shall be final and binding on the parties and there
shall be no right of appeal therefrom.


 


(iv)                              Seller
shall bear the percentage of the fees and expenses of the Independent
Accounting Firm that equals the difference between Seller’s calculation of the
Closing Date Working Capital and the Final Working Capital (as defined herein)
divided by the difference between Seller’s calculation and Buyer’s calculation
of the Closing Date Working Capital.  Buyer
shall bear the percentage of the expenses of the Independent Accounting Firm
that equals the difference between the Final Working Capital and Buyer’s
calculation of the Closing Date Working Capital divided by the difference
between Seller’s calculation and Buyer’s calculation of the Closing Date
Working Capital.


 


(v)                                 The
final working capital shall be, (i) in the event of a dispute, the final
amount determined pursuant to either Section 2.07(d)(ii) or 2.07(d)(iii) hereof
or, (ii) in the event there is no dispute, the Closing Date Working
Capital (the “Final Working Capital”).


 


(vi)                              Within
five (5) Business Days after the later of (i) thirty (30) days
following the Adjustment Date if there is no Objection Notice, (ii) the
date of the settlement of any dispute made in accordance with the provisions of
Section 2.07(d)(ii) hereof, or (iii) the date of the
decision of the Independent Accounting Firm in connection with any dispute made
in accordance with the provisions of Section 2.07(d)(iii) hereof:
(x) Seller shall reimburse Buyer, by wire transfer of immediately available
funds, to such bank as indicated by Buyer in an amount by which the Final
Working Capital is less than the Estimated Closing Date Working Capital or (y)
Buyer shall reimburse Seller, by wire transfer of immediately available funds,
to such bank as indicated by Seller in an amount by which the Final Working
Capital is greater than the Estimated Closing Date Working Capital.  The amount of any payment to be made pursuant
to this Section 2.07 shall bear interest from, and including, the
Closing Date until, but excluding, the date of payment at a rate per annum
equal to the rate of interest publicly announced by Bank of America, N.A. from
time to time as its “reference rate” during the period from the Closing Date to
the date of payment.  Such interest shall
be payable at the same time as the payment to which it relates and shall be
calculated daily on the basis of a year of three hundred sixty-five (365) days
and the actual number of days elapsed.


 


28





















 


(e)                                  Buyer
and Seller agree that they will, and agree to cause their respective auditors
and Affiliates to, cooperate and assist in the preparation of the calculation
of the Final Working Capital and the Closing Date Working Capital and in the
conduct of the audits and reviews referred to in this Section 2.07,
including, without limitation, making available to the extent necessary all
books, records, work papers and personnel, including, without limitation, the
execution of customary release or indemnification letters required by the
auditors in connection with the foregoing.


 


(f)                                    If
an adjustment is made with respect to the Purchase Price pursuant to this Section 2.07,
the allocations in Schedule 2.05(c) attached hereto shall be
adjusted in accordance with the Code and any other applicable state or local
Tax law and as mutually agreed by Buyer and Seller.  In the event that an agreement is not reached
within twenty (20) days after the later of (i) the Adjustment Date, (ii) the
date of the settlement of any dispute made in accordance with the provisions of
Section 2.07(d)(ii) hereof, or (iii) the date of the
decision of the Independent Accounting Firm in connection with any dispute made
pursuant to Section 2.07(d)(iii) hereof, any disputed items
shall be referred to the Independent Accounting Firm to resolve.  Upon resolution of the disputed items, the
allocation reflected in Schedule 2.05(c) attached hereto shall
be adjusted to reflect such resolution. 
The costs, fees and expenses of resolving the allocation disputes
described in this Section 2.07(f) by the Independent
Accounting Firm shall be borne equally by Buyer and Seller.  Buyer and Seller agree to file any additional
Tax Return required to be filed pursuant to the Code and any state, local or
foreign Tax law, regardless of whether any Tax is required to be paid in
connection with such filing, and Buyer and Seller shall cooperate with each
other in the preparation, execution and filing of such Tax Returns.


 


Section 2.08                            Due
Diligence.


 


(a)                                  Due Diligence Period.  As used in this Agreement, the term “Due Diligence Period” shall mean the period commencing on
the Execution Date and ending at 5:00 p.m. (Eastern time) on November 25,
2005 or such earlier date as Buyer may elect in writing.  Between the Execution Date and the Closing
Date, subject to applicable contracts and Seller’s right to prior written
notice of and attendance at all meetings (including, without limitation,
telephonic or other forms of communication) with third parties and employees of
the Business, during normal business hours Buyer and its agents, contractors
and representatives shall be entitled to enter the Real Property to perform any
and all reasonable inspections and tests required by Buyer of the Business, the
Real Property and the structural and mechanical systems within any Improvements
located on the Real Property, including, without limitation, environmental
tests; provided, however, that (i) any inspections or tests of the Leased
Real Property leased or subleased by Seller or any of its Affiliates shall be
conducted only upon receipt by Seller and Buyer of the prior written consent of
the owner of such Leased Real Property, which consent may be withheld at such
owner’s sole election, (ii) such inspections or tests shall be conducted
at Buyer’s sole risk, cost and expense, (iii) such inspections or tests
shall not materially disrupt or disturb the ongoing operation of the Business,
the Real Property or the rights of any tenants or users thereof beyond a
de minimis extent, (iv) Buyer or its agents, contractors or
representatives shall not drill or bore on or through the surface of the Real
Property unless, and only to the extent that, Seller has provided its prior
written consent allowing Buyer to do so, which consent shall not be
unreasonably withheld, and at Seller’s election, may 


 


29





















 


be
subject to reasonable conditions imposed by Seller, and (v) Buyer shall
provide Seller with an original certificate of insurance, in a form reasonably
approved by Seller, naming Seller, and each such other Person as Seller may
name, as an additional named insured. 
Buyer shall not conduct any material environmental or physically
intrusive inspection or test pursuant to this Section 2.08 without
Seller’s specific prior written consent to the underlying scope of work, which
consent shall not be unreasonably withheld. 
Prior to performing any material environmental or physically intrusive
inspections or tests, Buyer shall furnish Seller with a detailed scope of work
in respect of such inspection or test (a “Scope of Work”).  Within two (2) Business Days of Seller’s
receipt of a Scope of Work from Buyer, Seller shall, pursuant to a written
notice to Buyer, consent or reasonably withhold Seller’s consent to such Scope
of Work.  If Seller does not furnish
Buyer with the written notice contemplated by the immediately preceding
sentence in the time and in the manner provided in this Section 2.08,
Seller shall be deemed to have consented to the applicable Scope of Work.  At Seller’s election, Seller may subject
Seller’s consent to certain reasonable conditions.  After making any tests and inspections
pursuant to this Section 2.08, Buyer agrees to promptly restore the
Real Property to substantially the same condition prior to such tests and
inspections, which obligation shall survive any termination of this Agreement
and shall be an exception to the limitations on liquidated damages provided in Section 3.01
hereof.


 


(b)                                 Indemnification.  Buyer agrees to keep the Real Property free
from all liens and to indemnify, defend and hold harmless each of GTA, Seller,
Parent, Condo Owner, Holding Company, Management Company, Westin, Troon and
their Affiliates and their respective officers, directors, managers, employees,
agents, advisors, representatives, successors and assigns (collectively, the “Seller Parties”) from and against all damages, loss,
charges, judgments, penalties, fines, cost, liability, fees and expense
(including, without limitation, reasonable expenses of investigation or
remediation, any reasonable consulting or engineering fees in connection with
any investigation or remediation and reasonable attorneys’ fees and expenses in
connection with any action, suit or proceeding) (“Damages”)
incurred or suffered by the Seller Parties, or any of them, by reason of any
damage to the Real Property or injury to Persons caused solely by Buyer and/or
any of its Affiliates, agents, contractors or other representatives in exercising
their rights under this Section 2.08.  The indemnity provided pursuant to this Section 2.08(b) shall
survive the Closing and any termination of this Agreement.  Notwithstanding the foregoing, the indemnity
provided pursuant to this Section 2.08(b) shall not cover
existing liabilities for matters merely discovered by Buyer, including latent
environmental contamination, provided that the inspections, tests or other
activities performed by Buyer were properly conducted by Buyer or it agents in
accordance with the standard of care applicable to trained professionals and
such activities were performed in accordance with the Scope of Work approved in
writing by Seller prior to the commencement thereof.


 


(c)                                  Due Diligence Documents and Information.


 


(i)                                     Between
the Execution Date and the Closing Date, Seller shall make available on a
confidential basis pursuant to this Agreement and the Confidentiality Agreement
to Buyer and its agents, contractors and other representatives in the Data
Room, in hard or electronic copy, at Seller’s Charleston, South Carolina office
or at the location of the Real Property all material documents in Seller’s
actual possession pertaining to the Business, the Acquired Assets and the
Assumed Liabilities as Buyer 


 


30





















 


shall reasonably request,
including, without limitation, the items set forth in Schedule 2.08(c) attached
hereto (collectively, the “Due Diligence Materials”);
provided, however, Buyer shall not be entitled to receive from Seller, and
Seller shall not be obligated to deliver to Buyer, (A) any corporate or
other books, records or documents related to GTA, Parent or any of their
Affiliates or related to assets or properties of GTA, Parent or any of their
Affiliates not related to the Business, the Acquired Assets or the Assumed
Liabilities, or (B) any information or analysis pertaining to the
valuation of the Business, the Acquired Assets or the Assumed Liabilities or
any other bid or bidder therefor whether prepared for the benefit of Seller, by
the management of Seller, counsel of Seller, the Board of Directors of GTA,
Houlihan Lokey, any of the Seller Parties, any of their Affiliates or
otherwise.  In the event Seller provides
to Buyer any document, information or analysis described in this Section 2.08(c)(i)(A) or
(B), such document, information or analysis shall be included as part of
the Due Diligence Materials for all purposes.


 


(ii)                                  Buyer
further acknowledges and agrees that, subject to the additional investigations,
examinations and inspections to be conducted during the Due Diligence Period as
provided in this Agreement, Seller has afforded Buyer the opportunity for full
and complete investigations, examinations and inspections of the Real Property,
the Business, the Acquired Assets and the Assumed Liabilities and all
documentation relating to the Real Property, the Business, the Acquired Assets
and the Assumed Liabilities (the “Property Information”)
and has advised Buyer to review all matters of public record with respect to
the Real Property, the Business, the Acquired Assets and the Assumed
Liabilities.


 


(iii)                               Buyer
acknowledges and agrees that (A) the Due Diligence Materials and the
Property Information (including, without limitation, any environmental reports)
delivered or made available to Buyer and its representatives by the Seller
Parties may have been prepared by third parties and may not be the work product
of the Seller Parties (or any of them), (B) none of the Seller Parties has
made any independent investigation or verification of, or has any actual
knowledge of, the accuracy or completeness of the Property Information or the
Due Diligence Materials prepared by third parties and not the work product of
the Seller Parties (or any of them) and no representations, warranties or
covenants are made by Seller, any of the Seller Parties or any other Person
with respect thereto, (C) the Due Diligence Materials and Property
Information delivered or made available to Buyer and Buyer’s representatives
are furnished to each of them at the request, and for the convenience, of
Buyer, (D) except as otherwise expressly represented by Seller in this
Agreement, Buyer is relying solely on its own investigations, examinations and
inspections of the Real Property, the Business, the Acquired Assets and the
Assumed Liabilities and those of Buyer’s representatives, (E) the Due
Diligence Materials and Property Information shall be made available by Seller
on a confidential basis solely to accommodate and facilitate Buyer’s
investigations relating to the Real Property, the Business, the Acquired Assets
and the Assumed Liabilities, (F) the contents of the Due Diligence
Materials and Property Information shall not constitute representations,
warranties or covenants of Seller or any other Person, and (G) any further
distribution of the Due Diligence Materials and the Property Information is
subject to the confidentiality provisions of this Agreement and the 


 


31





















 


Confidentiality
Agreement.  In no event and under no
circumstances shall Buyer’s alleged or actual failure to receive or obtain
access to any Due Diligence Materials or Property Information extend the Due
Diligence Period or be deemed a breach of this Agreement by Seller.  In the event of Buyer’s alleged or actual
failure to receive or obtain access to any Due Diligence Materials or Property
Information, and notwithstanding anything in this Agreement to the contrary,
including, without limitation, Sections 12.02 and 13.15 hereof,
Buyer’s sole remedy shall be either to (x) waive any such alleged or actual
failure and close the transaction on the Closing Date, or (y) terminate this
Agreement prior to the expiration of the Due Diligence Period.  This Section 2.08(c) shall
survive any Closing and any termination of this Agreement.  Seller’s and Parent’s representations and
warranties set forth in this Agreement are qualified in their entirety by the Due
Diligence Materials and the Property Information.


 


(d)                                 Title Reports; Surveys.  During the Due Diligence Period, Buyer may
obtain, if Buyer so desires in its sole discretion, title reports or
commitments for the Real Property, together with the documents supporting
exceptions referenced therein (each, a “Title Report”),
and any current as-built surveys of any parcel or parcels of the Real Property
(each, a “Survey”); provided, however, that
except for the Title Commitment, which shall be made available to Buyer at
Seller’s expense prior to the Execution Date, all such Title Reports and
Surveys shall be obtained at Buyer’s sole cost and expense.


 


(e)                                  Permitted Title Exceptions.


 


(i)                                     Buyer
shall have until the expiration of the Due Diligence Period to object to any
exceptions to title to, or any Survey matters affecting, the Real Property or
any part thereof, which objection shall be made, if at all, by Buyer’s delivery
of written notice thereof to Seller, such notice to expressly state that Buyer
objects to such title exception pursuant to this Section 2.08(e) by
the expiration of the Due Diligence Period and which shall not be made to any
Permitted Title Exception.  In addition,
if Buyer obtains an update or continuation of its title insurance commitment
subsequent to the expiration of the Due Diligence Period, which update or
continuation discloses matters, other than Permitted Title Exceptions or
exceptions caused by Buyer, to which Buyer objects, Buyer shall, within three (3) Business
Days of Buyer’s receipt of such update or continuation, object to such title
exception upon written notice to Seller, such notice to expressly state that
Buyer objects to such title exception pursuant to this Section 2.08(e).  (Any written notice to Seller of an objection
by Buyer as described above in this Section 2.08(e)(i) to be
referred to herein as a “Title Objection Notice”.)  Upon Seller’s receipt of a Title Objection
Notice, Seller shall have three (3) Business Days to notify Buyer in
writing whether Seller elects to (A) seek to cure or to seek to acquire a
title endorsement over the exception and/or matter, if possible, on or before
the Closing, (B) terminate this Agreement, or (C) reduce the Purchase
Price by the amount of any liquidated claim, in which case Buyer shall have no
further objection thereto and shall close the transactions contemplated by this
Agreement on the Closing Date; provided, however, that in no event shall Seller
be obligated to seek to cure or seek to acquire a title endorsement over an
exception and/or matter or reduce the Purchase Price by the amount of any
liquidated claim in regards to an exception or matter controlled by the owners
of any Leased Real Property leased or subleased by Seller or any of its 


 


32





















 


Affiliates.  In the event Seller notifies Buyer that
Seller elects to terminate this Agreement, Buyer shall have three (3) Business
Days from Seller’s written notice thereof to elect by written notice to Seller
to irrevocably withdraw and waive its objection in writing and proceed to the Closing
pursuant to this Agreement without any further objection to any such exception
and/or matter.  In the event Seller
notifies Buyer that it elects either to seek to cure or to seek to acquire a
title endorsement over the exception and/or matter, if possible, on or before
the Closing, then so long as Seller accomplishes, in a reasonable manner, such
cure and/or title endorsement over such title exception and/or Survey matter on
or prior to the Closing, such exception and/or matter shall thereafter be
automatically deemed a Permitted Title Exception; provided, however, that
Seller’s failure, if any, to cure or to acquire a title endorsement over such
title exception and/or matter shall not constitute a breach of this Agreement
by Seller or any of its Affiliates and, in the event of such failure, Seller may
elect, by written notice to Buyer within three (3) Business Days after
Seller’s notice of such failure, to proceed pursuant to either clause (B) or
(C) of this Section 2.08(e)(i).  If Seller notifies Buyer that it elects to
reduce the Purchase Price by the amount of any liquidated claim, such exception
and/or matter shall thereafter be automatically deemed a Permitted Title
Exception.  If Seller notifies Buyer in
writing within the initial three (3) Business Day period that Seller does
not elect any of clauses (A), (B) or (C) of this Section 2.08(e)(i),
or Seller does not respond to Buyer within the initial three (3) Business
Day period or elects not to seek to cure the same, then Seller shall not be
deemed in breach of this Agreement and Buyer, notwithstanding anything in this
Agreement to the contrary, including, without limitation, Sections 12.02
and 13.15 hereof, as its sole remedy, may either (y) terminate this
Agreement by delivering a written termination notice to Seller, in which case
Buyer’s rights and obligations to purchase the Acquired Assets and this
Agreement shall be terminated and Seller may thereafter sell the Acquired
Assets to any third party without any obligation to Buyer whatsoever and Buyer
shall have timely terminated this Agreement and the Deposit Amount shall be
returned to Buyer in accordance with the provisions of Section 3.01
hereof, or (z) irrevocably withdraw and waive its objections in writing and
proceed pursuant to this Agreement.  In
addition, (1) any exceptions to title to, or Survey matters affecting, any
portion of the Real Property not timely objected to in writing by Buyer within
the aforesaid time period, (2) any exceptions to title to, or Survey
matters affecting, the Real Property or any part thereof timely objected to by
Buyer but cured and/or a title endorsement acquired over, if possible, in a
reasonable manner by Seller pursuant to this Section 2.08(e), (3) any
exceptions to title to, or Survey matters affecting, such portion of the Real
Property that are objected to by Buyer within the aforesaid time period, but
Seller elects not to seek to, or to, cure or acquire a title endorsement over
and Buyer irrevocably withdraws and waives its objections pursuant to this Section 2.08(e),
(4) all building codes and other applicable governmental laws, ordinances,
rules and regulations affecting any portion of the Real Property, (5) all
items set forth in the Title Commitment, and (6) all Permitted Liens shall
be “Permitted
Title Exceptions”.


 


(ii)                                  Notwithstanding
anything to the contrary set forth in this Agreement, Seller shall use
commercially reasonable efforts to obtain, at or prior to the Closing, the
termination and release of all Liens other than Permitted Liens.  Notwithstanding anything in this Section 2.08(e)(ii) to
the contrary, Seller shall have no 


 


33





















 


obligation to take any
action with respect to the termination or release of the Permitted Liens, or
liens arising as a result of any claim of a plaintiff in any litigation in
which Seller or any of its Affiliates is a named defendant.


 


(iii)                               Notwithstanding
anything in this Agreement to the contrary, Buyer may, upon written notice to
Seller at any time at or prior to the Closing, elect to accept such title to
the Real Property as Seller can convey, notwithstanding the existence of title
defects (other than with respect to any Permitted Liens).  In such event, (x) this Agreement shall
remain in full force and effect and unmodified, (y) the parties shall close the
transactions contemplated by this Agreement on the Closing Date, and (z) Buyer
shall not be entitled to any abatement of the Purchase Price or any claim for
damages or otherwise against Seller by reason of the existence of title defects
or alleged title defects.


 


(f)                                    Termination Prior to Expiration of the Due
Diligence Period.  During
the Due Diligence Period, Buyer may terminate this Agreement for any reason or
for no reason by notifying Seller in writing of Buyer’s election to terminate
this Agreement pursuant to this Section 2.08(f) no later than
5:00 p.m. (Eastern time) on the last day of the Due Diligence Period.  If Buyer timely terminates this Agreement
pursuant to this Section 2.08(f) and Buyer is not then in
material breach of its obligations under this Agreement and Seller has no
outstanding claims pursuant to Section 2.08(b) hereof, CWYP
shall transfer to Buyer the Deposit Amount net of all amounts payable by Buyer
under this Agreement and Buyer shall promptly deliver copies of the Due
Diligence Materials to Seller (or furnish Seller with a certificate to the
effect that Buyer has destroyed the Due Diligence Materials), together with a
waiver of all right, title and interest in and to the Business, the Acquired
Assets and the Real Property whereupon the parties thereafter shall have no
further rights, liabilities or obligations under this Agreement except as
otherwise provided in this Agreement.  If
Buyer does not notify Seller in writing of Buyer’s election to terminate this
Agreement pursuant to this Section 2.08(f) by 5:00 p.m. (Eastern
time) on the last day of the Due Diligence Period, Buyer is deemed to have
waived its right to terminate this Agreement pursuant to this Section 2.08(f).


 


ARTICLE 3



DEPOSIT


 


Section 3.01                            Deposit.


 


(a)                                  In
the event that Buyer waives its rights or otherwise fails to terminate this
Agreement pursuant to Section 2.08(f) hereof, Buyer shall
cause CWYP to deposit the Original Deposit Amount with Escrow Agent no later
than 5:00 p.m. (Eastern time) on the last day of the Due Diligence Period;
provided, however, in the event that Buyer elects the Extension, (i) on
the Extension Date, Buyer shall
deposit the Additional Deposit Amount with Escrow Agent and, if prior to the
expiration of the Due Diligence Period, shall cause CWYP to deposit the
Original Deposit Amount with Escrow Agent as a deposit against the Purchase
Price, (ii) the Additional Deposit Amount shall be included in the Deposit
Amount and the Deposit Amount shall total Six Million Dollars ($6,000,000)
from, and including, the Extension Date, and (iii) the Deposit Amount
shall become non-refundable to Buyer as of the Extension Date and delivered to
Seller forthwith as liquidated damages hereunder without demand, deduction,
offset or delay in the 


 


34





















 


event
that this Agreement is terminated for any reason other than as otherwise
expressly provided in this Agreement.  If
termination of this Agreement occurs prior to the expiration of the Due
Diligence Period and the Extension has not occurred, then CWYP shall transfer
the Deposit Amount to Buyer upon Seller’s receipt from Buyer of copies of all
Due Diligence Materials (or a certificate from Buyer to Seller to the effect
that Buyer has destroyed all Due Diligence Materials), together with a waiver
of all right, title and interest in and to the Business, the Acquired Assets
and the Real Property.  Except as
otherwise expressly provided in this Agreement, including, without limitation,
in Section 12.02 hereof, the Deposit Amount shall become
non-refundable to Buyer upon the expiration of the Due Diligence Period or as
of the Extension Date, if any, and shall be delivered to Seller as liquidated
damages hereunder forthwith without demand, deduction, offset or delay upon
termination of this Agreement on or after the expiration of the Due Diligence
Period or on or after the Extension Date, if any.


 


(b)                                 Upon
deposit of the Deposit Amount with Escrow Agent, Escrow Agent shall hold and
invest the Deposit Amount in: (i) United States government obligations or
obligations of agencies of the United States government which are guaranteed by
the United States government, (ii) interest-bearing certificates of
deposit of banks having capital and surplus in excess of Five Hundred Million
Dollars ($500,000,000) and rated at least AAA by Standard & Poor’s
Corporation and AAA by Moody’s Investors Service, Inc., (iii) a money
market fund registered under the Investment Company Act of 1940, as amended,
the portfolio of which is limited to the obligations described in clause (i) above,
or (iv) commercial paper rated at least P-1 by Moody’s Investors Service, Inc.
and A-1 by Standard & Poor’s Corporation.  Interest on the Deposit Amount shall be paid
to the party entitled to receive the Deposit Amount at such time as such party
receives the Deposit Amount, except that interest shall be credited against the
cash balance of the Purchase Price due at the Closing in the event of a
Closing.  The party receiving interest on
the Deposit Amount shall pay any income taxes payable thereon.


 


(c)                                  In
the event that a Closing hereunder is not consummated, the party with rights
pursuant to this Agreement to the Deposit Amount (such party, the “Demanding Party”) may make a written demand upon Escrow
Agent for payment of the Deposit Amount (a “Demand”).  Upon receipt of a Demand, Escrow Agent shall
furnish a copy thereof to the non-Demanding Party.  Unless the non-Demanding Party, upon written
notice to Escrow Agent and the Demanding Party within five (5) Business
Days of its receipt of a copy of a Demand, objects in writing to payment of the
Deposit Amount pursuant to the Demand (together with a detailed written
explanation of the reason for the objection), (i) the Deposit Amount
(without deduction, offset or delay) shall be transferred to the Demanding
Party, and (ii) if Seller is the Demanding Party the Deposit Amount shall
be transferred to Seller as liquidated damages hereunder without demand,
deduction, offset or delay, and Buyer (on behalf of itself and its Affiliates,
as applicable) hereby covenants and agrees to execute, acknowledge and deliver
to Seller any and all instruments and documents requested by Seller in order to
legally transfer such Deposit Amount to Seller and/or evidence such transfer
(this clause (ii) shall survive any Closing and any termination of this
Agreement).  If the non-Demanding Party
objects to payment of the Deposit Amount pursuant to the Demand (together with
a detailed written explanation of the reason for the objection), Escrow Agent
shall continue to hold the Deposit Amount in accordance with the provisions of
this Article 3 until otherwise directed by joint written
instructions of Seller and Buyer or final judgment of a court of competent
jurisdiction.  Escrow Agent may, however,
upon written notice of Seller and Buyer, deposit the Deposit Amount with the
clerk of the United 


 


35





















 


States
District Court for the Middle District of Florida or any state court located in
the 13th Judicial Circuit of the State of Florida.  ANY DEPOSIT AMOUNT PAID TO OR RETAINED BY
SELLER AS LIQUIDATED DAMAGES UNDER THIS AGREEMENT SHALL, EXCEPT AS OTHERWISE
SET FORTH IN THIS AGREEMENT, BE SELLER’S SOLE MONETARY REMEDY IF BUYER FAILS TO
CLOSE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  THE PARTIES HERETO EXPRESSLY AGREE AND
ACKNOWLEDGE THAT SELLER’S ACTUAL MONETARY DAMAGES IN SUCH EVENT WOULD BE
EXTREMELY DIFFICULT OR IMPRACTICABLE TO ASCERTAIN AND THAT THE LIQUIDATED
DAMAGES (I.E., THE VALUE OF THE DEPOSIT AMOUNT) STATED ABOVE REPRESENT THE
PARTIES’ REASONABLE ESTIMATE OF SUCH DAMAGES, EXCEPT AS OTHERWISE SET FORTH IN
THIS AGREEMENT.  THE PAYMENT OF ANY SUCH
DEPOSIT AMOUNT BY BUYER TO SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED AS A
FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO
SELLER.


 


Section 3.02                            Seller’s
Escrow Amount.


 


(a)                                  Escrow
Agent shall hold and invest Seller’s Escrow Amount, or a portion thereof, from
and after the Closing Date until November 30, 2006 (the “Escrow Period”) in: (i) United States government
obligations or obligations of agencies of the United States government which
are guaranteed by the United States government, (ii) interest-bearing
certificates of deposit of banks having capital and surplus in excess of Five
Hundred Million Dollars ($500,000,000) and rated at least AAA by Standard &
Poor’s Corporation and AAA by Moody’s Investors Service, Inc., (iii) a
money market fund registered under the Investment Company Act of 1940, as
amended, the portfolio of which is limited to the obligations described in
clause (i) above, or (iv) commercial paper rated at least P-1 by
Moody’s Investors Service, Inc. and A-1 by Standard & Poor’s
Corporation.  Interest on Seller’s Escrow
Amount shall be paid automatically without demand, deduction, offset or delay
to Seller within five (5) Business Days of the expiration of the Escrow
Period.  Seller shall pay any income
taxes on the interest.  Within five (5) Business
Days of the expiration of the Escrow Period, Escrow Agent shall deliver automatically
without demand, deduction, offset or delay to Seller any portion of Seller’s
Escrow Amount not subject to a reasonable, good faith Buyer’s Escrow Demand at
the expiration of the Escrow Period.


 


(b)                                 Except
as otherwise expressly provided in this Agreement, in the event that Seller
becomes liable to Buyer pursuant to any of Section 2.07 or Article 11
hereof during the Escrow Period, Escrow Agent shall deliver to Buyer the
portion of Seller’s Escrow Amount held by Escrow Agent that equals such liability
pursuant to the terms of this Article 3.  At any time during the Escrow Period, if
Buyer is entitled to payment by Seller pursuant to any of Section 2.07
or Article 11 hereof and Buyer has filed a judicial action in
relation thereof in the United States District Court for the Middle District of
Florida or any state court located in the 13th Judicial Circuit of the State of
Florida, then Buyer shall make a written demand detailing the claim and
attaching all available evidence and proof upon Escrow Agent for payment of the
amount of Seller’s liability from Seller’s Escrow Amount, or portion thereof
held by Escrow Agent (a “Buyer’s Escrow Demand”).  Upon receipt of a reasonable, good faith
Buyer’s Escrow Demand, Escrow Agent shall furnish a copy thereof to
Seller.  Unless Seller, upon written
notice to Escrow Agent within five (5) Business Days of its receipt of a
copy of a 


 


36





















 


Buyer’s
Escrow Demand, objects in writing to payment of the applicable portion of
Seller’s Escrow Amount pursuant to Buyer’s Escrow Demand, the applicable
portion of Seller’s Escrow Amount shall be transferred to Buyer.  If Seller objects to payment of the
applicable portion of Seller’s Escrow Amount pursuant to Buyer’s Escrow Demand,
Escrow Agent shall continue to hold the applicable portion of Seller’s Escrow
Amount in accordance with the provisions of this Article 3 until
otherwise directed by joint written instructions of Seller and Buyer or final
judgment of a court of competent jurisdiction. 
Escrow Agent may, however, upon written notice of Seller and Buyer,
deposit Seller’s Escrow Amount, or applicable portion thereof, with the clerk
of the United States District Court for the Middle District of Florida or any
state court located in the 13th Judicial Circuit of the State of Florida.


 


Section 3.03                            Escrow
Agent.


 


(a)                                  The
parties acknowledge that (i) Escrow Agent is acting solely as a
stakeholder at their request and for their convenience, (ii) Escrow Agent
shall not be deemed to be the agent of any of the parties, and (iii) Escrow
Agent shall not be liable to any of the parties for any act or omission on its
part unless taken or suffered in bad faith, in willful disregard of this
Agreement or involving gross negligence. 
Seller and Buyer shall jointly and severally indemnify and hold Escrow
Agent harmless from and against all costs, claims and expenses, including,
without limitation, reasonable attorneys’ fees, incurred in connection with the
performance of Escrow Agent’s duties hereunder, except with respect to actions
or omissions taken or suffered by Escrow Agent in bad faith, in willful
disregard of this Agreement or involving gross negligence.


 


(b)                                 Escrow
Agent shall not be bound by any modification to this Article 3
unless Escrow Agent shall have agreed to such modification in writing.  Escrow Agent shall be entitled to rely or act
upon any written notice, instrument or document reasonably believed by Escrow
Agent in good faith to be genuine and to be executed and delivered by the
proper person, and shall have no obligation to verify any statements contained
in any written notice, instrument or document or the accuracy or due
authorization of the execution of any written notice, instrument or document.


 


(c)                                  Escrow
Agent has acknowledged agreement to the foregoing provisions of this Article 3
by signing this Agreement on the signature page hereof.


 


ARTICLE 4



REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT


 


Except as
specifically set forth in the schedules attached hereto prepared by Seller or
Parent, Seller and Parent, jointly and severally, represent and warrant to
Buyer that all of the statements contained in this Article 4 are
true and correct as of the Execution Date and will be true and correct as of
the Closing Date as though made on the Closing Date, except as modified or
amended from time to time in writing to Buyer or as otherwise provided.  Each schedule prepared by Seller or
Parent attached hereto specifically refers to the particular section or
subsection of this Agreement to which the information set forth in such schedule relates;
any information set forth in a schedule attached hereto prepared by Seller
or Parent shall be deemed 


 


37





















 


to apply to
each other section or subsection thereof or hereof to which its
relevance is readily apparent on its face. 
No reference to or disclosure of any item or other matter set forth in
the schedules attached hereto prepared by Seller or Parent shall be construed
as an admission or indication that (i) such item or other matter is
material, that it could have a Material Adverse Effect or that such item or
other matter is required to be referred to or disclosed in such schedule, or (ii) such
agreement or document is enforceable or currently in effect or that there are
any obligations remaining to be performed or any rights that may be exercised
under such agreement or document.  No
disclosure in the schedules attached hereto prepared by Seller and Parent
relating to any possible breach or violation of any agreement, law or
regulation shall be construed as an admission or indication that any such
breach or violation exists or has actually occurred.  The schedules attached hereto prepared by
Seller or Parent are qualified in their entirety by any materials or
information provided to Buyer or any of its Affiliates by Seller or any of its
Affiliates as part of the due diligence process (including, without limitation,
the Due Diligence Materials and Property Information) or otherwise in connection
with this Agreement; provided, however, that in the event Buyer fails to review
any such material or information due to Seller’s gross negligence, such
material or information shall not qualify the schedules attached hereto.


 


Section 4.01                            Corporate
Existence and Power.


 


GTA is duly
organized, validly existing and in good standing under the laws of the State of
Maryland, and is duly authorized to conduct its business in the State of
Maryland.  Seller is duly organized,
validly existing and in good standing under the laws of the State of Florida,
and is duly authorized to conduct the Business in the State of Florida.  Parent is duly organized, validly existing
and in good standing under the laws of the State of Delaware, and is duly
authorized to conduct its business in the State of Delaware.  Holding Company is duly organized, validly
existing and in good standing under the laws of the State of Florida, and is
duly authorized to conduct its business in the State of Florida.  Condo Owner is duly organized, validly
existing and in good standing under the laws of the State of Florida, and is
duly authorized to conduct its business in the State of Florida.  Management Company is duly organized, validly
existing and in good standing under the laws of the State of Florida, and is
duly authorized to conduct its business in the State of Florida.


 


Section 4.02                            Corporate
Authorization.


 


The execution,
delivery and performance by GTA, Seller, Parent, Holding Company, Condo Owner
and Management Company of this Agreement and the consummation of the
transactions contemplated hereby by GTA, Seller, Parent, Holding Company, Condo
Owner and Management Company are within the corporate powers of GTA, Seller,
Parent, Holding Company, Condo Owner and Management Company and have been duly
authorized by all necessary corporate action on the part of GTA, Seller,
Parent, Holding Company, Condo Owner and Management Company; provided, however,
that Seller shall obtain the Final Board Approval (as defined herein) pursuant
to Section 6.05 hereof.  This
Agreement has been duly executed and delivered by GTA, Seller, Parent, Holding
Company, Condo Owner and Management Company, and, assuming the due
authorization, execution and delivery by Buyer, this Agreement constitutes a
valid and binding agreement of GTA, Seller, Parent, Holding Company, Condo
Owner and Management Company, enforceable against GTA, Seller, Parent, 


 


38





















 


Holding
Company, Condo Owner and Management Company in accordance with its terms,
except as (i) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium or other similar applicable laws affecting the
enforcement of creditors’ rights generally, and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.


 


Section 4.03                            Governmental
Authorizations.


 


The execution,
delivery and performance by GTA, Seller, Parent, Holding Company, Condo Owner
and Management Company of this Agreement and the consummation of the transactions
contemplated hereby require no material action by or in respect of, or material
filing with, any Governmental Authority, except as set forth in Schedule 4.03
attached hereto.


 


Section 4.04                            Noncontravention.


 


The execution,
delivery and performance by GTA, Seller, Parent, Holding Company, Condo Owner
and Management Company of this Agreement and the consummation of the
transactions contemplated hereby by GTA, Seller, Parent, Holding Company, Condo
Owner and Management Company, where applicable, do not and will not in
connection with the Closing, in a manner which has had, or could reasonably be
expected to constitute or result in, a Material Adverse Effect, (i) violate
any provision of the certificate of incorporation, bylaws or any other organizational
document of GTA, Seller, Parent, Holding Company, Condo Owner or Management
Company, (ii) assuming compliance with the matters referenced in Section 4.03
hereof, violate any applicable law, rule, regulation, judgment, injunction,
order or decree, or agreement with or condition imposed by any Governmental
Authority, (iii) assuming receipt of all Required Consents listed in Schedule 1.01(f) attached
hereto and except as disclosed in Schedule 4.04 attached hereto,
require any approval or consent or other action by any Person under, constitute
a breach or default under (or with notice, lapse of time, or both would result
in such a breach or default), or give rise to any right of termination,
material amendment, cancellation or acceleration of any right or obligation of
GTA, Seller, Parent, Holding Company, Condo Owner or Management Company or to a
loss of any benefit to which GTA, Seller, Parent, Holding Company, Condo Owner
or Management Company is entitled under any provision of any Material Contract
to which GTA, Seller, Parent, Holding Company, Condo Owner or Management
Company is a party or to which GTA, Seller, Parent, Condo Owner, Management
Company or any of the Acquired Assets is subject, or (iv) result in the
creation or imposition of any Lien on any of the Acquired Assets, except for
any Permitted Liens or Assumed Liabilities.


 


Section 4.05                            Capitalization;
Subsidiaries.


 


(a)                                  All
of Seller’s, Condo Owner’s and GH Securities’ equity interests are owned by
Holding Company, in each case as sole member or sole stockholder.  All of Holding Company’s equity interests are
owned by Parent.  Substantially all of
Parent’s equity interests are owned directly or indirectly by GTA.


 


(b)                                 Neither
Seller, Condo Owner nor GH Securities has or beneficially owns any Subsidiaries.


 


39





















 


Section 4.06                            Financial
Statements.


 


Set forth in Schedule 4.06
attached hereto are (i) true and correct copies of (A) the unaudited
balance sheet of the Business prepared by Westin for the quarter ended June 30,
2005 (the “Unaudited Balance Sheet”), (B) the
related unaudited statement of operations and cash flows of the Business
prepared by Westin for the quarter ended June 30, 2005 (the “Unaudited Income Statement”), (C) the financial statements
and footnotes of the Business filed in Seller’s quarterly report on Form 10-Q
for the quarter ended June 30, 2005, representing the Unaudited Balance
Sheet and Unaudited Income Statement adjusted for certain quarter-end
adjustments or reclassifications, (D) the unaudited balance sheet of the
Business prepared by Westin for the year ended December 31, 2004 (the “Historical Balance Sheet”), (E) the related unaudited
statement of operations and cash flows of the Business prepared by Westin for
the year ended December 31, 2004 (the “Historical
Financials”), and (F) the financial statements and footnotes of
the Business filed in Seller’s annual report on Form 10-K for the year
ended December 31, 2004, representing the Historical Balance Sheet and
Historical Financials adjusted for audit adjustments and certain year-end
adjustments or reclassifications, and (ii) copies of the unaudited balance
sheet and related unaudited statement of operations and cash flows of the
Business prepared by Westin for the month ended September 30, 2005.  The Unaudited Balance Sheet and the Unaudited
Income Statement, subject to certain quarter-end adjustments and
reclassifications and represented in final form in the statements and footnotes
provided pursuant to clause (i)(C) above, present fairly, in all material
respects, the financial condition of the Business as at such dates in
accordance with GAAP consistently applied subject to year-end adjustments.  The Historical Balance Sheet and Historical
Financials, subject to certain year-end adjustments and reclassifications and
represented in final form in the statements and footnotes provided pursuant to
clause (i)(F) above, present fairly, in all material respects, the
financial condition of the Business as of such dates in accordance with GAAP
consistently applied.  Neither Seller,
Parent nor any of their Affiliates makes any representation, warranty or
covenant with respect to the statements provided pursuant to clause (ii) above.


 


Section 4.07                            No
Undisclosed Liabilities.


 


To the Knowledge
of Seller, neither Seller nor any of its Affiliates has any material
Liabilities arising out of or relating to the Business, other than:


 


(a)                                  Liabilities
reflected on the Unaudited Balance Sheet, including to the extent reserved
therefor therein;


 


(b)                                 Liabilities
disclosed in Schedule 4.07 attached hereto;


 


(c)                                  Liabilities
incurred since the Balance Sheet Date which (i) resulted from transactions
in the ordinary course of business generally consistent with past practice and
are of a nature, type and magnitude generally consistent with the Liabilities
reflected on the Unaudited Balance Sheet after accounting for seasonal
fluctuations, (ii) were incurred in accordance with the terms of this
Agreement, or (iii) do not and will not materially impair the ability of
Seller or Parent to perform any of their respective obligations under this
Agreement; and


 


40





















 


(d)                                 Liabilities
otherwise disclosed in this Agreement, including, without limitation, in the
Due Diligence Materials, Property Information or schedules and exhibits attached
hereto.


 


Section 4.08                            Material
Contracts.


 


(a)                                  Schedule 4.08
attached hereto contains a true and correct list of all the Material
Contracts.  The Material Contracts
represent all of the material contracts and agreements entered into by Seller
or any of its Affiliates in connection with the Business or which otherwise materially
affect the Owned Real Property.


 


(b)                                 Seller
has made available to Buyer true and correct copies of all items listed in Schedule 4.08
attached hereto, including all amendments, supplements and modifications to
each Material Contract listed in Schedule 4.08 attached
hereto.  Except as disclosed in Schedule 4.08
attached hereto or as otherwise provided in this Agreement and the schedules
attached hereto, (i) all of the Material Contracts are in full force and
effect, (ii) each Material Contract is a valid and binding obligation of
Seller or its Affiliate, enforceable against Seller or its Affiliate in
accordance with its terms, and, to the Knowledge of Seller, each Material
Contract is a valid and binding obligation of the third party which is a party
thereto, enforceable against such third party in accordance with its terms, (iii) neither
Seller nor its Affiliate nor, to the Knowledge of Seller, any other party to a
Material Contract is in material default under, or in violation of, any of the
terms of any of the Material Contracts, and no event has occurred which, with
the passage of time or giving of notice or both, would result in Seller, or to
the Knowledge of Seller, any other party to any Material Contract, being in
material default under or in material violation of, any of the terms of any of
the Material Contracts, (iv) in respect of any Material Contract, neither
Seller nor its Affiliate nor any other party thereto has furnished any other
party thereto with a written notice of material default thereunder which
written notice pertains to a default which, as of the Execution Date, remains
uncured, and (v) no Material Contract requires the consent of any other
party thereto in connection with any of the transactions contemplated by this
Agreement.


 


Section 4.09                            Litigation.


 


Except as
disclosed in Schedule 4.09 attached hereto, there is no material action,
suit, investigation, inquiry, arbitration, claim or proceeding pending against
or affecting, or to the Knowledge of Seller, threatened against or relating to
Seller or any of its Affiliates with respect to the Business or any of the
Acquired Assets before or by any court or administrative agency or arbitrator
or any Governmental Authority, or which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay any of the transactions contemplated
by this Agreement and, to the Knowledge of Seller, there is no basis for any
such action, suit, investigation, arbitration, claim or proceeding.  Except as otherwise set forth in this
Agreement, neither Seller, Parent, Holding Company, Condo Owner,
GH Securities nor any of their Affiliates is subject to any judgment order
or decree which may have a Material Adverse Effect on the Acquired Assets or
the ability of the Business to acquire any property or conduct its business in
any area, or a Material Adverse Effect on the ability of GTA, Seller, Parent,
Holding Company, Condo Owner or Management Company to consummate any of the
transactions contemplated hereby.


 


41





















 


Section 4.10                            Compliance
with Laws, Court Orders and Permits.


 


(a)                                  Except
as disclosed in Schedule 4.10(a) attached hereto, to the
Knowledge of Seller, GTA, Seller, Parent, Holding Company, Condo Owner,
Management Company and their Affiliates have complied, and will seek to
continue to comply, in a timely manner and in all material respects with all
laws, rules and regulations, ordinances, judgments, decrees, orders, writs
and injunctions of all United States federal, state, local and foreign
governments and agencies thereof that affect the business, properties,
operations or assets of the Business or any of the Acquired Assets and to the
Knowledge of Seller there are no circumstances that, if not remedied or
modified, would prevent or materially interfere with such compliance in a
manner which could reasonably be expected to constitute or result in a Material
Adverse Effect.


 


(b)                                 Schedule 4.10(b) attached
hereto sets forth a list of all Permits currently held by Seller related to the
conduct of the Business.  To the
Knowledge of Seller, each such Permit has been duly obtained and is in full
force and effect.  Seller will seek to
continue to obtain and renew such Permits as may be reasonably practicable
until the Closing Date.  To the Knowledge
of Seller, (i) no notice of material violation of the terms of any Permit
related to the Acquired Assets has been received by Seller, which notice
pertains to a default which, as of the Execution Date, remains uncured, (ii) no
violation has been alleged by any Governmental Authority, which violation
remains, as of the Execution Date, uncured, and (iii) no proceeding is pending
or, to the Knowledge of Seller, threatened, to revoke or materially limit any
such Permit.


 


Section 4.11                            Real
Property.


 


(a)                                  Schedule 4.11(a) attached
hereto sets forth a true and correct list of all of the real property, together
with all undeveloped real property, all buildings and Improvements and all
easements and other rights and interests appurtenant thereto, which are
directly or indirectly owned by Seller or Condo Owner, without regard to
whether such real property is used solely in the operation or conduct of the
Business (the “Owned Real Property”).  Schedule 4.11(a) attached
hereto shall also include a general description of the Owned Real
Property.  To the Knowledge of Seller,
the Owned Real Property is not subject to any Liens other than Permitted Liens
or Liens otherwise disclosed in this Agreement. 
Other than those documents set forth as exceptions to title on the Title
Commitment, Seller has made available to Buyer true and correct copies of (i) all
material deeds, mortgages, deeds of trust, certificates of occupancy, title
insurance policies and surveys relating to the Owned Real Property and (ii) all
material Liens, occupancy agreements, possessory rights, options and rights of
first refusal, other than the Permitted Liens, relating to or affecting any
parcel of the Owned Real Property.


 


(b)                                 Other
than those documents set forth as exceptions to title on the Title Commitment, Schedule 4.11(b) attached
hereto sets forth a true and correct list of all of the real property leases,
subleases and other occupancy agreements (the “Leases”)
in effect as of the Execution Date under which Seller or any of its Affiliates
is a lessor, sublessor, lessee or sublessee regarding real property that will
be transferred to Buyer on the Closing Date (collectively, the “Leased Real Property”); provided, however, that the Rental
Pool Agreement shall not be considered a Lease for purposes of this
Agreement.  Seller has made available to
Buyer true and correct copies of all such Leases, including all material amendments,
modifications, assignments, supplements and renewals thereof.  To the Knowledge of Seller, 


 


42





















 


there
are no oral agreements in effect as to any Lease.  To the Knowledge of Seller, all such Leases
are valid, binding and enforceable in accordance with their terms, and are in
full force and effect free and clear of all Liens, other than Permitted
Liens.  There are no existing defaults by
Seller or any of its Affiliates beyond any applicable grace periods under such
Leases, except for defaults which, individually or in the aggregate, have not
had, and could not reasonably be expected to have, a Material Adverse Effect,
and neither Seller nor any of its Affiliates has received any notice of
default, except for defaults which have not had, and could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.  To the Knowledge of Seller,
there are no existing defaults by any landlord or tenant, as applicable, under
such Leases.  Except as set forth in Schedule 4.11(b) attached
hereto, (i) the consummation of the transactions contemplated by this
Agreement will not constitute a default, or give rise to a right of
termination, cancellation or acceleration of any right under, any of the Leases,
and (ii) no Lease requires the consent of the applicable landlord under
such Lease in order to transfer such Lease to Buyer in accordance with the
terms of such Lease.  Each guaranty, if
any, by Seller or its applicable Affiliate with respect to a Lease is in full
force and effect.


 


(c)                                  Other
than those documents set forth as exceptions to title on the Title Commitment
and except as set forth in Schedule 4.11(c) attached hereto,
neither Seller nor any of its Affiliates has assigned its interests under any
of the Leases, sublet any interest in any premises demised thereunder, or
otherwise encumbered its interest therein. 
Seller and its Affiliates have, and shall have as of the Closing Date,
good and valid leasehold title to the Leased Real Property not directly owned
by Seller or any of its Affiliates free and clear of all Liens, other than
Permitted Liens.


 


(d)                                 Neither
Seller nor any of its Affiliates has received any written notice from any
Governmental Authority with jurisdiction that any certificate of occupancy or
Permits with respect to the buildings, structures and improvements on any of
the Owned Real Property and the occupancy and use thereof have not been
obtained and are not in full force and effect, and there is no presently pending
or, to the Knowledge of Seller, threat of modification, suspension or
cancellation of any of the same which has had, or could reasonably be expected
to have, a Material Adverse Effect.


 


(e)                                  Except
as set forth in Schedule 4.11(e) attached hereto, neither
Seller nor any of its Affiliates has received written notice from any
Governmental Authority with jurisdiction of any outstanding condemnation,
expropriation or other proceedings in eminent domain pending, proposed or
threatened with respect to any of the Real Property.


 


(f)                                    Neither
Seller nor any of its Affiliates has given any notice to any landlord under any
of the Leases indicating that Seller or any of its Affiliates will not exercise
any expansion or renewal options under the Leases, except such non-extension or
non-renewal of such options that could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


(g)                                 Except
as set forth in Schedule 4.11(g) attached hereto, there are no
tax reduction proceedings pending in respect of the Owned Real Property of
which Seller has received notice from the applicable taxing authority.


 


43





















 


(h)                                 Neither
Seller nor any of its Affiliates has received any written notice of default
from any other party to any reciprocal easement agreement, which default
remains uncured, as of the Execution Date.


 


Section 4.12                            Intellectual
Property.


 


(a)                                  To
the Knowledge of Seller, Schedule 4.12(a) attached hereto sets
forth a true and correct list of all United States, state and foreign
Intellectual Property owned by Seller and used in the Business, including all: (i) patents
and patent applications, (ii) trademark and service mark registrations
(including Internet domain name registrations and “Innisbrook”), trademark and
service mark applications and material unregistered trademarks and service
marks, and (iii) copyright registrations, copyright applications and
material unregistered copyrights.


 


(b)                                 To
the Knowledge of Seller, Schedule 4.12(b) attached hereto
lists all material Software which is licensed, leased or otherwise used in or
by the Business, and all material Software owned by Seller (“Proprietary Software”).


 


(c)                                  Schedule 4.12(c) attached
hereto sets forth a true and correct list of all agreements granting or
obtaining any right to use or practice any rights under any material Intellectual
Property to which Seller is a party or otherwise bound, as licensee or licensor
thereunder, including, without limitation, license agreements, settlement
agreements and covenants not to sue (collectively, the “License
Agreements”).


 


(d)                                 To
the Knowledge of Seller:


 


(i)                                     Seller
owns or possesses adequate licenses or other legal rights to use all
Intellectual Property owned or used by Seller, free and clear of all liens or
other encumbrances that would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;


 


(ii)                                  any
Intellectual Property owned or used by Seller and its Affiliates that is
material to the Business has been duly maintained, is valid and subsisting, in
full force and effect and has not been cancelled, expired or abandoned;


 


(iii)                               neither
Seller nor any of its Affiliates has received notice from any third party
regarding any actual or potential infringement by Seller or any of its
Affiliates of any intellectual property of such third party;


 


(iv)                              neither
Seller nor any of its Affiliates has received notice from any third party
regarding any assertion or claim challenging the validity of any Intellectual
Property owned by Seller or used in the Business; and


 


(v)                                 no
third party is misappropriating, infringing, diluting or violating any
Intellectual Property owned by Seller.


 


(e)                                  Seller
has not licensed or sublicensed its rights in any material Intellectual Property,
or received or been granted any such rights, other than pursuant to the License



 


44





















 


Agreements
and the Contracts, including, without limitation, the Westin Management
Agreement.


 


(f)                                    Each
License Agreement is a valid and binding obligation of Seller or its Affiliate
party thereto, enforceable in accordance with its terms, and, to the Knowledge
of Seller, there exists no event or condition which will result in a violation
or breach of, or constitute a default by Seller or its Affiliate party thereto
or, to the Knowledge of Seller, the other party or parties thereto, under such
License Agreement.


 


Section 4.13                            Finders’
Fees.


 


Except for
Houlihan Lokey or its Affiliates, whose fees shall be paid by Seller or any of
its Affiliates at the Closing, there is no investment banker, broker, finder,
financial advisor or other intermediary which is or might be entitled to any
fee, commission or compensation from, or which has been retained by or is
authorized to act on behalf of, Seller or any of its Affiliates in connection
with any of the transactions contemplated by this Agreement.  In the event of any claims therefor, Seller
shall indemnify, defend and hold Buyer and its Affiliates harmless from and
against all such claims, losses, costs or expenses, including, without
limitation, reasonable attorneys’ fees, arising as a result thereof.


 


Section 4.14                            Employees.


 


(a)                                  Schedule 4.14
attached hereto sets forth a true and correct list of all Employees of the
Business as of September 20, 2005, as well as certain employees of Westin,
Troon and other third parties as set forth in Schedule 4.14
attached hereto.


 


(b)                                 The
employment of no managers of the Business has been terminated, voluntarily or
involuntarily, since September 21, 2005.


 


Section 4.15                            Employee
Benefit Plans.


 


(a)                                  Schedule 4.15(a) attached
hereto contains a true and correct list of each material employment, bonus,
deferred compensation, incentive compensation, stock purchase, stock option,
stock appreciation right or other stock-based incentive, severance,
change-in-control, or termination pay, hospitalization or other medical,
retiree medical, disability, life or other insurance, supplemental unemployment
benefits, profit-sharing, pension, retention, or retirement plan, program,
agreement or arrangement and each other material employee benefit plan,
program, agreement or arrangement, sponsored, maintained or contributed to or
required to be contributed to by Seller, or by any trade or business, whether
or not incorporated (an “ERISA Affiliate”),
that together with Seller would be deemed a “single employer” within the
meaning of Section 4001(b)(1) of ERISA, for the benefit of any
Employee or former employee of the Business, whether formal or informal and
whether legally binding or not (the “Plans”).  Schedule 4.15(a) attached
hereto includes each of the Plans, if any, that is an “employee welfare benefit
plan” or “employee pension benefit plan” as such terms are defined in Sections
3(1) and 3(2) of ERISA (such plans collectively, the “ERISA Plans”).  Except
as disclosed in Schedule 4.15(a) attached hereto, none of
Seller nor any ERISA Affiliate has any formal plan or commitment, whether
legally binding or not, to create any additional Plan or modify or change any
existing Plan that would affect any Employee or former employee or director of
the Business 


 


45





















 


in a
manner which could reasonably be expected to constitute or result in a Material
Adverse Effect.


 


(b)                                 With
respect to each of the Plans, Seller shall make available to Buyer upon Buyer’s
request true and correct copies of each of the following documents, as
applicable:


 


(i)                                     a
copy of the Plan document, including all amendments thereto, for each written
Plan or a written description of any Plan that is not otherwise in writing;


 


(ii)                                  a
copy of the annual report or Internal Revenue Service Form 5500 Series, if
required under ERISA, with respect to each ERISA Plan for the last two Plan
years ending prior to the Execution Date; and


 


(iii)                               all
contracts relating to the Plans with respect to which Buyer may have any
liability, including insurance contracts, investment management agreements,
subscription and participation agreements and record keeping agreements.


 


(c)                                  To
the Knowledge of Seller, no liability under Title IV of ERISA has been incurred
by Seller or any ERISA Affiliate since the effective date of ERISA that has not
been satisfied in full, and no condition exists that presents a material risk
to Seller or any ERISA Affiliate of incurring any liability under such Title,
other than liability for premiums due to the Pension Benefit Guaranty
Corporation (the “PBGC”), which
payments have been or will be made when due.


 


(d)                                 To
the Knowledge of Seller, none of Seller, any ERISA Affiliate, any of the ERISA
Plans, any trust created thereunder nor any trustee or administrator thereof
has engaged in a transaction or has taken or failed to take any action in
connection with which Seller or any ERISA Affiliate could be subject to any
material liability for either a civil penalty assessed pursuant to Section 409
or 502(i) of ERISA or a tax imposed pursuant to Section 4975, 4976 or
4980B of the Code.


 


(e)                                  No
Plan is a “multi-employer pension plan”, as such term is defined in Section 3(37)
of ERISA.


 


(f)                                    To
the Knowledge of Seller, each of the Plans has been operated and administered
in all material respects in accordance with applicable laws, including, but not
limited to, ERISA and the Code.


 


(g)                                 Each
of the ERISA Plans that is an “employee pension benefit plan” as defined in Section 3(2) of
ERISA that is intended to qualify under Section 401(a) of the Code
has (i) received a favorable determination letter that such Plan satisfied
the requirements of the Tax Reform Act of 1986 and the statutes referenced in
IRS Announcement 2001 104 and any amendments thereto or (ii) has submitted
a request for a determination within the applicable remedial amendment period.


 


(h)                                 No
Plan provides benefits, including, without limitation, death or medical
benefits whether or not insured, with respect to any Employee or former
employee of Seller or any ERISA Affiliate after retirement or other termination
of service other than (i) coverage 


 


46





















 


mandated
by applicable laws or (ii) benefits the full direct cost of which are
borne by the Employee or former employee or beneficiary thereof.


 


(i)                                     Except
as set forth in Schedule 4.15(i) attached hereto, the
consummation of the transactions contemplated by this Agreement will not,
either alone or in combination with any other event, (i) entitle any
Employee or former employee, officer, director or consultant of Seller or any
ERISA Affiliate to severance pay, unemployment compensation or any other
similar termination payment, or (ii) accelerate the time of payment or
vesting, or increase the amount of, or otherwise enhance, any benefit due to
any such employee, officer, director or consultant.


 


(j)                                     Except
as set forth in Schedule 4.15(j) attached hereto, there are no
pending, or to the Knowledge of Seller, threatened or anticipated claims by or
on behalf of any Plan, by any employee or beneficiary under any such Plan or
otherwise involving any such Plan other than routine claims for benefits.


 


Section 4.16                            Environmental
Matters.


 


Except as set
forth in any environmental report made available to Buyer or disclosed in Schedule 4.16
attached hereto or other matters which may be customary in the operation of
golf courses or could not reasonably be expected to constitute or result in a
Material Adverse Effect:


 


(a)                                  no
written claim, notice, request for information, order, complaint or penalty has
been sent to or, to the Knowledge of Seller, is threatened against, Seller or
any of its Affiliates relating to the Business and there are no judicial,
administrative or other actions, suits or proceedings pending or threatened
against Seller which relate to the Acquired Assets and allege a violation of or
a liability under any Environmental Law, in each case arising out of any Environmental
Law or relating to the disposal or Release of any Hazardous Substances and
relating to (i) Seller or any of its Affiliates or (ii) any other
Person whose liability for such matter Seller or any of its Affiliates has
assumed or retained contractually or by operation of law;


 


(b)                                 to
the Knowledge of Seller, Seller has received no written notice that, in
relation to the Business or the Acquired Assets, Seller or any of its
Affiliates is not in material compliance with applicable Environmental Laws and,
to the Knowledge of Seller, there are no facts or circumstances that would
materially increase the cost of maintaining such compliance in the future;


 


(c)                                  to
the Knowledge of Seller, neither Seller nor any of its Affiliates has Released
or threatened to Release a Hazardous Substance at (i) any parcel of Owned
Real Property or (ii) any other location as a result of the operation of
the Business or with respect to which Seller or any of its Affiliates has
assumed or retained liability contractually or by operation of law relating to
the Business, which in the case of either (i) or (ii) is reasonably
likely to result in a material Environmental Liability, and neither Seller nor
any of its Affiliates has filed any notice with any Governmental Authority under
any Environmental Law reporting a Release or threatened Release of any
Hazardous Substance relating to the Business;


 


(d)                                 Seller
has made available for inspection by Buyer copies of all material audits,
reports (including any Phase I Environmental Site Assessments and Phase II 


 


47





















 


Environmental
Site Assessments), studies, analyses, tests, or monitoring to the extent
addressed to Seller and in the possession of Seller and its Affiliates and
relating to (i) Hazardous Substances in, on, beneath or adjacent to any
property where any portion of the Business is operated or (ii) any
compliance with or Liability under Environmental Law of Seller or any of its
Affiliates relating to the Business;


 


(e)                                  without
in any way limiting the generality of the foregoing, (i) all on-site and
off-site locations where, with respect to the Business, Seller or any of its
Affiliates has stored, disposed or arranged for the disposal of Hazardous
Substances are identified in Schedule 4.16(e) attached hereto,
and (ii) all underground storage tanks located on the Owned Real Property
are identified in Schedule 4.16(e) attached hereto, except as
set forth in any environmental report made available to Buyer; and


 


(f)                                    to
the Knowledge of Seller, Seller has received no written notice that, during the
time period of Parent’s lender relationship with GHR, GHR was not in material compliance
with applicable Environmental Law in relation to the Business or the Acquired
Assets.


 


Section 4.17                            Labor
Matters.


 


(a)                                  Except
as set forth in Schedule 4.17 attached hereto, (i) there are
no collective bargaining agreements or agreed upon work rules or practices
in effect relating to the Employees (other than any employee handbook,
workplace publication or similar materials) or any other contract or commitment
to any labor union or association representing any Employee, (ii) no labor
union or association or collective bargaining agent represents or claims to
represent any Employee, (iii) there is no organizational effort currently
being made or, to the Knowledge of Seller, threatened to organize any Employee,
nor was there any within the two (2) years prior to the Execution Date, (iv) there
has been no strike, slowdown, work stoppage, lockout, arbitration or other
material work-related dispute involving any Employee, and no such action is now
pending or affecting the Business, nor, to the Knowledge of Seller, is any such
action threatened, (v) there are no grievances arising out of any
collective bargaining or similar agreement or other grievance procedure, (vi) neither
Seller nor any of its Affiliates has received notice of the intent of any
national, federal, state, local or foreign agency responsible for the
enforcement of labor or employment laws to conduct an investigation with
respect to or relating to the Business, and no such investigation is in
progress, (vii) no proceeding against Seller or any of its Affiliates
relating to the Business, or controversy or dispute between Seller or any of
its Affiliates and any Employee or former employee, or any applicant for
employment in the Business, has been filed or, to the Knowledge of Seller,
threatened, relating to the alleged violation of any law pertaining to labor
relations or employment matters, including any charge, complaint or petition
filed by any Employee or former employee of the Business or applicant for
employment in the Business or labor organization or labor union with the
National Labor Relations Board, the Equal Employment Opportunity Commission, the
United States Department of Labor or any other Governmental Authority, and (viii) there
are no written personnel policies, rules or procedures applicable to
Employees, other than any employee handbook, workplace publication or similar
material and the items set forth in Schedule 4.17 attached hereto,
true and correct copies of which shall be made available to Buyer.  To the Knowledge of Seller, Seller and its
Affiliates are, and have at all times been, in compliance in all material
respects with the 


 


48





















 


terms
and requirements of, and are not currently in default in any material respect
under, (i) any collective bargaining agreement or other labor union
contract covering any Employee or (ii) any applicable laws respecting
employment and employment practices, terms and conditions of employment, wages,
hours of work and occupational safety and health, and are not engaged in any
unfair labor practices as defined in the National Labor Relations Act or other
applicable law, ordinance or regulation with respect to any Employee or former
employee of the Business.


 


(b)                                 Neither
Seller nor any of its Affiliates has incurred any liability or obligation under
the Worker Adjustment and Retraining Notification Act (“WARN”)
or similar state or local laws, including with respect to the provision of any
notice of any plant closing or mass layoff taking place up to and including the
Closing Date, which remains unpaid or unsatisfied or which has not been accrued
and which relates to any Employee or former employee of the Business.  Neither Seller nor any of its Affiliates has
ordered a plant closing or mass layoff (as defined in WARN) in the past six (6) months
involving any Employee or former employee of the Business nor has the Business
laid off more than forty-nine (49) full-time employees accounting for thirty-three
percent (33%) or more of the total number of employees at any single site of
employment in any thirty (30) day period during the last twelve (12) months.


 


Section 4.18                            Tax
Matters.


 


Except as set
forth in Schedule 4.18 attached hereto or other matters which could
not reasonably be expected to constitute or result in a Material Adverse
Effect:


 


(a)                                  Seller
is and always has been classified as a “disregarded entity” for United States
federal, state and local income Tax purposes;


 


(b)                                 Seller
has duly filed, or has had filed, all Tax Returns required to be filed by or in
respect of Seller in a timely manner, and, to the Knowledge of Seller, all such
Tax Returns are true and correct in all material respects;


 


(c)                                  to
the Knowledge of Seller, Seller has duly paid or has had paid, all Taxes
required to be paid by or in respect of Seller in a timely manner, whether or
not shown or required to be shown on any Tax Return or has adequate reserves to
pay any contested Taxes;


 


(d)                                 there
is no outstanding request, agreement, waiver or consent providing for an
extension of the statutory period of limitations with respect to any Taxes or
Tax Returns of or in respect of Seller, and no power of attorney granted by or
in respect of Seller with respect to any Tax matter relating to the Business or
the Acquired Assets is currently in force;


 


(e)                                  no
Tax liens (except for statutory liens for current Taxes not yet due and
payable) on any of the Acquired Assets have been filed and there is no action,
suit, proceeding, investigation, audit or claim now pending or threatened
against or in respect of Seller with respect to any Tax or Tax Return nor are
there any Taxes for which Seller could be liable under Treasury Regulation Section 1.1502-6
or any comparable provision of state, local or foreign Tax law;


 


(f)                                    Seller
is not a party to or otherwise bound by any agreement or understanding
providing for the allocation or sharing of Taxes, nor does Seller have any 


 


49





















 


obligation
or liability under any such agreement or understanding to which it was once a
party or otherwise bound; and


 


(g)                                 Seller
is not a “foreign person” as defined in Section 1445(b)(2) of the
Code.


 


Section 4.19                            Accounts
Receivable.


 


All of the
Accounts Receivable of Seller and its Affiliates that are reflected in the
Unaudited Balance Sheet have been recorded, net of reserves, in accordance with
GAAP, and all Accounts Receivable that have arisen since the date of the
Unaudited Balance Sheet, have arisen only from bona fide transactions with
independent third parties in the ordinary course of business consistent with
past practice.  The Accounts Receivable
used in the preparation of the Statement of the Closing Date Working Capital shall
be net of the respective reserves used in the preparation of the Statement of
the Closing Date Working Capital shown thereon, which reserves shall be
adequate and calculated in accordance with GAAP in a manner generally
consistent with past practice.  Subject
to such reserves, to the Knowledge of Seller, each of the Accounts Receivable
used in the preparation of the Statement of the Closing Date Working Capital is
expected to be collectible generally consistent with the history of collections
for the Business during the prior twelve (12) month period.


 


Section 4.20                            Insurance.


 


(a)                                  Schedule 4.20
attached hereto contains a true and correct list of all policies of property,
fire and casualty, product liability, workers’ compensation and other forms of
insurance owned or held by Seller or any of its Affiliates in relation to the
Business or the Acquired Assets.  As of
the Execution Date, Seller is not aware of any occurrence or incident that
could reasonably be expected to give rise to a claim for insurance by Seller or
any of its Affiliates under any “claims made” insurance policy that has not
been reported to the primary carrier and, if applicable, excess carrier issuing
any such policy.


 


(b)                                 Seller
and its Affiliates have paid all premiums due and, to the Knowledge of Seller,
have otherwise performed all of their respective material obligations under the
insurance policies listed in Schedule 4.20 attached hereto, except
to the extent that any failure to pay or perform thereunder could not
reasonably be expected to constitute or result in a Material Adverse
Effect.  Neither Seller nor any of its
Affiliates has received any notice of cancellation or any other indication that
any material insurance policy listed in Schedule 4.20 attached
hereto is no longer in full force and effect or will not be renewed or that the
issuer of any such policy is not willing or able to perform its obligations
thereunder.  To the Knowledge of Seller,
there is no material claim asserted by Seller or any of its Affiliates pending
under the insurance policies listed in Schedule 4.20 attached
hereto as to which coverage has been finally denied by the underwriters of any
such policy or arrangement.


 


Section 4.21                            Transactions
with Affiliates.


 


As of the
Execution Date, no Material Contracts or material transactions relating to the
Business, other than employment or consulting contracts, between any Employee,
partner, 


 


50





















 


limited
partner, officer or director of Seller or any of their relatives, on the one
hand, and Seller or any of its Affiliates, on the other hand, existed.


 


Section 4.22                            Knowledge
of Westin.


 


At any time
prior to the Closing, upon reasonable prior written notice to Seller, Buyer is
free to meet and confer with Westin respecting the Business and the Westin
Management Agreement, subject to the availability of Westin and Seller’s right
to attend all such meetings and conferences; provided, however, Seller’s
attendance shall not be a condition to Buyer’s right to any such meeting or
conference if Seller has received from Buyer reasonable prior written notice of
such meeting or conference, together with the full agenda for such meeting or
conference.


 


Section 4.23                            Knowledge
of Troon.


 


At any time
prior to the Closing, upon reasonable prior written notice to Seller, Buyer is
free to meet and confer with Troon respecting the Business and the Troon
Management Agreement, subject to the availability of Troon and Seller’s right
to attend all such meetings and conferences; provided, however, Seller’s
attendance shall not be a condition to Buyer’s right to any such meeting or
conference if Seller has received from Buyer reasonable prior written notice of
such meeting or conference, together with the full agenda for such meeting or
conference.


 


ARTICLE 5



REPRESENTATIONS AND WARRANTIES OF BUYER


 


Buyer and
Buyer’s Guarantor, if any, represent and warrant to GTA, Seller, Parent,
Holding Company, Condo Owner and Management Company that all of the statements
contained in this Article 5 are true and correct as of the
Execution Date, and will be true and correct in all material respects as of the
Closing Date as though made on the Closing Date.


 


Section 5.01                            Corporate
Existence and Power.


 


Buyer is a
limited liability company duly formed, validly existing and in good standing
under the laws of its jurisdiction of formation, and is duly authorized to
conduct the business in which it is engaged and to own and use the properties
owned and used by it and has, in all material respects, all the permits
required to carry on its business as now conducted.


 


Section 5.02                            Corporate
Authorization.


 


The execution,
delivery and performance by Buyer of this Agreement and the consummation of the
transactions contemplated hereby by Buyer are within the corporate powers of
Buyer and have been duly authorized by all necessary corporate action on the
part of Buyer.  This Agreement has been
duly executed and delivered by Buyer, and assuming the due authorization,
execution and delivery by GTA, Seller, Parent, Holding Company, Condo Owner and
Management Company, this Agreement constitutes a valid and binding obligation
of Buyer, enforceable against Buyer in accordance with its terms, except as (i) the
enforceability hereof or thereof may be limited by bankruptcy, insolvency,
moratorium or other similar applicable laws 


 


51





















 


affecting the
enforcement of creditors’ rights generally, and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.


 


Section 5.03                            Governmental
Authorizations.


 


The execution,
delivery and performance by Buyer of this Agreement and the consummation of the
transactions contemplated hereby require no material action by or in respect
of, or material filing with, any Governmental Authority, except as set forth in
Schedule 5.03 attached hereto.


 


Section 5.04                            Noncontravention.


 


The execution,
delivery and performance by Buyer of this Agreement and the consummation of the
transactions contemplated hereby by Buyer do not and will not (i) violate
any provision of the organizational documents of Buyer, (ii) assuming
compliance with the matters referred to in Section 5.03 hereof,
violate any applicable law, rule, regulation, judgment, injunction, order or
decree, or agreement with or condition imposed by any Governmental Authority, (iii) require
any approval or consent or other action by any Person under, constitute a
default under (or with notice, lapse of time, or both would result in such a
breach or default), or give rise to any right of termination, material
amendment, cancellation or acceleration of any right or obligation of Buyer or
to a loss of any benefit to which Buyer is entitled under any provision of any
agreement or other instrument binding upon Buyer, (iv) result in the
creation or imposition of any lien on any Acquired Asset after the Closing
Date, or (v) result in a breach or violation of any of the terms or
conditions of, constitute a default under, or otherwise cause an impairment or
a revocation of, any permit to be utilized in the operation of the Business
after the Closing Date.


 


Section 5.05                            Financing.


 


As of the
expiration of the Due Diligence Period, Buyer shall provide Seller with
evidence of Buyer’s efforts and progress with respect to securing the financing
necessary to consummate the transactions contemplated by this Agreement and any
ancillary agreements to which Buyer shall be a party.  As of the Closing, Buyer shall have
sufficient unrestricted funds available or committed lines of credit or other
financing necessary to consummate the transactions contemplated by this
Agreement and any ancillary agreements to which Buyer shall be a party.  There shall be no financing contingency for
the benefit of Buyer.  Notwithstanding
anything to the contrary set forth in this Agreement, the parties acknowledge
and agree that it shall not be a condition to the obligations of Buyer to
consummate the transactions contemplated hereby that Buyer have sufficient
funds for payment of the Purchase Price and any adjustments thereto.


 


Section 5.06                            Finders’
Fees.


 


There is no
investment banker, broker, finder, financial advisor or other intermediary
which is or might be entitled to any fee, commission or compensation from, or
which has been retained by or is authorized to act on behalf of, Buyer or any
of its Affiliates in connection with any of the transactions contemplated by
this Agreement.  In the event of any
claims by any investment banker, broker, finder, financial advisor or other
intermediary which is or might be 


 


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entitled to
any fee, commission or compensation from, or which has been retained by or is
authorized to act on behalf of, Buyer or any of its Affiliates in connection
with any of the transactions contemplated by this Agreement, Buyer shall
indemnify, defend and hold Seller and its Affiliates harmless from and against
all such claims, losses, costs or expenses, including, without limitation,
reasonably attorneys’ fees, arising as a result thereof.


 


Section 5.07                            No
Undisclosed Liabilities.


 


Neither Buyer
nor any Affiliate of Buyer has any material liabilities arising out of or
relating to Buyer’s business, other than:


 


(a)                                  liabilities
disclosed in Schedule 5.07 attached hereto; and


 


(b)                                 liabilities
incurred in connection with the terms of this Agreement which do not and will
not materially impair the ability of Buyer to perform any of its respective
obligations under this Agreement.


 


Section 5.08                            Litigation.


 


Except as
disclosed in Schedule 5.08 attached hereto, there is no action,
suit, investigation, inquiry, arbitration, claim or proceeding pending against
or affecting, or, to the Knowledge of Buyer, threatened against or affecting,
its business or assets before or by any court or administrative agency or
arbitrator or any Governmental Authority, which may have a material adverse effect
on the Buyer, or which in any manner challenges or seeks to prevent, enjoin,
alter or materially delay any of the transactions contemplated by this
Agreement and, to the Knowledge of Buyer, there is no basis for any such
action, suit, investigation, arbitration, claim or proceeding.  Except as otherwise set forth in this
Agreement, Buyer is not subject to any judgment order or decree which may have
a material adverse effect on the Acquired Assets or the ability of the Business
to acquire any property or conduct its business in any area after the Closing
Date, or an adverse effect on the ability of Buyer to consummate this Agreement
or any of the transactions contemplated hereby.


 


Section 5.09                            Compliance
with Laws, Court Orders and Permits.


 


Buyer has
complied, and will continue to comply, in a timely manner and in all material
respects, with all laws, rules and regulations, ordinances, judgments,
decrees, orders, writs and injunctions of all United States federal, state,
local and foreign governments and agencies thereof that will affect the
business, properties, operations or assets of Buyer or any of the Acquired
Assets after the Closing Date and, to the Knowledge of Buyer, there are no
circumstances that, if not remedied or modified, would prevent or materially
interfere with such compliance.


 


Section 5.10                            No
Liability Under Confidential Information Memorandum.


 


No statement
in the Confidential Information Memorandum, any other document provided to
Buyer or any of its agents or representatives by Houlihan Lokey or any of its
Affiliates or any other document provided or made available as a part of the
Due Diligence Materials or Property Information constitutes a representation,
warranty or covenant of GTA, Seller, Parent, Holding Company, Condo Owner,
Management Company or any of their 


 


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Affiliates or
any other Person.  Neither the Confidential
Information Memorandum, any other document provided to Buyer by Houlihan Lokey
or any of its Affiliates or any other document provided or made available as a
part of the Due Diligence Materials or Property Information nor any statement
therein may result in a breach or default by GTA, Seller, Parent, Holding
Company, Condo Owner or Management Company pursuant to this Agreement or the
transactions contemplated hereby.  Seller’s
and Parent’s express representations and warranties set forth in this Agreement
are qualified in their entirety by the Due Diligence Materials and the Property
Information.


 


Section 5.11                            As-Is
Sale; Release.


 


(a)                                  Seller Disclaimer.  Other than as specifically set forth in
this Agreement, each of the Seller Parties hereby disclaims the making of any
representations or warranties, express or implied, regarding the Acquired
Assets, Assumed Liabilities, Business or Real Property or any part thereof or
any matters affecting the Acquired Assets, Assumed Liabilities, Business or Real
Property or any part thereof, including, without limitation, the physical
condition of the Acquired Assets, Assumed Liabilities, Business or Real
Property or any part thereof, title to or boundaries of the Acquired Assets,
Assumed Liabilities, Business or Real Property or any part thereof, pest
control, soil conditions, hazardous wastes, toxic substances or other
environmental matters, compliance with building, health, safety, land use or
zoning laws, regulations and orders, structural and other engineering
characteristics, traffic patterns and all other information pertaining to the
Acquired Assets, Assumed Liabilities, Business or Real Property or any part
thereof.  Moreover, Buyer acknowledges
that (i) Buyer is a sophisticated investor, knowledgeable and experienced
in the financial and business risks attendant with an investment in real
property and capable of evaluating the merits and risks of entering into this
Agreement and acquiring the Acquired Assets, Assumed Liabilities, Business and
Real Property, (ii) except with respect to the representations and
warranties expressly contained in this Agreement and in the certificates or
other writings delivered by Seller pursuant to Article 10 hereof,
Buyer has entered into this Agreement with the intention of making and relying
upon its own, or its experts’, investigation of the physical, environmental,
economic, and legal condition of the Acquired Assets, Assumed Liabilities,
Business and Real Property or any part thereof, including, without limitation,
any mechanical, electrical, HVAC, life support, fire safety, fire control and
other systems, and all documents relating to the leasing, management and
operation of the Acquired Assets, Assumed Liabilities, Business or Real
Property or any part thereof, the compliance of the Acquired Assets, Assumed
Liabilities, Business or Real Property or any part thereof with all
authorizations of any Governmental Authority and other governmental laws, rules and
regulations and the operation of the Acquired Assets, Assumed Liabilities,
Business or Real Property or any part thereof, (iii) Buyer is not relying
upon any representation or warranty, other than as expressly set forth in this
Agreement and in the certificates or other writings delivered by Seller
pursuant to Article 10 hereof, made by any of the Seller Parties or
anyone acting or claiming to act on their behalf concerning the Acquired
Assets, Assumed Liabilities, Business or Real Property or any part thereof, and
(iv) except with respect to the representations and warranties of Seller
expressly set forth in this Agreement and in the certificates or other writing
delivered by Seller pursuant to Article 10 hereof, Buyer has not
relied on, or been induced to enter into this Agreement or any transaction
contemplated herein by, any duty, obligation or responsibility on the part of
any of the Seller Parties to disclose any fact or circumstance relating to the
Acquired Assets, Assumed Liabilities, Business or Real Property or 


 


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any
part thereof.  Buyer further acknowledges
that it has not received from any of the Seller Parties any accounting, tax,
legal, securities, architectural, engineering, property management, real
property or any other advice with respect to the transactions contemplated by
this Agreement and is relying solely upon the advice of Buyer’s own accounting,
tax, legal, securities, architectural, engineering, property management, real
property and other advisors with respect to the transactions contemplated by
this Agreement.  Except as otherwise
expressly set forth in this Agreement and in the certificates or other writings
delivered by Seller pursuant to Article 10 hereof, and except as
otherwise provided in Section 5.11(c) hereof with respect to
fraud claims, Buyer shall acquire the Acquired Assets, Assumed Liabilities,
Business and Real Property and each part thereof “AS IS-WHERE
IS” and with all faults on the Closing Date and assume the risk that
adverse physical, environmental, economic or legal conditions may not have been
revealed to Buyer.  Except with respect
to a material breach of the representations and warranties expressly made by
any of the Seller Parties in this Agreement and as otherwise provided in Section 5.11(c) hereof
with respect to fraud claims, none of the Seller Parties shall have any
liability of any kind or nature for any subsequently discovered defects in the
physical condition of the Acquired Assets, Assumed Liabilities, Business or
Real Property or any part thereof, whether such defects were latent or
patent.  This Section 5.11(a) shall
survive any Closing and any termination of this Agreement.


 


(b)                                 Buyer Releases of Seller and Seller Affiliates.  Except as specifically set forth in this
Agreement, at the expiration of the period for the survival of the same as more
fully described herein, Buyer and its Affiliates and anyone claiming by,
through or under them, each hereby fully and irrevocably releases each of the
Seller Parties, and their respective officers, directors, employees, agents, consultants
and other representatives (collectively, the “Seller
Released Parties”), from any and all claims, whether known or
unknown, foreseen or unforeseen, now existing or hereafter arising, that it or
they may then have against any of the Seller Released Parties for any cost,
loss, liability, damage, expense, action or cause of action at law, in equity
or otherwise, arising from or relating in any way to (i) the parcels or
any of them, including, without limitation, any and all claims, whether known
or unknown, foreseen or unforeseen, now existing or hereafter arising, relating
in any way to or arising under or in connection with any of the Leases or
management agreements and/or any claim relating in any way to or arising from
the physical or environmental condition of such parcels, the operation of such
parcels and/or the repair or maintenance of such parcels, or arising from any
breach of an express representation, warranty or covenant of Seller contained
in this Agreement, except for claims arising from any breach of an express
representation, warranty or covenant of Seller contained in this Agreement that
expressly survives the Closing by the terms of this Agreement, or (ii) the
partnership agreement of Seller, or any relationship of any of the Seller
Released Parties with Buyer or any of its Affiliates, including, without
limitation, as partners in Seller or any other relationship among any of the
Seller Released Parties with Buyer and/or its Affiliates, whether as partners,
co-members, shareholders or any other relationship, including, without
limitation, any and all claims, whether known or unknown, foreseen or
unforeseen, now existing or hereafter arising, that any such Seller Released
Parties may have accrued as fiduciaries of Buyer or any of its Affiliates, or
arising in any manner whatsoever; provided, however, that this release shall no
longer be effective if this Agreement is terminated and (A) a court of
competent jurisdiction determines on a final, non-appealable basis that Seller
materially breached this Agreement, (B) Buyer’s closing conditions set
forth in Article 10 hereof have not been satisfied or waived by
Buyer, or (C) Seller’s closing conditions set forth in Article 10
hereof have not 


 


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been
satisfied or waived by Seller.  Buyer and
its Affiliates further agree that the releases hereunder shall be given full
force and effect according to each of their express terms and provisions,
including, without limitation, any unknown and suspected claims, damages and
causes of action.  Notwithstanding any
provisions at law or by statute pertaining to releases and waivers of claims,
the releases contained herein shall each constitute a full release in accordance
with its terms.  Buyer and its Affiliates
hereby knowingly and voluntarily waive any and all statutes, laws, rules and/or
regulations that in any way would otherwise limit, restrict or nullify the
effect of the releases and waivers contained herein, and acknowledge that each
release and waiver contained herein is an essential and material term of this
Agreement, and without such release or waiver this Agreement would not have
been entered into by Seller.  Buyer and
its Affiliates hereby respectively represent and warrant that they have been advised
by their legal counsel or have had the opportunity to obtain advice of legal
counsel of their choice, and understand and acknowledge the significance of the
releases and waivers contained herein and the specific waiver of any and all
statutes, laws, rules and/or regulations that in any way would otherwise
limit, restrict or nullify the effect of any release or waiver contained
herein.  This Section 5.11(b) shall
survive any Closing and any termination of this Agreement.


 


(c)                                  No Fraud Waiver.  Notwithstanding anything to the contrary set
forth in this Agreement, including, without limitation, this Section 5.11(c),
in no event shall Buyer or Seller or any of their Affiliates waive hereby, or
be deemed to have waived hereby, any right, claim or cause of action that Buyer
or Seller or any of their Affiliates may have or assert against the other or
any of its Affiliates relating to active fraud, and the waivers in this
Agreement shall not be deemed to waive or absolve Seller or Buyer or any of
their Affiliates from any liability for the active fraud of Seller.


 


ARTICLE 6



COVENANTS OF SELLER AND PARENT


 


Section 6.01                            Conduct
of the Business.


 


(a)                                  Between
the Execution Date and the Closing Date, except as set forth in this Agreement,
to the extent permitted under the Westin Management Agreement and the Troon
Management Agreement, GTA, Seller, Parent, Holding Company, Condo Owner and
Management Company shall use commercially reasonable efforts to (i) operate
and preserve the Business in the ordinary course of business on a basis
generally consistent with past practice, (ii) preserve the goodwill of
suppliers and service providers with respect to the Business, (iii) maintain
the books, records and accounts of the Business in the usual, regular and
ordinary course of business generally consistent with past practice, (iv) enforce
all Contracts to be assigned to and assumed by Buyer in the ordinary course of
business generally consistent with past practice (provided, however, Seller
shall not be obligated to commence any litigation or terminate any such
Contracts), and (v) maintain the Real Property (subject to normal wear and
tear) generally consistent with past practice; provided, however, that GTA,
Seller, Parent, Holding Company, Condo Owner and Management Company shall not
be required to make or commit to make any capital improvements, repairs or
replacements to the Acquired Assets, except improvements, repairs or
replacements that GTA, Seller, Parent, Holding Company, Condo Owner or
Management Company reasonably determines to be of an emergency nature.


 


56





















 


Between
the Execution Date and the Closing Date, neither GTA, Seller, Parent, Holding
Company, Condo Owner, Management Company nor any of their Affiliates shall enter
into any new lease affecting the Owned Real Property, or modify any existing
Lease, without first obtaining the prior written consent of Buyer, which
consent shall not be unreasonably withheld or delayed; provided, however, that
Seller may enter into any Innisbrook 2006 Rental Pool Annual Lease Agreement in
the form set forth in Exhibit 6.01 attached hereto without the
prior written consent of Buyer.  Between
the Execution Date and the Closing Date, neither GTA, Seller, Parent, Holding
Company, Condo Owner, Management Company nor any of their Affiliates shall
enter into any new contracts or agreements not in the ordinary course of
business affecting the Business or the Owned Real Property, or modify any of
the existing Contracts other than in the ordinary course of business; provided,
however, that GTA, Seller, Parent, Holding Company, Condo Owner, Management
Company and their Affiliates may enter or modify any contracts or agreements
that may be terminated upon not more than thirty (30) days’ notice without
payment of a penalty.


 


(b)                                 After
the expiration of the Due Diligence Period, except in the case of emergencies
and capital expenditures committed prior to the expiration of the Due Diligence
Period, Seller shall notify Buyer in writing of any capital expenditure of a
non-emergency nature that GTA, Seller, Parent, Holding Company, Condo Owner,
Management Company or any of their Affiliates propose to make relating to the
Acquired Assets.  Within three (3) Business
Days of Buyer’s receipt of such notice, Buyer shall, pursuant to a written
notice to Seller, consent or reasonably withhold its consent to such capital
expenditure.  In the event Buyer does not
furnish Seller with written notice pursuant to this Section 6.01(b),
Buyer shall be deemed to have consented to the applicable capital expenditure
and the obligations of Seller thereunder shall be assumed by Buyer at the
Closing.  In the event Buyer reasonably
withholds its consent by written notice to Seller pursuant to this Section 6.01(b),
Seller shall not make the applicable capital expenditure.


 


Section 6.02                            Access
to Information.


 


From the
Execution Date until the Closing Date, and otherwise subject to the
limitations, restrictions and exceptions provided in Sections 2.08(c) hereof,
upon reasonable notice, Seller shall (i) make available to Buyer
reasonable access to the books and records of Seller related to the Acquired
Assets and Assumed Liabilities; (ii) make available to Buyer such
financial and operating data and other information relating to the Business as
Buyer may reasonably request and Seller may have, (iii) to the extent not
otherwise available under this Section 6.02, allow Buyer reasonable
access to Seller’s senior executive officers for Buyer’s reasonable
investigation of the Business, and (iv) abide by the terms set forth in Section 2.08
hereof; provided, however, that any such access or furnishing of information
shall be conducted during normal business hours upon reasonable notice to
Seller, under the supervision of Seller’s personnel or designees in such a
manner as to not unreasonably interfere with the conduct of the Business or the
normal operations of Seller or any of its Affiliates and at Buyer’s sole cost
and expense, except that Buyer shall not compensate Seller for any payment made
by Seller for the time or reasonable travel, lodging or meal expenses of Seller’s
executives, employees, agents or representatives in relation thereof.  Notwithstanding anything to the contrary in
this Agreement, Seller shall not be required at any time to disclose any
information to Buyer (1) that is, in Seller’s sole discretion,
confidential, including, without limitation, any information regarding other
bids, bidders or 


 


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analysis or
advice with respect thereto, or (2) if such disclosure would (A) in
Seller’s sole discretion jeopardize any applicable privilege, including
attorney-client privilege or work-product privilege, or (B) contravene any
duty imposed by applicable laws.


 


Section 6.03                            Estoppel
Certificates.


 


(a)                                  Within
three (3) Business Days after the Execution Date, Seller shall request of
each landlord under each Lease that an executed copy of any estoppel
certificate that is an obligation pursuant to the terms of the applicable Lease
be delivered to Buyer prior to expiration of the Due Diligence Period.  In the event that any or all landlords under
any Lease do not provide such certificates under this Section 6.03(a),
such event shall not in any way constitute a breach of this Agreement by Seller
or any of its Affiliates.


 


(b)                                 Within
three (3) Business Days after the Execution Date, Seller shall request of
Westin that an executed copy of the Westin Estoppel Certificate be delivered by
Westin to Buyer prior to expiration of the Due Diligence Period.  In the event that Westin does not provide the
Westin Estoppel Certificate to Buyer or to Seller as provided under this Section 6.03(b) for
any reason, such event shall not in any way constitute a breach of this
Agreement by Seller or any of its Affiliates.


 


(c)                                  Within
three (3) Business Days after the Execution Date, Seller shall request of
Troon that an executed copy of the Troon Estoppel Certificate be delivered by
Troon to Buyer prior to expiration of the Due Diligence Period.  In the event that Troon does not provide the
Troon Estoppel Certificate to Buyer or to Seller as provided under this Section 6.03(c) for
any reason, such event shall not in any way constitute a breach of this
Agreement by Seller or any of its Affiliates.


 


Section 6.04                            Condo
Association Approval.


 


Within three (3) Business
Days after the Execution Date, Condo Owner shall notify Condo Association,
pursuant to Section 11.2(a)(i) of the Declaration of Condominium, of
its intention to sell the Condo Property to Buyer and shall request that Condo
Association approve such sale.  Pursuant
to Section 11.2(b)(i) of the Declaration of Condominium, Condominium
Association has thirty (30) days after receipt of such notice from Condo Owner
to approve or disapprove the sale of the Condo Property.  In the event that Condominium Association has
not approved the sale of the Condo Property prior to the Closing Date, Seller
and Buyer shall (i) close all of the transactions contemplated by this
Agreement, other than the purchase and sale of the Condo Property, on the Closing
Date with a reduction of One Million Four Hundred Seventy-Seven Thousand Dollars
($1,477,000) in the Purchase Price (such reduction amount, the “Condo Property Purchase Price”) and (ii) close the
purchase and sale of the Condo Property separately from the other Acquired
Assets (the “Separate Condo Closing”).  In the event of a Separate Condo Closing, the
closing of the purchase and sale of the Condo Property and the payment of the
Condo Property Purchase Price by Buyer to Seller shall take place at 10:00 a.m.
(Eastern time) at the offices of O’Melveny & Myers LLP, Times Square
Tower, 7 Times Square, New York, New York, on the third Business Day
immediately following receipt of the Condominium Association’s approval, if
any, of the sale of the Condo Property to Buyer.  In the event that Condominium Association
does not approve the sale of the Condo Property, such 


 


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event shall
not in any way constitute a breach of this Agreement by Seller, Condo Owner or
any of their Affiliates and the balance of the transaction for the purchase and
sale of the Acquired Assets, other than the Condo Property, shall continue to
occur on the Closing Date.


 


Section 6.05                            Approval
of GTA Board of Directors.


 


The GTA Board
of Directors approved this Agreement and the transactions contemplated hereby
(the “Initial Board Approval”), subject to
the GTA Board of Director’s receipt of a fairness opinion, in a form
satisfactory to the GTA Board of Directors in their sole discretion, from
Houlihan Lokey Howard & Zukin Financial Advisors, Inc. concluding
that the transactions contemplated by this Agreement are fair to Seller from a
financial point of view (the “Fairness Opinion”).
 Within two (2) Business Days after the
expiration of the Due Diligence Period and the deposit of the Deposit Amount
with Escrow Agent, Seller (i) shall cause Houlihan Lokey Howard &
Zukin Financial Advisors, Inc. to deliver the Fairness Opinion and (ii) shall
submit the Fairness Opinion to the GTA Board of Directors for its
consideration.  Seller shall advise Buyer
of the GTA Board of Director’s determination (whether it is an approval or a
disapproval thereof) within one (1) Business Day thereafter (such approval
of the GTA Board of Directors, if any, the “Final Board
Approval”).  In the event Seller
does not obtain the Final Board Approval within the aforesaid time period, and
Buyer is not in material breach under this Agreement, this Agreement shall
automatically terminate and Seller shall pay to Buyer the Termination Fee (as
defined below).  Seller’s failure to
obtain any approval of the GTA Board of Directors, including, without
limitation, the Final Board Approval, shall not constitute a breach of this
Agreement by Seller or any of its Affiliates and Buyer shall have no claim
against Seller or any of its Affiliates in the event thereof, or any right,
title or interest in the Business, the Acquired Assets or the Real Property,
other than to the payment of the Termination Fee in the case of the Final Board
Approval provided that Buyer is not in material breach of this Agreement.


 


Section 6.06                            Disclosure
Supplements.


 


Prior to the
Closing, Seller shall supplement or amend the schedules attached hereto from
time to time with respect to any material matter, condition or occurrence to
the Knowledge of Seller or Parent arising after the Execution Date which, if
existing at, or occurring prior to or on, the Execution Date, would have been
required to be set forth or described by Seller or Parent in the schedules
attached hereto.  All such supplements or
amendments, if any, shall be deemed to cure any breach of and/or modify (i) any
representation or warranty made in this Agreement by Seller or Parent, and (ii) any
covenants of Seller or Parent set forth in this Agreement.


 


Section 6.07                            No
Solicitation.


 


(a)                                  GTA,
Seller, Parent, Condo Owner, Holding Company and Management Company shall not,
nor shall they authorize or permit any of their Affiliates, directors or
officers to, and shall use their commercially reasonable efforts to cause any
director, employee, investment banker, financial advisor, attorney, accountant
or other representative retained by them or any of their Affiliates not to,
directly or indirectly, (i) solicit, initiate, knowingly encourage or
knowingly take any other action designed to facilitate any inquiries or the
making of any proposal that constitutes an Acquisition Proposal (as defined
below), (ii) participate in any negotiations or discussions regarding, or
furnish to any Person any nonpublic information with 


 


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respect
to, any Acquisition Proposal, (iii) approve, endorse or recommend any
Acquisition Proposal, or (iv) enter into any letter of intent or similar
document or any contract, agreement or commitment accepting any Acquisition
Proposal or relating to any Acquisition Proposal (other than a confidentiality
agreement entered into with a party making an Acquisition Proposal contemplated
by clause (x) below); provided, however, that if, at any time prior to the
Closing (the “Applicable Period”), GTA, Seller,
Parent, Condo Owner, Holding Company or Management Company receives a bona fide
Acquisition Proposal that did not result from a breach of this Section 6.07(a),
and the Board of Directors of GTA, Seller, Parent, Condo Owner, Holding Company
or Management Company determines in good faith (A) that such Acquisition
Proposal may result in a Superior Proposal (as defined below), and (B) that
failure to do so may result in a breach of such Board of Directors’ fiduciary
obligations under applicable law, GTA, Seller, Parent, Condo Owner, Holding
Company or Management Company may (x) furnish information with respect to
the Acquired Assets to the Person making such Acquisition Proposal (and its
representatives) pursuant to a confidentiality agreement containing terms no
less favorable to the interests of GTA, Seller, Parent, Condo Owner, Holding
Company or Management Company than those set forth in the Confidentiality
Agreement (such confidentiality agreement may allow such party to submit to
GTA, Seller, Parent, Condo Owner, Holding Company or Management Company a
proposal or offer relating to a transaction; provided, however, that such
confidentiality agreement shall not in any way restrict GTA, Seller, Parent,
Condo Owner, Holding Company or Management Company from complying with their
disclosure obligations under this Agreement, including with respect to such
Acquisition Proposal) and (y) participate in discussions or negotiations
regarding such Acquisition Proposal.  For
purposes of this Agreement, “Acquisition Proposal”
means any bona fide inquiry, proposal, request or offer from any third party
relating to (i) any direct or indirect acquisition or purchase of the
Acquired Assets that constitutes ten percent (10%) or more of the net value of
the Acquired Assets taken as a whole, or (ii) any merger, consolidation,
business combination, recapitalization, liquidation, dissolution or similar
transaction involving GTA, Seller, Parent, Condo Owner, Holding Company or
Management Company.


 


(b)                                 Except
as expressly permitted by this Section 6.07, neither the Board of
Directors of GTA, Seller, Parent, Condo Owner, Holding Company nor Management
Company nor any committee thereof shall (i) withdraw or modify, or propose
publicly to withdraw or modify, in a manner adverse to Buyer, the approval or
recommendation by such Board of Directors or such committee of this Agreement
or Buyer’s purchase of the Acquired Assets, (ii) approve or recommend, or
propose publicly to approve or recommend, any Acquisition Proposal, or (iii) cause
Seller to enter into any letter of intent, agreement in principle, acquisition
agreement or other similar agreement (each, an “Acquisition
Agreement”) related to any Acquisition Proposal.


 


(c)                                  Notwithstanding
the foregoing, in response to an Acquisition Proposal that did not otherwise
result from a breach of Section 6.07(a) or 6.07(b) hereof,
during the Applicable Period, the Board of Directors of GTA, Seller, Parent,
Condo Owner, Holding Company or Management Company may, if it determines in
good faith that the failure to take such action may result in a breach of such
Board of Directors’ fiduciary obligations under applicable law, (A) withdraw
or modify, or propose publicly to withdraw or modify, the approval or
recommendation by such Board of Directors or any committee thereof of this
Agreement or Buyer’s purchase of the Acquired Assets, (B) approve or
recommend, or propose to approve or 


 


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recommend,
such Superior Proposal (any of the foregoing actions contemplated by clause (A) or
(B), a “Change of Recommendation”), or (C) terminate
this Agreement pursuant to Section 12.01(h) hereof, but only
after:


 


(i)                                     such
Board of Directors has determined in good faith that such Acquisition Proposal
constitutes a Superior Proposal;


 


(ii)                                  Seller
or Parent shall have delivered to Buyer written notice at least one (1) Business
Day prior to publicly effecting such Change of Recommendation or terminating
this Agreement which shall state expressly (1) that GTA, Seller, Parent,
Condo Owner, Holding Company or Management Company has received a Superior
Proposal, (2) the material terms and conditions of the Superior Proposal,
and (3) that GTA, Seller, Parent, Condo Owner, Holding Company or
Management Company intends to effect a Change of Recommendation or terminate
this Agreement if Buyer does not, within five (5) Business Days of receipt
of the written notice delivered pursuant to this Section 6.07(c)(ii),
unequivocally confirm in writing, in a manner reasonably satisfactory to
Seller, that Buyer shall (A) modify and amend the terms of the
transactions contemplated by this Agreement in a manner and on terms which the
Board of Directors determines is more favorable than the Superior Proposal,
and, (B) if prior to the expiration of the Due Diligence Period: (x) waive
Buyer’s rights pursuant to Section 2.08(f) hereof, (y) cause
CWYP to deposit the Original Deposit Amount with Escrow Agent, and (z)
acknowledge without qualification or condition that the Deposit Amount shall
become non-refundable to Buyer upon Seller’s disapproval of the Superior
Proposal and shall be delivered to Seller forthwith as liquidated damages
hereunder without demand, deduction, offset or delay in the event that this
Agreement is terminated for any reason other than as otherwise expressly
provided in this Agreement; provided, however, that in no event shall Seller be
obligated to provide the name of the Person offering the Superior Proposal or
any Acquisition Proposal to Buyer; and


 


(iii)                               Buyer
does not, within five (5) Business Days of receipt of the written notice
delivered pursuant to Section 6.07(c)(ii) hereof,
unequivocally confirm in writing, in a manner reasonably satisfactory to
Seller, that Buyer shall (A) modify and amend the terms of the
transactions contemplated by this Agreement in a manner and on terms which the
Board of Directors determines is more favorable than the Superior Proposal,
and, (B) if prior to expiration of the Due Diligence Period: (x) waive
Buyer’s rights pursuant to Section 2.08(f) hereof, (y) cause
CWYP to deposit the Original Deposit Amount with Escrow Agent, and (z)
acknowledge without qualification or condition that the Deposit Amount shall
become non-refundable to Buyer upon Seller’s disapproval of the Superior
Proposal and shall be delivered to Seller forthwith as liquidated damages
hereunder without demand, deduction, offset or delay in the event that this
Agreement is terminated for any reason other than as otherwise expressly
provided in this Agreement.


 


For purposes
of this Agreement, “Superior Proposal”
means any written bona fide offer made by a third party to acquire, directly or
indirectly, pursuant to an asset purchase, merger, consolidation or other
business combination, all or substantially all of the Acquired Assets, on terms
that the Board of Directors of Seller, Parent, Condo Owner or Holding Company
determines in good faith to be more favorable (taking into account (i) all
financial 


 


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considerations,
including relevant legal, financial, regulatory and other aspects of such
Acquisition Proposal and the transactions contemplated by this Agreement deemed
relevant by the Board of Directors, (ii) the identity of the third party
making such Acquisition Proposal, and (iii) the conditions and prospects
for completion of such Acquisition Proposal) to its equity holders than the
transactions contemplated by this Agreement (taking into account all of the
terms of any proposal by Buyer to amend or modify the terms of the transactions
contemplated by this Agreement).


 


(d)                                 In
addition to the obligations of GTA, Seller, Parent, Condo Owner, Holding
Company and Management Company set forth in paragraphs (a) and (b) of
this Section 6.07, GTA, Seller, Parent, Condo Owner, Holding
Company or Management Company shall as promptly as practicable (i) advise
Buyer of any Acquisition Proposal, (ii) advise Buyer of the principal
terms and conditions of any Acquisition Proposal, and any changes thereto,
that, in the determination of the Board of Directors of GTA, Seller, Parent,
Condo Owner, Holding Company or Management Company constitutes or is reasonably
likely to lead to a Superior Proposal, (iii) provide Buyer with notice of
GTA, Seller, Parent, Condo Owner, Holding Company or Management Company’s
intention to enter into negotiations with any third party with respect to an
Acquisition Proposal, and (iv) contemporaneously with furnishing any
nonpublic information with regard to GTA, Seller, Parent, Condo Owner, Holding
Company or Management Company and its Affiliates to such third party, furnish
such nonpublic information to Buyer (to the extent such nonpublic information
has not been previously furnished to Buyer); provided, however, that in no
event shall Seller be obligated to provide the name of the Person offering the
Superior Proposal or any Acquisition Proposal to Buyer.


 


(e)                                  Nothing
contained in this Section 6.07 shall prohibit GTA, Seller, Parent,
Condo Owner, Holding Company or Management Company (i) from taking and
disclosing to its respective equity holders a position contemplated by Rule 14e-2(a) promulgated
under the Exchange Act or from making any disclosure to its equity holders if,
in the good faith judgment of the Board of Directors of GTA, Seller, Parent,
Condo Owner, Holding Company or Management Company failure so to disclose would
be inconsistent with the respective entity’s obligations under applicable law,
including such Board of Directors’ duty of candor to its equity holders, or (ii) from
taking actions permitted by Section 6.01 hereof.


 


(f)                                    The
parties hereto agree that irreparable damage would occur in the event that the
provisions of this Section 6.07 were not performed in accordance
with their specific terms or were otherwise breached.  It is accordingly agreed by the parties
hereto that Buyer shall be entitled to seek an immediate injunction or
injunctions, subject to proving the inadequacy of money damages as a remedy and
the posting of a bond or other security, to prevent breaches of the provisions
of this Section 6.07 and to enforce specifically the terms and
provisions hereof in the United States District Court for the Middle District
of Florida or any state court located in the 13th Judicial Circuit of the State
of Florida, this being in addition to any other remedy to which Buyer may be
entitled at law or in equity.


 


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Section 6.08                            Conduct
of GTA, Seller, Parent, Holding Company, Condo Owner and Management Company.


 


Except as
otherwise provided in this Agreement, including, without limitation, Section 6.07
hereof, GTA, Seller, Parent, Holding Company, Management Company and Condo
Owner shall not take, or agree or commit to take, any action that would (i) or
is reasonably likely to result in, any of the conditions to the Closing set
forth in Article 10 hereof not being satisfied, (ii) make any
representation or warranty of Seller or Parent contained herein inaccurate in
any material respect as of the Closing Date, (iii) materially impair the
ability of Seller or Buyer to consummate the Closing in accordance with the
terms of this Agreement, or (v) materially delay the consummation of the
Closing in accordance with the terms of this Agreement.


 


Section 6.09                            GTA
Mortgage.


 


On the Closing
Date, Seller shall cause (i) the GTA Mortgage to be fully paid, satisfied,
released and discharged with a portion of the Purchase Price from Buyer, and (ii) the
Real Property secured thereby to be released from the lien of the GTA Mortgage.


 


ARTICLE 7



COVENANTS OF BUYER


 


Section 7.01                            Access.


 


(a)                                  Buyer
and its Affiliates shall, on and after the Closing Date, upon reasonable
advance notice, afford GTA, Seller, Parent, Condo Owner, Holding Company and
Management Company and their respective representatives and agents, at Seller’s
sole cost and expense (except that Seller shall not compensate Buyer for any
payment made by Buyer for the time or reasonable travel, lodging or meal
expenses of Buyer’s executives, employees, agents or representatives in
relation thereof), reasonable access during extended business hours (i.e.,
7:00 a.m. to 10:00 p.m. (Eastern time)) and/or on weekends to Buyer
and its Affiliates’ properties, books, records, employees and auditors,
including, without limitation, the Acquired Assets transferred pursuant to Section 2.01(g) hereof,
to the extent reasonably necessary to permit GTA, Seller, Parent, Condo Owner,
Holding Company or Management Company and their respective representatives and
agents to determine any matter relating (i) to GTA’s, Seller’s, Parent’s,
Condo Owner’s, Holding Company’s, Management Company’s or any of their
Affiliates’ rights and obligations hereunder, (ii) to GTA’s, Seller’s,
Parent’s, Condo Owner’s, Holding Company’s, Management Company’s or any of
their Affiliate’s obligations to any Governmental Authority, including, without
limitation, any filings or reports to be made with the Internal Revenue Service
of the United States or the Securities and Exchange Commission (including,
without limitation, GTA’s and Seller’s quarterly reports on Form 10-Q for
the quarter ended September 30, 2005 and GTA’s and Seller’s annual reports
on Form 10-K for the year ended December 31, 2005), (iii) to any
period ending on or prior to the Closing Date with respect to the Business, or (iv) to
any litigation, arbitration proceeding or claim relating to the Acquired Assets
or the Business in which GTA, Seller, Parent, Condo Owner, Holding Company,
Management Company or any of their Affiliates are involved.  Any such access by GTA, Seller, Parent, Condo
Owner, Holding Company, Management Company or any of their respective 


 


63





















 


representatives
and agents shall (x) not unreasonably interfere with the conduct of the
Business by Buyer or the conduct of any other business of Buyer, (y) be
performed in an adequate place to work specified by Buyer, and (z) be subject
to Buyer’s right to have a representative or agent present at all times;
provided, however, Buyer’s presence shall not be a condition to the access
rights of GTA, Seller, Parent, Condo Owner, Holding Company or Management
Company pursuant to this Section 7.01.  Pursuant to Section 13.03 hereof,
GTA, Seller, Parent, Condo Owner, Holding Company and Management Company shall
hold, and shall use their commercially reasonable efforts to cause their
officers, directors, employees, accountants, counsel, consultants, advisors and
agents to hold, in confidence, unless compelled to disclose pursuant to court
order, subpoena or other legal process (in which case GTA, Seller, Parent,
Condo Owner, Holding Company or Management Company shall give Buyer written
notice as soon as reasonably practicable upon receipt of the subpoena or court
order prior to such disclosure), all confidential documents and information
concerning the Business provided to them pursuant to this Section 7.01,
except to the extent such documents were already in the possession of GTA,
Seller, Parent, Condo Owner, Holding Company or Management Company or are in
the public domain.


 


Section 7.02                            Plan
of Liquidation.


 


Buyer, on
behalf of itself and each of its Affiliates, hereby covenants and agrees that
none of Buyer nor any of its Affiliates shall act or fail to act in any manner
that adversely interferes with the Plan of Liquidation, including, without
limitation, (i) casting any votes against any proposal submitted by GTA to
its stockholders and (ii) without Seller’s prior written consent,
communicating in any way with any stockholder of GTA or any partner of Parent
prior to six (6) months after the Closing.


 


Section 7.03                            Conduct
of Buyer.


 


Buyer shall
neither:


 


(a)                                  take,
or agree to or commit to take, any action that would or is reasonably likely to
result in any of the conditions to the Closing set forth in Article 10
hereof not being satisfied, or would make any representation or warranty of
Buyer contained herein inaccurate in any respect at, or as of any time prior
to, the Closing Date, or that would materially impair the ability of Seller or
Buyer to consummate the Closing in accordance with the terms hereof or
materially delay such consummation;


 


(b)                                 take,
or agree to or commit to take, any action that would or is reasonably likely to
materially impact Seller’s or any of its Affiliate’s ability to sell the
Acquired Assets to a third party in the event that the transactions
contemplated by this Agreement are not consummated; nor


 


(c)                                  enter
into any agreement, contract, commitment or arrangement to do any of the
foregoing, or in writing or otherwise agree, authorize, recommend, propose or
announce an intention to do any of the foregoing.


 


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Section 7.04                            Notice
of Changes in Original Deposit Amount.


 


From and after
the Execution Date until the date, if any, that CWYP deposits the Original
Deposit Amount with Escrow Agent, Buyer shall cause CWYP to hold the Original
Deposit Amount solely and exclusively in accordance with the terms of that
certain reliance letter from CWYP to Seller and Seller’s legal counsel, a copy
of which is set forth as Exhibit 7.04 attached hereto.  Buyer acknowledges and agrees that Seller may
rely thereon and Buyer shall issue no instructions to CWYP or any successor
thereto inconsistent therewith.


 


Section 7.05                            Guarantee.


 


In the event a
Person becomes party to this Agreement as Nominee pursuant to Section 8.09
hereof, Buyer’s Guarantor irrevocably and unconditionally guarantees the
performance by Buyer of Buyer’s obligations under this Agreement, both prior to
and following the Closing Date, if any.  CMI
hereby acknowledges and understands that Seller is entering into this Agreement,
including, without limitation, Section 8.09 hereof, in reliance on the
covenant in this Section 7.05.


 


ARTICLE 8



COVENANTS OF BUYER, PARENT AND SELLER


 


Buyer, Parent
and Seller agree that:


 


Section 8.01                            Efforts
and Actions to Cause the Transactions Contemplated by this Agreement to Occur.


 


(a)                                  Subject
to the terms and conditions of this Agreement, Buyer, Parent and Seller shall
use commercially reasonable efforts to take, or cause to be taken, all actions
and to do, or cause to be done, and cooperate with each other to do, all things
reasonably necessary or desirable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement as promptly as
reasonably practicable, including, without limitation, any obligations of any
of their respective Affiliates under this Agreement.


 


(b)                                 Seller,
Parent and Buyer shall reasonably cooperate with one another in determining
whether any action by or in respect of, or filing with, any Governmental
Authority is required, or any actions, consents, approvals or waivers are
required to be obtained from any third party, in connection with the
consummation of the transactions contemplated by this Agreement.  Seller, Parent and Buyer agree to take
commercially reasonable actions necessary to obtain any required approvals,
authorizations, consents, orders, licenses, permits, qualifications, exemptions
or waivers by any third party or Governmental Authority.  If required, each party shall as promptly as
reasonably practicable, in cooperation with the other parties, but at its own
expense (except as otherwise provided in this Agreement, including, without
limitation, Section 8.03 hereof), file any reports or notifications
or furnish information and pay any fees that may be required to be paid by it
under applicable law.


 


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(c)                                  Prior
to the Closing, Seller, Parent and Buyer shall promptly consult with the other
party or parties hereto with respect to, provide any necessary information with
respect to, and provide the other party or parties or their respective legal counsel
with copies of, all filings made by such party with any Governmental Authority
or any information supplied by such party or parties to any Governmental
Authority in connection with this Agreement and the transactions contemplated
hereby.  Each party hereto shall promptly
provide the other parties with copies of any written communication received by
such party from any Governmental Authority regarding this Agreement or any of
the transactions contemplated hereby.


 


(d)                                 Seller
and Parent shall reasonably cooperate with Buyer to transfer any liquor
licenses in the name of the Resort to Buyer, including execution of a right of
occupancy and management agreement substantially in a form to be provided to
Buyer during the Due Diligence Period; provided, however, that Buyer shall
indemnify Seller and Parent for any and all taxes, fees and costs incurred by
Seller, Parent or any of their Affiliates, including attorneys’ fees, in
connection with such transfer.  Buyer
shall be solely responsible for the process with respect to the transfer of any
liquor licenses and shall indemnify, defend and hold Seller and its Affiliates
harmless from and against all claims, losses, costs or expenses related to such
transfer, including, without limitation, any interruption in the sale of liquor
at the Resort.  Transfer of any liquor
licenses shall not be a condition to Closing of either Buyer or Seller.


 


Section 8.02                            Notices
of Certain Events.


 


From the
Execution Date until the Closing Date, Seller and Parent, on the one hand, and
Buyer, on the other hand, shall promptly, after becoming aware of the
following, notify the other of:


 


(a)                                  any
notice or other communication from any Person alleging that the consent of such
Person is or may be required in connection with any of the transactions
contemplated by this Agreement;


 


(b)                                 any
notice or other communication from any Governmental Authority in connection
with any of the transactions contemplated by this Agreement; and


 


(c)                                  any
event, transaction or circumstance that such party learns has caused or will
cause any covenant or agreement of such party under this Agreement to be
breached or that renders or will render untrue any representation or warranty
of such party contained in this Agreement in each case so as to cause a
condition to Closing not to be satisfied.


 


Section 8.03                            Transfer
and Other Taxes.


 


All transfer,
documentary, recording, sales, use, registration and other such Taxes,
including all applicable real estate transfer Taxes, and related fees incurred
in connection with any of the transactions contemplated by this Agreement shall
be paid by Buyer; Parent, Seller and Buyer shall each prepare and file any Tax
Returns required to be filed in connection with any of the transactions
contemplated by this Agreement regardless of whether any Tax is required to be
paid in connection with such filing, and Parent, Seller and Buyer shall
cooperate with each other in the preparation, execution and filing of such Tax
Returns.


 


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Section 8.04                            Escrow
Fees.


 


Buyer and
Seller shall each pay one half (1⁄2) of the customary escrow fees incurred by Escrow
Agent with respect to the services of Escrow Agent under this Agreement.  Buyer shall be solely responsible to pay all
fees and costs incurred by CWYP with respect to the services of CWYP performed
in relation to the Original Deposit Amount.


 


Section 8.05                            Further
Assurances.


 


Each party
hereto shall reasonably cooperate with the other parties hereto, and execute
and deliver, or use its commercially reasonable efforts to cause to be executed
and delivered, all such other reasonable instruments, including instruments of
conveyance, assignment and transfer, and to make all reasonable filings with
and to obtain all reasonable consents, approvals or authorizations of any
Governmental Authority or other regulatory authority or any other Person under
any Permit, agreement or other instrument, and take all such other reasonable
actions as such party may reasonably be requested to take by the other parties
hereto from time to time, consistent with the terms of this Agreement, in order
to effectuate the provisions and purposes of this Agreement and the
transactions contemplated hereby.


 


Section 8.06                            Transfers
Not Effected as of the Closing.


 


Nothing in
this Agreement shall be deemed to require the conveyance, assignment or
transfer of any of the Acquired Assets or Assumed Liabilities that by the terms
of such Acquired Asset or Assumed Liability or by operation of applicable law
cannot be freely conveyed, assigned, transferred or assumed.  To the extent any party hereto has been
unable to obtain any governmental or any third party consents or approvals
required under applicable law for the transfer of any of the Acquired Assets or
Assumed Liabilities, and to the extent not otherwise prohibited by the terms of
any Acquired Asset or Assumed Liability, Seller and its Affiliates shall
continue to be bound by the terms of such applicable Acquired Asset or Assumed
Liability and Buyer shall pay, perform and discharge fully all of the
obligations, to the extent such obligations are Assumed Liabilities, of Seller
and its Affiliates thereunder from and after the Closing to the extent that the
corresponding benefit is received. 
Subject to and in accordance with Section 8.01 hereof and
except as otherwise provided in Section 10.02(j) hereof, for not
more than ninety (90) days following the Closing Date, each party hereto shall
continue to use commercially reasonable efforts to obtain all such unobtained
consents or approvals required to be obtained by it at the earliest reasonably
practicable date.  If and when any such
consents or approvals shall be obtained, Seller and its Affiliates shall
promptly assign their rights and obligations thereunder and transfer any such
Acquired Assets free and clear of all liens other than Permitted Liens to Buyer
without payment of consideration and Buyer shall, without the payment of any
consideration therefor, assume such rights and obligations to the extent such
obligations are Assumed Liabilities.  The
relevant party or parties shall execute such good and sufficient instruments as
may be reasonably necessary to evidence such assignment and assumption.


 


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Section 8.07                            Certain
Post-Closing Assistance.


 


On and after
the Closing, and subject to Section 13.03 hereof, upon reasonable
advance notice and during normal business hours, Seller and Buyer shall permit
the other and its respective authorized representatives, to have access to and
examine and make copies of all books and records relating to the Acquired
Assets and Assumed Liabilities, including correspondence, memoranda, books of
account, Tax records and the like for such purposes as required under this
Agreement.


 


Section 8.08                            Litigation
Arising After the Execution Date.


 


In the event
litigation is commenced after the Execution Date in which Seller or any of its
Affiliates is a named defendant, Seller shall have the right, in Seller’s sole
discretion, to extend the Termination Date from time to time by no more than
forty-five (45) days in the aggregate, provided that the Due Diligence Period
has expired and Buyer is not in material breach of this Agreement.  By written notice, Seller may request Buyer’s
consent to a further extension of the Termination Date from time to time for an
additional one hundred thirty-five (135) days in the aggregate.  Within three (3) Business Days of Buyer’s
receipt of such written notice from Seller, Buyer shall consent or reasonably
withhold its consent to such additional extension by written notice to Seller.  If Buyer does not furnish Seller with the
written notice contemplated in the immediately preceding sentence in the time
and in the manner provided in this Section 8.08, Buyer shall be
deemed to have consented to such additional extension.  Notwithstanding anything to the contrary in
this Section 8.08, in the event litigation is commenced after the
Execution Date in which Seller or any of its Affiliates is a named defendant, Seller
may terminate this Agreement at any time, provided that Seller reimburses Buyer
for reasonably and actually incurred and verifiable professional fees, not to
exceed an aggregate amount of Two Hundred Fifty Thousand Dollars ($250,000),
incurred in connection with this Agreement.


 


Section 8.09                            Nominee.


 


Prior to the
expiration of the Due Diligence Period, any Person satisfying the definition of
Nominee as set forth in Section 1.01 hereof may become the Nominee;
provided, however, that such Person shall not become the Nominee unless and
until such Person executes an assignment and assumption agreement by and among
CMI, Nominee, GTA, Seller, Parent, Holding Company, Condo Owner and Management
Company, and agreed as to Article 3 hereof by Escrow Agent, in a form
approved by Seller whereby Nominee assumes all of the obligations of Buyer
under this Agreement and Buyer and Nominee shall be jointly and severally
liable to Seller and its Affiliates under this Agreement.


 


ARTICLE 9



EMPLOYEE BENEFITS MATTERS


 


Section 9.01                            Employee
and Employee Benefit Matters.


 


(a)                                  Prior
to the Closing Date, Buyer shall make an offer of employment to each Employee
other than those listed in Schedule 9.01 attached hereto, such
employment to be effective as of the Closing Date.  Such offer shall be for employment at the same
rate of base pay 


 


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as is
applicable at the Closing Date and with such other terms and conditions of
employment, including, without limitation, employee benefits, as are determined
by the Buyer in its sole discretion. 
Those Employees who have been offered employment by Buyer and who accept
such offers of employment shall be referred to herein as the “Transferred Employees”, and the parties hereto intend that
there shall be continuity of employment following the Closing with respect to
all Transferred Employees.  Following the
Closing Date, Buyer shall, or, as applicable, shall cause its Subsidiaries or
Affiliates, to, honor all obligations under any contracts, agreements,
collective bargaining agreements, Plans (as such may be amended in accordance
with this Agreement) and commitments of Seller and its Affiliates that exist on
the Closing Date (or as established or amended in accordance with or as
permitted by this Agreement) that apply to any Employee or former employee of
Seller or any of its Affiliates; provided, however, that this undertaking is
not intended to prevent Buyer from amending, modifying, suspending, revoking or
terminating any such contract, agreement, collective bargaining agreement or commitment.  For the first seventy-five (75) days after
the Closing, Buyer shall provide, or shall cause to be provided, to each
Transferred Employee (exclusive of any Employees who are subject to a
collective bargaining agreement) compensation and benefits from time to time
that are no less favorable, in the aggregate, than the compensation and
benefits provided to each such Transferred Employee immediately prior to the Closing.


 


(b)                                 For
the first seventy-five (75) days after the Closing, the Employees, other than
Employees who are party to individual agreements providing for severance
benefits, shall be eligible to receive severance benefits in amounts and on
terms and conditions no less favorable than those provided to Employees
pursuant to policies (severance benefit provisions contained in individual
agreements with Employees may be used for purposes of determining comparability
of severance policies) in effect immediately prior to the Closing.


 


(c)                                  Subject
to its obligations under applicable law and applicable collective bargaining
agreements, Buyer and its Affiliates shall give credit under each of their
respective employee benefit plans, programs and arrangements in which Employees
participate to Employees for all service prior to the Closing with Seller or
any of its Affiliates, or any predecessor employer to the extent that such
credit was given under similar plans, programs and arrangements by Seller or
any of its Affiliates for all purposes for which such service was taken into
account or recognized by Seller or any of its Affiliates, but not (i) to
the extent crediting such service would result in duplication of benefits, or (ii) for
purposes of benefit accrual under any defined benefit pension plan.


 


(d)                                 Buyer
hereby agrees to pay, and to indemnify Seller from, (i) any and all
termination or severance liability relating to any Employee with respect to any
such liability incurred on or after the Closing Date, including, without
limitation, any liability related to or arising out of WARN, the continuation
coverage rules of Section 4980B of the Code and part 6 of Subtitle B
of Title I of ERISA (“COBRA”), and
any similar state or local laws with respect to the Employees, and (ii) any
liability under any of the Plans.  Subject
to Sections 2.05(f) and 2.07 hereof and except as provided
in Section 2.03 or 2.04 hereof, Seller hereby agrees to pay,
and to indemnify Buyer from, (x) any Liabilities relating to Employees with
respect to any periods prior to the Closing, excluding any Liability payable
after the Closing relating to or arising out of WARN or any similar state or
local laws with respect to Employees, and (y) any Liability under any of the
Plans with respect to any periods prior to the Closing.


 


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ARTICLE 10



CONDITIONS TO CLOSING


 


Section 10.01                     Conditions
to Obligations of Buyer and Seller.


 


The
obligations of Buyer and Seller to consummate the Closing are subject to the
satisfaction or waiver by Buyer and Seller of the following conditions: (i) no
statute, rule or regulation shall have been enacted or promulgated by any
Governmental Authority which specifically prohibits the consummation of the
Closing, and (ii) no judgment, decree, order or injunction of a court of
competent jurisdiction sponsored by a Person other than Buyer or any of its
Affiliates or Governmental Authority shall be in effect seeking to prohibit or
prohibiting the consummation of the Closing.


 


Section 10.02                     Conditions
to Obligation of Buyer.


 


The obligation
of Buyer to consummate the Closing is subject to the satisfaction or waiver by
Buyer of the following further conditions:


 


(a)                                  Representations and Warranties; Covenants.  The representations and warranties of Seller
and Parent contained in this Agreement and in any certificate executed by
Seller or Parent pursuant to this Agreement shall be true and correct in all
material respects as of the Execution Date and as of the Closing Date, as modified
or amended from time to time pursuant to this Agreement, as though made on the
Closing Date except (i) to the extent such representations and warranties
expressly relate to an earlier date, in which case as of such earlier date, (ii) for
any failure of such representations and warranties to be true and correct that
would not, either individually or in the aggregate, constitute a Material
Adverse Effect, and (iii) to the extent such representations and
warranties are qualified by the Due Diligence Materials and Property
Information.  Seller and Parent shall
have materially complied with all agreements and materially satisfied all
conditions on their part to be performed or satisfied under this Agreement at
or prior to the Closing.


 


(b)                                 Officer’s Certificate and Certificate of General
Partner.  Receipt of
certificates, substantially in the form of Exhibit 10.02(b) attached
hereto, executed by a duly authorized officer of each of Seller and GTA GP, Inc.,
the general partner of Parent, to the effect that the conditions set forth in Sections
10.02(a) hereof shall have been satisfied.


 


(c)                                  Bill of Sale.  Receipt of a bill of sale and assignment,
substantially in the form of Exhibit 10.02(c) attached hereto
(the “Bill of Sale”), duly executed by Seller,
which shall provide for the sale, transfer, assignment, conveyance and delivery
of the Acquired Assets that are not Real Property to Buyer.


 


(d)                                 Assignment and Assumption Agreements.  Receipt of the assignment and assumption
agreements duly executed by Seller with respect to the assignable Material Contracts
assumed by Buyer pursuant to this Agreement, substantially in the form of Exhibit 10.02(d) attached
hereto (collectively, the “Assignment and Assumption
Agreements”), which shall provide for the assumption of the Assumed
Liabilities under each such Material Contract by Buyer.


 


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(e)                                  Real Property.  Receipt of a duly executed special warranty
deed with respect to the Innisbrook Real Property and the Condo Property,
substantially in the form of Exhibit 10.02(e) attached hereto
(collectively, the “Deeds”).


 


(f)                                    Leases.  Receipt of the assignment and assumption agreements
duly executed by Seller with respect to any Lease assumed by Buyer pursuant to
this Agreement, substantially in the form of Exhibit 10.02(f) attached
hereto (collectively, the “Lease Assignments”),
which shall provide for the assumption of the Assumed Liabilities under each
such Lease by Buyer.


 


(g)                                 Title Insurance.  There shall have been issued and delivered to
Buyer at Seller’s expense, from Chicago Title Insurance Company (the “Title Company”), a fee owner’s title insurance policy (each,
a “Title Policy” and collectively, the “Title Insurance Policies”) with respect to the Innisbrook
Real Property and the Condo Property in form and substance reasonably
satisfactory to Buyer, together with endorsements reasonably requested by
Buyer, in the aggregate amount of the Purchase Price, insuring Buyer and issued
as of the Closing Date by the Title Company, showing Buyer to have fee simple
title to the Innisbrook Real Property and the Condo Property, in each case
subject only to Permitted Liens.  Buyer
and Seller shall deliver to the Title Company any instruments, affidavits or
indemnities required by the Title Company in connection with the issuance and
delivery of the Title Insurance Policies.


 


(h)                                 1445 Certificate.  Receipt of a duly executed valid certificate
of non-foreign status of Parent in compliance with Section 1445 of the
Code, substantially in the form of Exhibit 10.02(h) attached
hereto.


 


(i)                                     Consents.  Receipt or delivery of all Required Consents
listed in Schedule 10.02(i) attached hereto.


 


(j)                                     GH Securities Regulatory Approvals.


 


(i)                                     Holding
Company shall (i) have filed, or shall have caused GH Securities to file, an
application for change of ownership with the NASD, and (ii) have diligently
pursued, or caused GH Securities to diligently pursue, such application through
all appropriate channels, including participating in any interviews requested
by the NASD.  Holding Company shall have
filed, or shall have caused GH Securities to file and diligently pursue, all
applications and notifications relating to the change of ownership that may be
required by the securities authorities of the State of Florida and any other
state in which GH Securities is licensed as a securities broker and/or as a real
estate broker.  Such applications and
notifications need not be approved by the NASD or the applicable state
securities authorities before the Closing.


 


(ii)                                  In
light of NASD Rule 1017, which requires that the application for change of
ownership be filed no less than thirty (30) days before such change is
effected, until the 31st day after the date on which such application is filed,
title to the GH Securities Stock Interests shall remain in the name of Holding
Company, notwithstanding the delivery of a stock certificate or other
documentation respecting the GH Securities Stock Interests to Buyer at the
Closing Date.


 


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(iii)                               Upon
receipt of NASD approval of such change of ownership, which need not occur
prior to the Closing, Holding Company shall deliver to Buyer letters of
resignation from all officers and directors of GH Securities.


 


(iv)                              In
the event that NASD approval of such change of ownership has not been obtained
within nine (9) months of the Closing Date, Buyer shall have the right to
require Holding Company to transfer the GH Securities Stock Interests for
nominal consideration to any transferee designated by Buyer for a period of
thirty (30) days, beginning at the end of nine (9) months after the
Closing Date.


 


The foregoing
conditions are for the sole benefit of Buyer and may be waived by Buyer, in
whole or in part, at any time and from time to time in the sole discretion of
Buyer.  The failure by Buyer at any time
to exercise any of the foregoing rights shall be deemed a waiver of any such
right.  Buyer shall use commercially
reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, and cooperate with Seller, Holding Company and their
Affiliates to do all things reasonably necessary or desirable to effect the
receipt of NASD approval of the change of ownership of GH Securities
contemplated in this Section 10.02(j).


 


(k)                                  Condition of Acquired Assets and Business.  No Material Adverse Effect with respect to
the Acquired Assets or the Business exists as of the Closing Date.


 


(l)                                     Legal Opinion.  Seller shall cause Seller’s Maryland counsel
to issue to Buyer a legal opinion as to GTA’s due authorization and execution
of this Agreement.


 


Section 10.03                     Conditions
to Obligation of Seller.


 


The obligation
of Seller to consummate the Closing is subject to the satisfaction or waiver by
Seller of the following further conditions:


 


(a)                                  Representations and Warranties; Covenants.  The representations and warranties of Buyer and
Buyer’s Guarantor, if any, contained in this Agreement and in any certificate
executed by Buyer or Buyer’s Guarantor, if any, pursuant to this Agreement
shall be true and correct in all material respects as of the date of the
Execution Date and as of the Closing Date as though made on the Closing Date
except (i) to the extent such representations and warranties expressly
relate to an earlier date, in which case as of such earlier date, and (ii) for
any failure of such representations and warranties to be true and correct that
would not, either individually or in the aggregate, constitute a Material
Adverse Effect.  Buyer and Buyer’s
Guarantor, if any, shall have materially complied with all agreements and
materially satisfied all conditions on its part to be performed or satisfied
under this Agreement at or prior to the Closing.


 


(b)                                 Officer’s Certificates.  Receipt of certificates, substantially in the
form of Exhibit 10.03(b) attached hereto, executed by a duly
authorized officer of each of Buyer and Buyer’s Guarantor, if any, to the
effect that the conditions set forth in Section 10.03(a) hereof
have been satisfied.


 


(c)                                  Bill of Sale.  Receipt of the Bill of Sale duly executed
by Buyer.


 


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(d)                                 Assignment and Assumption Agreements.  Receipt of the Assignment and Assumption
Agreements duly executed by Buyer, including, without limitation, the
Assignment and Assumption Agreements regarding the Rental Pool Agreement, the
Troon Management Agreement and the Westin Management Agreement.


 


(e)                                  Release Agreements.  Receipt of certain release agreements with
respect to the Contracts, including, without limitation, the Rental Pool
Agreement, the Troon Management Agreement and the Westin Management Agreement,
substantially in the form of Exhibit 10.03(e) attached hereto
(collectively, the “Release Agreements”),
which shall provide for the release of Seller of the Assumed Liabilities under
each such Contract by the relevant third party.


 


(f)                                    Leases.  Receipt of the Lease Assignments duly executed
by Buyer.


 


(g)                                 Consents.  Receipt of all Required Consents listed in Schedule 10.03(g) attached
hereto.


 


(h)                                 Fairness Opinion.  Seller and Parent shall have received from
Houlihan Lokey Howard & Zukin Financial Advisors, Inc. a fairness
opinion in a form satisfactory to the GTA Board of Directors in their sole
discretion concluding that the transactions contemplated by this Agreement are
fair to Seller from a financial point of view and Seller shall have received
the Final Board Approval.


 


(i)                                     Closing Transfer Amount.  Receipt of the Closing Transfer Amount in
immediately available funds by wire transfer to an account of Seller with a
bank designated by Seller, by notice to Buyer, which notice shall be delivered
not later than two (2) Business Days prior to the Closing Date, or if not
so designated, then by certified or official bank check payable in immediately
available funds to the order of Seller in such amount; provided, however, that
the amount of funds to be delivered shall be reduced to the extent that Buyer
is required to withhold any portion of the Purchase Price in respect of Taxes
in any jurisdiction.


 


(j)                                     Escrow Funds.  Buyer shall have delivered to Escrow Agent in
immediately available same-day funds by wire transfer to an account of Escrow
Agent designated by Escrow Agent any amounts required by this Agreement.


 


(k)                                  Westin Termination Fee.  In the event Westin elects to terminate the
Westin Management Agreement as a result of the sale of the Resort to Buyer,
Buyer shall deliver to Westin the Westin Termination Fee without demand,
deduction, offset of delay; provided, however, that Buyer’s payment of the
Westin Termination Fee is not intended as between Buyer and Seller to
constitute a waiver by Buyer of any rights Buyer may have under the Westin
Management Agreement as assigned to and assumed by Buyer as of the Closing Date.  Buyer’s failure to pay the Westin Termination
Fee, if any, to Westin in a timely manner shall be a material breach of this
Agreement.


 


(l)                                     Legal Opinion.  Buyer shall cause Buyer’s counsel to issue to
Seller a legal opinion as to the due authorization and execution of CMI and
Nominee, if any, of this Agreement.


 


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ARTICLE 11



SURVIVAL; INDEMNIFICATION


 


Section 11.01                     Survival.


 


The
representations, warranties and covenants of the parties contained in this
Agreement or in any certificate delivered pursuant to this Agreement shall
survive the Closing until November 30, 2006, unless otherwise provided in
this Agreement, at which point they shall automatically expire.


 


Section 11.02                     Indemnification.


 


(a)                                  Subject
to the other provisions of this Article 11, GTA, Seller and Parent,
jointly and severally, hereby indemnify Buyer and its Affiliates (collectively,
the “Buyer Parties”) against and agree to
hold each of them harmless from any and all Damages incurred or suffered after
the Closing by the Buyer Parties, or any of them, arising out of (i) any
misrepresentation or breach of warranty by Seller or Parent, (ii) any
breach of covenant or agreement made or to be performed by Seller or Parent
pursuant to this Agreement, or (iii) any Retained Liability (collectively,
the “GTA/Seller/Parent Indemnified Claims”);
provided, however, that with respect to indemnification by GTA, Seller or
Parent for any GTA/Seller/Parent Indemnified Claims, (1) GTA, Seller and
Parent shall not be liable unless the aggregate amount of Damages with respect
to such GTA/Seller/Parent Indemnified Claims exceeds One Hundred Seventy-Five
Thousand Dollars ($175,000) and then from the first dollar after the first One
Hundred Seventy-Five Thousand Dollars ($175,000) of such Damages, and (2) GTA’s,
Seller’s and Parent’s aggregate maximum liability for all such GTA/Seller/Parent
Indemnified Claims shall not exceed Three Million Dollars ($3,000,000).  Neither GTA, Seller nor Parent shall have any
liability for matters for which Buyer received a Title Policy.


 


(b)                                 Subject
to the other provisions of this Article 11, Buyer and Buyer’s
Guarantor, if any, hereby indemnify the Seller Parties against and agree to
hold each of them harmless from any and all Damages incurred or suffered after
the Closing by the Seller Parties, or any of them, arising out of (i) any
misrepresentation or breach of warranty by Buyer or Buyer’s Guarantor, if any, (ii) any
breach of covenant or agreement made or to be performed by Buyer or Buyer’s
Guarantor, if any, pursuant to this Agreement, or (iii) any Assumed
Liability (collectively, the “Buyer Indemnified Claims”);
provided, however, that with respect to indemnification by Buyer or Buyer’s
Guarantor, if any, for any Buyer Indemnified Claims, (1) Buyer and Buyer’s
Guarantor, if any, shall not be liable unless the aggregate amount of Damages
with respect to such Buyer Indemnified Claims exceeds One Hundred Seventy-Five
Thousand Dollars ($175,000) and then from the first dollar after the first One
Hundred Seventy-Five Thousand Dollars ($175,000) of such Damages, and (2) the
aggregate maximum liability of Buyer and Buyer’s Guarantor, if any, for all
such Buyer Indemnified Claims shall not exceed Three Million Dollars
($3,000,000), except that Buyer and Buyer’s Guarantor, if any, shall be liable
for the full amount (such amounts, if any, not to count toward the Three
Million Dollar ($3,000,000) aggregate maximum liability provided above in this Section 11.02(b))
of certain Buyer Indemnified Claims pursuant to clause (iii) of this Section 11.02(b),
including all Liabilities arising from (A) the Westin Management
Agreement, including, without limitation, 


 


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Sections
4.4 and 4.7.2 therein, (B) the Troon Management Agreement, including,
without limitation, Section 7.03 therein, (C) the Rental Pool
Agreement, including, without limitation, liability for any payments to be made
after the Closing Date to any lessor thereunder regarding certain completed
refurbishments, and (D) the Loan Agreement dated as of July 15, 2004,
by and between Elk Funding, L.L.C. and Parent, regarding a promissory note in
the amount of Seven Hundred Thousand Dollars ($700,000) in the name of
Parent.  Notwithstanding anything to the
contrary set forth in this Agreement, any Liability of Buyer or Buyer’s
Guarantor, if any, for any Assumed Liability shall terminate upon termination
of such Assumed Liability by Buyer.


 


Section 11.03                     Procedures.


 


(a)                                  The
party seeking indemnification under Section 11.02 hereof (the “Indemnified Party”) agrees to give reasonably prompt written
notice to the party against whom indemnity is sought (the “Indemnifying
Party”) of the assertion of any claim, or the commencement of any
suit, action or proceeding (each, an “Action”) in
respect of which indemnity may be sought under Section 11.02 hereof
and will provide the Indemnifying Party such information with respect thereto
that the Indemnifying Party may reasonably request.  The parties hereby acknowledge and agree that
the failure by any Indemnified Party to give notice as provided herein shall
not relieve the Indemnifying Party of its indemnification obligation under this
Agreement except to the extent that (i) such failure results in a failure
of actual notice to the Indemnifying Party and (ii) such Indemnifying
Party is prejudiced as a result of such failure to give notice.


 


(b)                                 The
Indemnifying Party shall be entitled to participate in the defense of,
investigation of, or corrective action required to be undertaken in response
to, any Action asserted by a third party, including any Governmental Authority
(a “Third Party Action”) and, subject to the
limitations set forth in this Section 11.03 or in Section 11.04
hereof, shall be entitled to control and appoint lead counsel for such defense,
in each case at its own expense subject to the “basket” and “cap”, if
applicable, as described in Section 11.02 hereof.


 


(c)                                  If
the Indemnifying Party shall assume the control and cost of the defense of any
Third Party Action in accordance with the provisions of this Section 11.03
or of Section 11.04 hereof, (i) the Indemnifying Party shall
obtain the prior written consent of the Indemnified Party, which shall not be
unreasonably withheld, before entering into any settlement of such Third Party
Action if the settlement does not provide for the unconditional written release
of the Indemnified Party from any and all liabilities and obligations with
respect to such Third Party Action or if the settlement imposes any form of
relief other than monetary against the Indemnified Party and (ii) the
Indemnified Party shall be entitled to participate in the defense of such Third
Party Action and to employ separate legal counsel of its choice for such
purpose.  The fees and expenses of such
separate counsel shall be paid by the Indemnified Party, subject to the “basket”
and “cap”, if applicable, as described in Section 11.02 hereof.  In the event that the Indemnified Party shall
in good faith determine that the conduct of the defense of any claim subject to
indemnification hereunder or any proposed settlement of any such claim by the
Indemnifying Party might be expected to affect adversely the ability of the
Indemnifying Party to conduct its business, or that the Indemnified Party may
have available to it one or more defenses or counterclaims that are
inconsistent with one or more of those that may be available to the Indemnifying
Party in respect of such claim or any litigation relating thereto, the
Indemnified 


 


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Party
shall have the right at all times to take over and assume control over the
defense, settlement, negotiations or litigation relating to any such claim at
the sole cost of the Indemnifying Party subject to the “basket” and “cap”, if
applicable, as described in Section 11.02 hereof, provided that if
the Indemnified Party does so take over and assume control, the Indemnified
Party shall not settle such claim or litigation without the written consent of
the Indemnifying Party, such consent not to be unreasonably withheld.


 


(d)                                 Each
party shall cooperate, and cause their respective Affiliates to cooperate, in
the defense or prosecution of any Third Party Action, including any
counterclaims filed by Seller, Parent or Buyer, and shall provide access to
properties and individuals as reasonably requested and furnish or cause to be
furnished records, information and testimony, and attend such conferences,
discovery proceedings, hearings, trials or appeals, as may be reasonably
requested in connection therewith.  This
cooperation shall be provided without cost or expense of the other party other
than reimbursement of out-of-pocket travel or similar expenses subject to Section 11.02
hereof.


 


(e)                                  Each
Indemnified Party shall use reasonable efforts to collect any amounts available
under insurance coverage, or from any other Person alleged to be responsible,
for any Damages payable under Section 11.02 hereof.


 


Section 11.04                     Additional
Procedures.


 


(a)                                  Except
as required by law or to prevent injury to human health or the environment, no
party to this Agreement shall, and each such party agrees to use commercially
reasonable efforts to ensure that, its Affiliates do not, voluntarily or by
discretionary action, accelerate the timing or increase the cost of any
obligations of the other party under this Article 11.


 


(b)                                 Any
Damages payable by Seller or Parent pursuant to this Article 11
shall be paid first from Seller’s Escrow Amount.


 


Section 11.05                     Calculation
of Damages.


 


The
Indemnifying Party shall not be liable under Section 11.02 hereof
for any Damages relating to any matter to the extent that the Indemnified Party
had otherwise been compensated for such matter pursuant to the Purchase Price
adjustment under Section 2.07 hereof.


 


Section 11.06                     Dispute
Resolutions.


 


If the parties
cannot resolve any claim for indemnification within thirty (30) days after the
notification of such claim pursuant to Section 11.03 hereof,
excluding any Third Party Action, the parties agree to settle such claim by
arbitration in accordance with the then-prevailing Commercial Arbitration Rules of
the American Arbitration Association, as modified herein.  The place of arbitration shall be Tampa,
Florida.  There shall be three neutral
and impartial arbitrators and each arbitrator shall be a duly admitted and
practicing attorney with at least ten (10) years experience as an attorney
in the field of commercial law.  Seller
and Buyer shall each appoint one arbitrator within fifteen (15) days after the
commencement of the arbitration and the two arbitrators selected shall select
the third arbitrator within fifteen (15) days 


 


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of their
appointment.  The arbitrators shall
permit and facilitate such pre-hearing discovery and exchange of documents and
information to which the parties in writing agree or that the arbitrators
determine is relevant to the dispute between the parties and is appropriate
taking into account the needs of the parties and desirability of making
discovery expeditious and cost effective. 
Any discovery permitted hereunder shall be completed within forty-five
(45) days from the date on which the respondent(s) communicate(s) its or their
answer(s) to the claimant(s).  The
arbitration shall be governed by the United States Arbitration Act,
9 U.S.C. §§ 1-16. 
Judgment upon the award of the arbitrators may be entered in the United
States District Court for the Middle District of Florida or any state court
located in the 13th Judicial Circuit of the State of Florida, provided
such court is a court of competent jurisdiction.  The decision of the arbitrators shall be binding
and non-appealable.  Nothing herein shall
justify, allow, excuse or give rise to any extension of the Closing Date or the
parties’ obligations to close the transactions contemplated by this Agreement
as of the Closing Date.  The cost of such
arbitration shall be split equally and the parties shall be responsible for
their own attorneys’ and other fees and expenses.


 


Section 11.07                     Effect of
Investigation.


 


The right to
indemnification, payment of Damages or other remedies based on any
representation, warranty, covenant or obligation of Seller or Parent contained
in or made pursuant to this Agreement shall not be affected by any
investigation conducted with respect to, or any knowledge acquired or capable
of being acquired at any time, whether before or after the Execution Date or the
Closing Date, if any, with respect to the accuracy or inaccuracy of or
compliance with, any such representation, warranty, covenant or
obligation.  The waiver of any condition
to the obligation of Buyer to consummate the Closing, where such condition is
based on the accuracy of any representation or warranty, or on the performance
of or compliance with any covenant or obligation, shall not affect the right to
indemnification, payment of Damages or other remedy based on such
representation, warranty, covenant or obligation.


 


Section 11.08                     Tax
Treatment of Indemnification Payments.


 


Any
indemnification payment made pursuant to this Article 11 shall be
treated as an adjustment to the Purchase Price for Tax purposes.


 


ARTICLE 12



TERMINATION


 


Section 12.01                     Termination.


 


This Agreement
may be terminated at any time prior to the Closing:


 


(a)                                  by
mutual written agreement of Seller and Buyer;


 


(b)                                 by
either Seller or Buyer, if the Closing shall not have been consummated on or
before the Termination Date, so long as the terminating party is not in
material breach of this Agreement and has not acted or failed to act in a
manner which has prevented satisfaction of a condition to Closing;


 


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(c)                                  by
either Seller or Buyer, if consummation of the transactions contemplated hereby
would violate any non-appealable final order, decree or judgment of any court
or Governmental Authority having competent jurisdiction, or any Governmental
Authority shall have adopted any applicable state, federal or foreign law
arising after expiration of the Due Diligence Period specifically and
permanently restraining, enjoining or otherwise prohibiting the transactions
contemplated hereby;


 


(d)                                 by
Seller, so long as neither GTA, Seller, Parent, Holding Company, Condo Owner
nor Management Company is then in material breach of its obligations under this
Agreement, upon a material breach of any covenant or agreement on the part of
Buyer or Buyer’s Guarantor, if any, set forth in this Agreement, or if any
representation or warranty of Buyer or Buyer’s Guarantor, if any, shall have
been or become untrue in a manner which could reasonably be expected to prevent
the consummation of the transactions contemplated by this Agreement; provided,
however, that if any such breach is curable prior to the Termination Date by
Buyer or Buyer’s Guarantor, if any, through the use of its commercially
reasonable efforts, for so long as Buyer or Buyer’s Guarantor, if any,
following written notice with respect to such breach from Seller, shall be
using its commercially reasonable efforts to cure such breach, Seller may not
terminate this Agreement pursuant to this Section 12.01(d) at
any time prior to the Termination Date;


 


(e)                                  by
Buyer, so long as Buyer is not then in material breach of its obligations under
this Agreement, upon a material breach of any covenant or agreement on the part
of Seller set forth in this Agreement, or if any representation or warranty of
Seller or Parent shall have been or become untrue in a manner which could reasonably
be expected to prevent the consummation of the transactions contemplated by
this Agreement; provided, however, that if any such breach is curable prior to
the Termination Date by Seller or Parent through the use of their commercially
reasonable efforts, for so long as Seller or Parent, following written notice
with respect to such breach from Buyer, shall be using their commercially
reasonable efforts to cure such breach, Buyer may not terminate this Agreement
pursuant to this Section 12.01(e) at any time prior to the
Termination Date;


 


(f)                                    by
Buyer, if Seller or any of its Affiliates shall have filed a voluntary petition
under the United States Bankruptcy Code or becomes the subject of an
involuntary petition in a case under the United States Bankruptcy Code, or
otherwise seeks protection from its or their creditors or becomes voluntarily
or involuntarily the subject of insolvency, liquidation, arrangement,
receivership or similar case or proceeding under any law or regulation;


 


(g)                                 by
Seller, if Buyer or any of its Affiliates shall have filed a voluntary petition
under the United States Bankruptcy Code or becomes the subject of an
involuntary petition in a case under the United States Bankruptcy Code, or
otherwise seeks protection from its or their creditors or becomes voluntarily
or involuntarily the subject of insolvency, liquidation, arrangement,
receivership or similar case or proceeding under any law or regulation;


 


(h)                                 by
Seller, pursuant to Section 6.07(c) hereof; provided, however,
that in order for the termination of this Agreement pursuant to this Section 12.01(h) to
be deemed effective, Seller shall have complied with Section 6.07
hereof;


 


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(i)                                     by
Buyer, in the event of a Change of Recommendation;


 


(j)                                     by
either Seller or Buyer, as provided in Section 2.08(e) hereof;


 


(k)                                  by
Seller, pursuant to Section 13.01 hereof;


 


(l)                                     by
Seller, pursuant to Section 8.08 hereof; or


 


(m)                               by
Buyer, pursuant to Section 2.08(f) hereof.


 


The party
desiring to terminate this Agreement pursuant to any of Sections 12.01(b) through
12.01(m) hereof shall promptly give written notice of such termination
to the other party.


 


Section 12.02                     General
Effect of Termination.


 


(a)                                  If
this Agreement is terminated pursuant to Section 12.01 hereof, (i) such
termination shall be without liability of any party, or any stockholder,
director, officer or employee of such party, to any other party to this
Agreement, and (ii) this Agreement shall thereafter become void and have
no effect, except as otherwise set forth in this Agreement.


 


(b)                                 In
the event that this Agreement is terminated after the expiration of the Due
Diligence Period for any reason other than as set forth in this Section 12.02(b),
Buyer shall be entitled to payment by Seller in the amount of Two Million Two
Hundred Fifty Thousand Dollars ($2,250,000) (the “Termination
Fee”) as Buyer’s sole remedy. 
Notwithstanding the foregoing, Buyer shall not be entitled to payment of
the Termination Fee in the event that:


 


(i)                                     Seller
and Buyer terminate this Agreement by mutual written agreement pursuant to Section 12.01(a) hereof;


 


(ii)                                  Seller
terminates this Agreement pursuant to (1) Section 12.01(b) hereof,
(2) Section 12.01(c) hereof, (3) Section 12.01(d) hereof,
(4) Section 12.01(g) hereof, (5) Section 12.01(j)
hereof, (6) Section 12.01(k) hereof, or (7) Section 12.01(l)
hereof; or


 


(iii)                               Buyer
terminates this Agreement pursuant to (1) Section 12.01(c) hereof,
(2) Section 12.01(j) hereof, or (3) Section 12.01(m)
hereof.


 


(c)                                  In
the event that this Agreement is terminated after the expiration of the Due
Diligence Period for any reason other than as set forth in this Section 12.02(c),
Seller shall be entitled to payment of the Deposit Amount as liquidated damages
hereunder.  Notwithstanding the
foregoing, Seller shall not be entitled to payment of the Deposit Amount in the
event that:


 


(i)                                     Seller
and Buyer terminate this Agreement by mutual written agreement pursuant to Section 12.01(a) hereof;


 


79





















 


(ii)                                  Seller
terminates this Agreement pursuant to (1) Section 12.01(c) hereof,
(2) Section 12.01(h) hereof, (3) Section 12.01(j)
hereof, (4) Section 12.01(k) hereof, or (5) Section 12.01(l)
hereof; or


 


(iii)                               Buyer
terminates this Agreement pursuant to (1) Section 12.01(b) hereof,
(2) Section 12.01(c) hereof, (3) Section 12.01(e) hereof,
(4) Section 12.01(f) hereof, (5) Section 12.01(i) hereof,
(6) Section 12.01(j) hereof, or (7) Section 12.01(m)
hereof.


 


(d)                                 In
the event that Seller shall be entitled to payment of the Deposit Amount,
Escrow Agent shall deliver the Deposit Amount to Seller as liquidated damages
hereunder without demand, deduction, offset or delay, and Buyer, on behalf of
itself and its Affiliates, as applicable, hereby covenants and agrees to
execute, acknowledge and deliver to Seller any and all instruments and
documents requested by Seller in order to legally transfer such Deposit Amount
to Seller and/or evidence such transfer. 
ANY DEPOSIT AMOUNT PAID TO OR RETAINED BY SELLER AS LIQUIDATED DAMAGES
UNDER THIS AGREEMENT SHALL, EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, BE
SELLER’S SOLE MONETARY REMEDY IF BUYER FAILS TO CLOSE THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.  THE
PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER’S ACTUAL MONETARY
DAMAGES IN SUCH EVENT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO
ASCERTAIN AND THAT THE LIQUIDATED DAMAGES (I.E., THE VALUE OF THE DEPOSIT
AMOUNT) STATED ABOVE REPRESENT THE PARTIES’ REASONABLE ESTIMATE OF SUCH DAMAGES,
EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT.  THE PAYMENT OF ANY SUCH DEPOSIT AMOUNT BY
BUYER TO SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR
PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER.


 


ARTICLE 13



MISCELLANEOUS


 


Section 13.01                     Casualty
and Condemnation; Risk of Loss.


 


(a)                                  In
the event that between the Execution Date and the Closing there is any
Non-Material (as defined herein) loss or damage to the Acquired Assets, or any
part thereof, resulting from casualty and any business interruption therefrom
attributable to any acts or events occurring between the Execution Date and the
Closing (a “Casualty Loss”), Seller shall not
be deemed in breach of this Agreement, and, at Seller’s election, either (i) Seller
shall at its cost and in a reasonable manner repair or replace such damaged
Acquired Assets prior to the Closing, or (ii) Buyer shall accept such
Acquired Assets in their then-current condition, with an abatement or reduction
in the Purchase Price in an amount reasonably necessary to repair and restore
such damaged Acquired Assets, less the amount of insurance proceeds to be
received by Buyer with respect to such damage, and Buyer and Seller shall
proceed with the Closing.  For purposes
of completing any repairs or replacements under this Section 13.01,
the Closing may be extended for a reasonable time to allow such repairs or
replacements to be made by Seller.


 


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(b)                                 In
the event that between the Execution Date and the Closing, any Non-Material
portion of the Acquired Assets is subject to a taking pursuant to the power of
eminent domain, or any proposed sale in lieu thereof (in each case, a “Taking”), Seller shall not be deemed in breach of this
Agreement and Buyer shall accept the Acquired Assets in their then-current
condition and proceed with the Closing and Buyer shall be entitled to an
assignment of all of Seller’s rights to any award in connection with such
Taking.  In the event of any such
Non-Material Taking, Seller shall not compromise, settle or adjust any claims
to such award without Buyer’s prior written consent, which shall not be
unreasonably withheld.


 


(c)                                  For
the purpose of this Section 13.01, a Casualty Loss or a Taking
shall be deemed “Non-Material” if the reasonably
estimated cost of restoration or repair of such damage or the amount of the
condemnation award with respect of such Taking shall not exceed Five Hundred
Thousand Dollars ($500,000).


 


(d)                                 Seller
agrees to give Buyer prompt notice of any Taking or extraordinary damage or
destruction of the Acquired Assets.


 


(e)                                  If
a Casualty Loss or Taking exceeds Five Hundred Thousand Dollars ($500,000),
Seller shall not be deemed in breach of this Agreement and, at Seller’s
election, may either:


 


(i)                                     proceed
to the Closing and, at the Closing, assign all insurance proceeds, and all
rights of Seller to any award in connection with such Casualty Loss or Taking,
to Buyer, except to the extent that the relevant insurance is related to
business interruption or extraordinary expenses incurred prior to the Closing.  If insurance proceeds in respect of such
Casualty Loss or Taking that are available for the costs of repair and
restoration of the Acquired Assets are reasonably estimated by Buyer to be
insufficient to cover the Casualty Loss or Taking, or if the Casualty Loss or
Taking is uninsured, the parties shall reduce the Purchase Price by the amount
of the estimated shortfall in insurance proceeds available for such costs.  In any case where the Casualty Loss or Taking
is insured, at the Closing the Purchase Price shall be reduced by any
deductible applicable to the insurance coverage; or


 


(ii)                                  elect
not to close with respect to the Acquired Assets, in which case (A) Seller
shall have the right to sell the Business and the Acquired Assets to any third
party without any obligation to Buyer whatsoever, and (B) the Deposit
Amount shall be returned to Buyer in accordance with the provisions of Article 3
hereof; provided, however, in the event Seller elects not to close this
transaction pursuant to this Section 13.01(e)(ii), Buyer shall have
five (5) Business Days from Seller’s written notice thereof to elect by
written notice to Seller in a form reasonably satisfactory to Seller to (x)
waive all rights to any Purchase Price adjustment, proceeds, awards or Damages
relating to the Casualty Loss or Taking, if any, and (y) acquire the Acquired
Assets and assume the Assumed Liabilities on an “AS IS-WHERE
IS” basis with no Purchase Price reduction and with all faults related
to the Casualty Loss or Taking.


 


(f)                                    In
the event of a Casualty Loss, Seller shall, in cooperation with Buyer, promptly
and diligently file and pursue recovery of all appropriate insurance claims and
to the 


 


81





















 


extent
of any insurance proceeds recovered, with Buyer’s consent, apply such proceeds
to the restoration of the Acquired Assets. 
In the event any lender on an Acquired Asset damaged by a Casualty Loss
exercises any rights with respect to the applicable insurance proceeds
resulting in such proceeds not being available for restoration of the Acquired
Assets or assignment to Buyer, the Purchase Price shall be reduced by the
amount of the proceeds taken by such lender unless the obligation in satisfaction
of which such lender exercises such rights is assumed by Buyer pursuant to this
Agreement.  Insurance proceeds for
business interruption losses shall be applied to such losses and shall not be
counted against property casualty losses. 
At the Closing, if any, subject to any limitations in the applicable
policy, Seller shall pay to Buyer any business interruption proceeds actually
received by Seller after the Execution Date for a Casualty Loss or Taking
occurring after the Execution Date, net of any applicable premium or collection
costs, or assign to Buyer the right to receive the same.


 


(g)                                 All
risk of loss or damage to the Acquired Assets and any part thereof, including,
without limitation, loss or damage resulting from a Casualty Loss, Taking or
any business interruption resulting therefrom shall be borne by Buyer upon the Closing.


 


(h)                                 The
provisions of this Section 13.01 supersede the provisions of any
applicable statutory or decisional law with respect to the subject matter of
this Section 13.01.


 


Section 13.02                     Notices.


 


All notices,
requests and other communications to any party hereunder shall be in writing,
to include facsimile transmission, and shall be given (i) by personal
delivery to the appropriate address as set forth below, or at such other
address for the party as shall have been previously specified in writing to the
other parties, (ii) by reliable overnight courier service with
confirmation to the appropriate address as set forth below, or at such other
address for the party as shall have been previously specified in writing to the
other parties, or (iii) by facsimile transmission with confirmation to the
appropriate facsimile number set forth below, or at such other facsimile number
for the party as shall have been previously specified in writing to the other
parties, with follow up copy by reliable overnight courier service the next
Business Day:


 


if to Buyer, to:


 


CMI Financial Network, LLC

201 Alternate 19 South

Palm Harbor, Florida  34683

Attention:  Mr. Nick Russo

Fax:  (516) 873-0513


 


and


 


CMI Financial Network, LLC

3050 K Street, Suite 220

Washington, D.C.  20006

Attention:  Mr. Vincent Sedmak

Fax:  (703) 533-9111


 


82





















 


with a copy to:


 


Chernett Wasserman Yarger &
Pasternak, LLC


The Tower at Erieview, Suite 3300


1301 East 9th Street


Cleveland, OH  44114


Attention: 
Steven L. Wasserman, Esq.


Joel R. Pentz, Esq.


Fax: 
(216) 737-0011


 


if to GTA, to:


 


Golf Trust of America, Inc.


10 North Adger’s Wharf


Charleston, SC  29401


Attention: 
Mr. W. Bradley Blair, II


Mr. Scott D. Peters


Fax: 
(843) 723-0479


 


with a copy to:


 


O’Melveny & Myers LLP


275 Battery Street, Suite 2600


San Francisco, CA  94111-3305


Attention: 
Peter T. Healy, Esq.


Fax: 
(415) 984-8701


 


if to Seller, to:


 


GTA-IB, LLC


10 North Adger’s Wharf


Charleston, SC  29401


Attention: 
Mr. W. Bradley Blair, II


Mr. Scott D. Peters


Fax: 
(843) 723-0479


 


with a copy to:


 


O’Melveny & Myers LLP


275 Battery Street, Suite 2600


San Francisco, CA  94111-3305


Attention: 
Peter T. Healy, Esq.


Fax: 
(415) 984-8701


 


if to Parent, to:


 


Golf Trust of America, L.P.


10 North Adger’s Wharf


 


83





















 


Charleston, SC  29401


Attention: 
Mr. W. Bradley Blair, II


Mr. Scott D. Peters


Fax: 
(843) 723-0479


 


with a copy to:


 


O’Melveny & Myers LLP


275 Battery Street, Suite 2600


San Francisco, CA  94111-3305


Attention: 
Peter T. Healy, Esq.


Fax: 
(415) 984-8701


 


if to Holding Company, to:


 


GTA-IB Golf Resort, LLC


10 North Adger’s Wharf


Charleston, SC  29401


Attention: 
Mr. W. Bradley Blair, II


Mr. Scott D. Peters


Fax: 
(843) 723-0479


 


with a copy to:


 


O’Melveny & Myers LLP


275 Battery Street, Suite 2600


San Francisco, CA  94111-3305


Attention: 
Peter T. Healy, Esq.


Fax: 
(415) 984-8701


 


if to Condo Owner, to:


 


GTA-IB Condominium, LLC


10 North Adger’s Wharf


Charleston, SC  29401


Attention: 
Mr. W. Bradley Blair, II


Mr. Scott D. Peters


Fax: 
(843) 723-0479


 


with a copy to:


 


O’Melveny & Myers LLP


275 Battery Street, Suite 2600


San Francisco, CA  94111-3305


Attention: 
Peter T. Healy, Esq.


Fax: 
(415) 984-8701


 


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if to Management Company, to:


 


GTA-IB Management, LLC


10 North Adger’s Wharf


Charleston, SC  29401


Attention: 
Mr. W. Bradley Blair, II


Mr. Scott D. Peters


Fax: 
(843) 723-0479


 


with a copy to:


 


O’Melveny & Myers LLP


275 Battery Street, Suite 2600


San Francisco, CA  94111-3305


Attention: 
Peter T. Healy, Esq.


Fax: 
(415) 984-8701


 


All such
notices, requests and other communications shall be deemed received on the date
of receipt by the recipient thereof if received prior to 5:00 p.m. in the
place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or
communication shall be deemed not to have been received until the next
succeeding Business Day in the place of receipt.


 


Section 13.03                     Confidentiality.


 


(a)                                  CMI
and Nominee, if any, agree that the Confidentiality Agreement shall be binding
on CMI and Nominee, if any, as of September 12, 2005, as if CMI and
Nominee, if any, had executed the same in the first instance.


 


(b)                                 Except
as hereinafter provided or as provided in the Confidentiality Agreement, from
and after the Execution Date, Buyer and Seller shall keep the terms, conditions
and provisions of this Agreement and all information delivered by Seller to
Buyer or by Buyer to Seller under, pursuant to or in connection with this
Agreement confidential and no party shall make any public announcements thereof
unless the Buyer or Seller, as relevant, approves the same in writing, nor shall
either disclose the terms, conditions and provisions of this Agreement, except
to their respective consultants, advisors, attorneys, accountants, engineers,
surveyors, financiers, Seller’s proposed third-party purchasers and bankers
(but only to the extent necessary to accomplish the purposes of this Agreement
and only if such party first obtains such Person’s agreement to maintain the
confidentiality of such information; provided, however, that in the case of
engineers, surveyors and other third-party consultants consulted during the due
diligence process, the disclosing party shall use its best efforts to cause
such Person to maintain the confidentiality of such information) or as may be
required by law or court order, or as may be required in connection with any
litigation between the parties hereto relating to this Agreement or the
transactions contemplated hereby. 
Notwithstanding the foregoing, it is acknowledged that GTA is a public
company and that GTA intends to make a public announcement concerning, among
other things, this transaction.  GTA will
have the absolute right to prepare and file all necessary or required proxy
statements and other papers, documents and instruments necessary 


 


85





















 


or
required in Parent’s or GTA’s and their respective legal counsel’s judgment in
order to enter into and consummate, among other things, the transactions
contemplated by this Agreement and to disclose the terms, conditions and
provisions of this Agreement therein to the Securities and Exchange Commission
and/or similar federal or state authorities and the public as necessary or
advisable in Parent’s or GTA’s and their respective legal counsel’s judgment.  The obligations of this Section 13.03
shall survive any termination of this Agreement.


 


Section 13.04                     Amendments
and Modifications.


 


This Agreement
may be amended, modified or supplemented in any and all respects, but only by a
written instrument signed by all of the parties hereto expressly stating that
such instrument is intended to amend, modify or supplement this Agreement.


 


Section 13.05                     Expenses.


 


Except as
otherwise provided in this Agreement, all costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost
or expense.


 


Section 13.06                     Attorneys’
Fees.


 


Should any
action or other proceeding be necessary to enforce any of the provisions of
this Agreement or the various transactions contemplated hereby, the prevailing
party will be entitled to recover its reasonable and actually incurred
attorneys’ fees and expenses from the non-prevailing party.


 


Section 13.07                     Successors
and Assigns.


 


The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns; provided,
however, that GTA, Seller, Parent, Holding Company, Condo Owner, Management
Company and Buyer may not assign, delegate or otherwise transfer any of their
rights or obligations under this Agreement without the consent of the other
parties hereto, except that Buyer may assign its right and delegate its duties
under this Agreement in whole or in part to one or more of its Affiliates but
no such assignment shall relieve Buyer of its obligations hereunder.


 


Section 13.08                     Governing
Law.


 


THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF FLORIDA WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OR CHOICE OF LAWS OR ANY OTHER LAW THAT WOULD MAKE THE
LAWS OF ANY OTHER JURISDICTION OTHER THAN THE STATE OF FLORIDA APPLICABLE
HERETO.


 


Section 13.09                     Consent to
Jurisdiction.


 


Each of the
parties hereto (a) consents to submit itself to the personal jurisdiction
of the United States District Court for the Middle District of Florida or of
any state court located in the 13th Judicial Circuit of the State
of Florida in the event any dispute arises out of this Agreement 


 


86





















 


or the
transactions contemplated hereby, (b) agrees that it will not attempt to
deny or defeat such personal jurisdiction by motion or other request for leave
from any such court, and (c) agrees that it will not bring any action
relating to this Agreement or the transactions contemplated by this Agreement
in any court other than a Federal court located in the State of Florida or
a state court located in the State of Florida. 
Process in any such suit, action or proceeding may be served on any
party anywhere in the world, whether within or without the jurisdiction of any
such court.  Without limiting the
foregoing, each party agrees that service of process on such party as provided
in Section 13.02 hereof shall be deemed effective service of
process on such party.


 


Section 13.10                     WAIVER
OF JURY TRIAL.


 


EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 13.11                     Counterparts;
Third Party Beneficiaries.


 


This Agreement
may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.  This Agreement
shall become effective when Parent, Seller and Buyer shall have received a
counterpart hereof signed by the other parties hereto.  No provision of this Agreement is intended to
confer upon any Person other than the parties hereto any rights or remedies
hereunder except for Indemnified Parties pursuant to Article 11
hereof.


 


Section 13.12                     Entire
Agreement.


 


This Agreement
and the documents, agreements, certificates, and instruments referred to herein
and therein, including, without limitation, the Confidentiality Agreement,
constitute the entire agreement between the parties with respect to the subject
matter of this Agreement and supersede all prior agreements and understandings,
both oral and written, between the parties with respect to the subject matter
of this Agreement.


 


Section 13.13                     Headings.


 


The article,
section, paragraph and other headings contained in this Agreement are inserted
for convenience of reference only and shall not affect in any way the meaning
or interpretation of this Agreement.


 


Section 13.14                     Severability.


 


Any term or
provision of this Agreement that is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction.  If the final judgment of a court of competent
jurisdiction or other authority declares that any term or provision hereof is
invalid, void or unenforceable, the parties agree that the court making such
determination shall have the power to reduce the scope, duration, area or 


 


87





















 


applicability
of the term or provision, to delete specific words or phrases, or to replace
any invalid, void or unenforceable term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision.


 


Section 13.15                     Specific
Performance.


 


Seller and
Parent acknowledge and agree that in the event of a material breach of this
Agreement by Seller and Parent prior to the Closing and Buyer elects to proceed
with the Closing, Buyer would be irreparably and immediately harmed and could
not be made whole by monetary damages. 
Therefore, Seller and Parent agree to the granting of specific
performance of this Agreement and injunctive or other equitable relief in favor
of Buyer as a remedy for any such material breach so long as there is proof of
actual damages.  The remedy provided for
in this Section 13.15 shall be deemed to be the exclusive remedy
for a material breach of this Agreement, and the parties shall not be entitled
to any other remedies available at law or equity.


 


Section 13.16                     Extension;
Waiver.


 


At any time
prior to the Closing, all of the parties hereto may mutually agree to (i) extend
the time for the performance of any of the obligations or acts of any party
hereto, (ii) waive any inaccuracies in the representations and warranties
of any party contained herein or in any document delivered hereby, (iii) waive
compliance with any of the agreements of any party contained herein, or (iv) waive
any condition to any party’s obligations hereunder.  Any agreement on the part of a party hereto
to any such extension or waiver shall be valid only if set forth in a written
instrument signed on behalf of all parties hereto.  Except as otherwise provided in this
Agreement, no failure or delay in exercising any right, power or privilege
hereunder will operate as a waiver thereof, nor will any single or partial
exercise thereof preclude any other or further exercise of any right, power or
privilege hereunder.


 


[REMAINDER OF THIS PAGE
INTENTIONALLY LEFT BLANK]


 


88





















 


IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above
written.


 


	
   

  	
   

  	
  “GTA”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GOLF TRUST OF AMERICA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ W.
  Bradley Blair II

  	
   

  
	
   

  	
   

  	
   

  	
  Name: W.
  Bradley Blair II

  	
   

  
	
   

  	
   

  	
   

  	
  Title:    President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  “PARENT”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GOLF TRUST OF AMERICA, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ W.
  Bradley Blair II

  	
   

  
	
   

  	
   

  	
   

  	
  Name: W.
  Bradley Blair II

  	
   

  
	
   

  	
   

  	
   

  	
  Title:
     President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  “SELLER”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GTA-IB, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ W.
  Bradley Blair II

  	
   

  
	
   

  	
   

  	
   

  	
  Name: W.
  Bradley Blair II

  	
   

  
	
   

  	
   

  	
   

  	
  Title:
     President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  “HOLDING COMPANY”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GTA-IB GOLF RESORTS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ W.
  Bradley Blair II

  	
   

  
	
   

  	
   

  	
   

  	
  Name: W.
  Bradley Blair II

  	
   

  
	
   

  	
   

  	
   

  	
  Title:
     President

  	
   

  



 


89





















 


	
   

  	
   

  	
  “CONDO OWNER”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GTA-IB CONDOMINIUM, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ W.
  Bradley Blair II

  	
   

  
	
   

  	
   

  	
   

  	
  Name: W.
  Bradley Blair II

  	
   

  
	
   

  	
   

  	
   

  	
  Title:
     President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  “MANAGEMENT COMPANY”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GTA-IB MANAGEMENT, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ W.
  Bradley Blair II

  	
   

  
	
   

  	
   

  	
   

  	
  Name: W.
  Bradley Blair II

  	
   

  
	
   

  	
   

  	
   

  	
  Title:
     President

  	
   

  



 


90





















 


	
   

  	
   

  	
  “BUYER”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CMI FINANCIAL NETWORK, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Vincent Sedmak

  	
   

  
	
   

  	
   

  	
   

  	
  Name:
  Vincent Sedmak

  	
   

  
	
   

  	
   

  	
   

  	
  Title:
     Director

  	
   

  



 


91





















 


	
  Agreed as to Article 3:

  	
   

  
	
   

  	
   

  
	
  “ESCROW AGENT”

  	
   

  
	
   

  	
   

  
	
  CHICAGO TITLE INSURANCE COMPANY

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Jenny
  A. Joiner

  	
   

  
	
  Name:

  	
  Jenny A. Joiner

  
	
  Title:

  	
  Commercial Closer

  
					



 


92