NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4606-05T24606-05T2

SPRING CREEK HOLDING COMPANY,

INC.,

Plaintiff-Appellant,

v.

SHINNIHON U.S.A. CO., LTD.,

Defendant-Respondent.

________________________________________________________________

Argued September 10, 2007 - Decided

Before Judges Cuff, Lisa and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Sussex County, Docket No. C-43-03.

Ben H. Harris, III (Miller, Hamilton, Snider & Odom, L.L.C.) of the Alabama bar, admitted pro hac vice, argued the cause for appellant (Edward A. Stein, attorney; Mr. Stein and Mr. Harris, on the brief).

Steven M. Richman argued the cause for respondent (Duane Morris LLP, attorneys; Mr. Richman, of counsel and on the brief; Jonathan L. Swichar, on the brief).

The opinion of the court was delivered by

LISA, J.A.D.

This appeal implicates the right of a seller of real estate to declare the buyer in material breach and terminate the agreement of sale based upon the seller's assertion that it reasonably believed the buyer would not perform, it demanded adequate assurance of performance from the buyer, and the buyer failed to provide such assurance. The seller, Shinnihon U.S.A. Co., Ltd. (Shinnihon) took this action with respect to its agreement with the buyer, Spring Creek Holding Company, Inc. (Spring Creek). Spring Creek filed this suit, seeking damages from Shinnihon for breach of contract. It also sought specific performance. After extensive discovery and the submission by the parties of a documentary record which they both deemed complete, the parties filed cross-motions for summary judgment. The Chancery Division granted Shinnihon's motion and dismissed Spring Creek's complaint. The court denied Spring Creek's motion, which sought an order of specific performance.

Spring Creek appeals. It argues that its summary judgment motion should have been granted and Shinnihon's should have been denied. Alternatively, Spring Creek argues that material issues of fact are in dispute, necessitating a trial. Finally, Spring Creek argues that the case should be remanded for further consideration in light of the jury verdict in a federal lawsuit between its feuding shareholders resolving which faction was entitled to control Spring Creek's affairs. The rift between the shareholders was at the heart of its inability to fulfill its obligations under the agreement. Shinnihon terminated the agreement in June 2003. The federal action between the shareholders was pending when the trial court decided this case in October 2005. The federal jury verdict was returned in October 2006.

We conclude that the trial court correctly determined that no rational factfinder could find that Shinnihon did not reasonably believe that Spring Creek would not perform, that it did not request reasonable assurance of performance, and that Spring Creek did not fail to provide such assurance. We further conclude that the apparent resolution of the dispute among Spring Creek's shareholders more than three years after termination of the agreement has no bearing on the outcome of this litigation. We therefore affirm.

I

The nonperformance was not a failure to pay money. Indeed, Spring Creek tendered payment of the full contract price. The agreement did not contemplate merely a sale of land in exchange for money by a seller disinterested in the buyer's use of or activities with respect to the land after completion of the sale. The seller here owned and would continue to own a large improved adjoining tract of land, in which it had a substantial investment. Thus, the agreement contemplated particular zoning approvals for the parcel being conveyed to Spring Creek and the negotiation of further agreements regarding the development and use of the conveyed parcel and that retained by Shinnihon. It was Spring Creek's inability to perform with respect to those issues that led Shinnihon to seek assurance, and, when not furnished, to terminate the agreement.

The dispute developed over an extended period of time and was not caused by a single event or circumstance. To adequately explain the dispute and place it in proper perspective, we deem it necessary to set forth a detailed recitation of the events leading up to the agreement of sale between Shinnihon and Spring Creek, and the events occurring during the pendency of the agreement up to the time of termination.

The property is part of a 600-acre tract in Vernon Township. In the 1980s, Princeton-New York Investors (PNY) owned and operated the entire property as the Great Gorge Playboy Club and Resort. Included is a twenty-seven-hole golf course covering approximately 275 acres, now known as the Great Gorge Golf Course. A hotel, now known as the Legends Resort and Country Club, covers forty-three acres. An undeveloped 280-acre parcel, referred to in various agreements as the "Remainder Property," is the subject of this litigation.

In November 1990, PNY agreed to sell the golf course to Shinnihon. To overcome land use restrictions against the separation of the golf course prior to sale, the parties agreed to transfer legal ownership of the golf course and Remainder Property to Shinnihon, with PNY retaining equitable title to the non-golf course property. This Remainder Agreement provided that Shinnihon would purchase the entire parcel for $20 million. Shinnihon agreed to return the Remainder Property to PNY for nominal consideration after an amendment to the master deed effected the division of the parcel. PNY was obligated to pay taxes and other charges associated with the Remainder Property and to pursue its subdivision.

PNY failed to make some of the tax payments. In 1994, PNY filed for bankruptcy. In 1998, through the bankruptcy proceedings, Seasons Investment Corporation (SIC) purchased for $9.1 million the hotel and PNY's right to reacquire from Shinnihon the Remainder Property. SIC immediately conveyed the hotel to Metairie Corporation (Metairie), by way of a $9 million mortgage note issued by Noramco NJ, Inc. (Noramco). The president of Metairie was Marvin Keith. Shinnihon sued SIC seeking a declaratory judgment absolving it of its obligations under the Remainder Agreement, arguing that PNY breached the agreement by failing to pay the real estate taxes.

Keith saw tremendous potential in this project. He wished to renovate and convert the hotel into an upscale timeshare facility, which would then serve as the centerpiece of a large timeshare community adjacent to the golf course. Keith envisioned developing the Remainder Property with "very high end" timeshare units as the perfect complement to the resort.

In June 1999, during the pendency of Shinnihon's suit against SIC, Keith formed Spring Creek, and was its sole shareholder. John Lamb, an attorney representing Keith, was the registered agent of Spring Creek. Upon its incorporation, Spring Creek entered into an agreement with SIC by which SIC assigned to Spring Creek its rights under the Remainder Agreement. SIC retained a twenty percent net profit participation interest in the Remainder Property. In July 1999, SIC assigned its participation interest to Noramco. Spring Creek was substituted in place of SIC in the litigation with Shinnihon, and, after an adverse final decision, filed an appeal.

Experiencing financial difficulties with the management of the hotel, Keith sought an investment source to avoid a loan default. Seymour Svirsky and Hillel Meyers agreed to become investors and to provide financial assistance in exchange for one-third shareholder interests in both Metairie and Spring Creek. According to Meyers, creation of the shareholder interest was critical to this January 2000 deal, because the development potential of the Remainder Property provided the sole justification for a risky investment in the hotel.

During the pendency of the appeal, Shinnihon and Spring Creek entered into settlement discussions. Shinnihon claimed entitlement to reimbursement for various sums it advanced that should have been paid by PNY or its successors. Lamb represented Spring Creek, and Steven Richman represented Shinnihon in these discussions, which resulted in the execution of a Settlement Agreement on August 24, 2000.

The Settlement Agreement required Spring Creek to dismiss the appeal and pay Shinnihon a nonrefundable sum of $100,000. The parties agreed to protect the 1989 preliminary site plan approvals from the Vernon Township Zoning Board of Adjustment (zoning board) to develop 678 residential units on the Remainder Property and to cooperate in further processing the application. Spring Creek agreed to submit final site plans to Shinnihon prior to their official submission and promised that the development of the units would not adversely affect the operation of the golf course.

The Settlement Agreement contemplated Shinnihon's construction of an additional nine-hole golf course on approximately fifty-seven acres of the Remainder Property. The Settlement Agreement defined the Remainder Property, less the fifty-seven acres, as the "Residential Development Parcel." Upon attainment of final zoning approvals, Shinnihon would convey the Residential Development Parcel to Spring Creek for an additional $2 million.

The Settlement Agreement was carefully structured to assure that Spring Creek's residential development on the Remainder Property would not interfere with Shinnihon's operation of the golf course, including the additional nine holes that Shinnihon might later develop. It contained, for example, these provisions:

6. Approval: Relocation of Units

(a) . . . . The Approvals shall consist of 678 units (including patio homes, condos, townhouses and villas) on the Remainder Property reconfigured so that if Shinnihon desires, the Additional Nine Hole Golf Course can be constructed and so that there shall be no more than 365 "unit footprints" on that portion of the Remainder Property located around the 27 Hole Golf Course, with units on that Residential Development Parcel (excluding the Non-Contiguous Part) being able to be stacked, unless Shinnihon consents in writing to additional footprints. The balance of the 678 units remaining may be located on that portion of the Remainder Property located across Route 517 by the main entrance of the Legends Resort (the "Non-Contiguous Part").

(b) The "unit footprints" shall be divided into three sections (Sections I, II and III) and the section on the Non-Contiguous Parcel (as defined herein) shall be Section IV, as reflected in the fifth revision to the site plan. Spring Creek or its assignee shall cooperate with respect to Shinnihon's maintenance, use and operation of the Golf Course, and Shinnihon shall cooperate with respect to future development of the Residential Development Parcel so long as such development does not materially and adversely affect the use, operation or playability of the Golf Course.

. . . .

7. No Material Adverse Effect on Golf Course

(a) The 678 units (or such lesser amount as approved and accepted) to be constructed shall not materially or adversely affect the use of the Golf Course by Shinnihon, in Shinnihon's sole opinion, and the parties shall exercise their best efforts to reasonably agree upon the location of the units to minimize any interference with Shinnihon's Golf Course, including without limitation impact on sewage, drainage and irrigation, as well as construction. The parties agree that Shinnihon has no objection to the number of units developed on the Non-Contiguous Part of the Remainder Property, since any proposed units are not contiguous to the Golf Course, but Shinnihon reserves the right to require Spring Creek to take appropriate corrective measures, at Spring Creek's sole cost and expense, in the event a material and adverse effect on the Golf Course occurs. Notwithstanding the foregoing, Shinnihon agrees that the 365 footprint units have no material adverse effect in terms of their location in accordance [with] the fifth amended site plan prepared by Shinnihon. In addition, in connection with the construction of any roads that cause relocation or replacement of any Golf Course features such as greens, fairways, bunkers, cart paths, hazards and the like, then the cost of such replacement or relocation shall be the sole responsibility of Spring Creek.

(b) Spring Creek agrees to utilize best efforts to deliver any final site plans relating to the future development of the Residential Development Parcel to Shinnihon for review at least 30 days prior to the intended submission of such plan to the Vernon Township Zoning Board or such other agency as may be appropriate or relevant.

The Settlement Agreement provided that Shinnihon would be required to convey the Residential Development Parcel to Spring Creek upon "obtaining any and all of the Approvals referenced in Paragraph 6 which have become final and non-appealable, or agreement by Spring Creek to accept a lesser amount of approved units." The Settlement Agreement also contained the following "Remedies" clause:

13. Remedies

In the event that the Approvals referenced in Paragraph 6 are not obtained and Spring Creek does not otherwise accept Approvals for a lesser number of units or units not containing the mix of types specified in Paragraph 6 ["including patio homes, condos, townhouses and villas"], then Shinnihon shall have no obligation to convey the Residential Development Parcel referenced in Paragraph 9, and shall retain title to the Remainder Property in its entirety.

Meyers, Svirsky and Keith each signed the Settlement Agreement on behalf of Spring Creek. Spring Creek dismissed the appeal and paid $100,000 to Shinnihon on August 28, 2000. At that point, the contours of Lamb's representation began to blur. A rift over the right to control Spring Creek was developing between Keith on the one hand and Svirsky and Meyers on the other. By letter dated August 29, 2000, Lamb informed Richman that his firm "no longer represents Spring Creek, and my clients, Messrs. Svirsky and Meyers, will decide how to acquire the property."

Contrary to Lamb's statement that he would not represent Spring Creek, he continued to act on its behalf in correspondence with Shinnihon, Vernon Township, and other attorneys, engineers and entities. Lamb's uncertain scope of representation was a symptom of a larger growing problem. According to Meyers, Keith began in late 2000 to experience "seller's remorse" and did not wish to be bound by the terms of the earlier shareholder agreements. Keith began to represent to third parties that Svirsky and Meyers lacked authority to bind Spring Creek. According to Keith, Svirsky and Meyers breached their agreements with him, thus divesting Svirsky and Meyers of their right to control Spring Creek. The validity of either faction's contentions was immaterial. The significant circumstance was that the dispute over control existed and affected the ability of the parties to proceed with development approvals. The disagreement also interfered with the ability of the parties to proceed with other agreements mutually affecting them. The Settlement Agreement contemplated that the parties would negotiate "any other agreement they deem necessary to resolve other miscellaneous issues between them, including but not limited to those affecting sewage and effluent, borders and boundaries, and other environmental issues." The record reflects that negotiations regarding some of these issues were in progress. Of course, if it could not be determined which faction spoke for and had authority to bind Spring Creek, any such discussions and ultimate agreements could be for naught.

On July 20, 2001, Keith wrote to Shinnihon's president questioning Lamb's ability to bind Spring Creek:

I only recently was apprised that Shinnihon wished to set a time of the essence closing for the above transaction. I now understand Shinnihon's counsel sent the notice . . . to John Lamb, Esq. I have great difficulty in determining who John Lamb represents at any given time, but he does not represent me or my company, Spring Creek Holding Company, Inc.

Richman wrote to Lamb on August 7, 2001 to express concern over Keith's assertions:

While it does not appear that there is a challenge to Spring Creek's authority to have entered into the settlement agreement at the time, we are concerned that we are receiving communications from someone else purporting to speak on behalf of Spring Creek while we are continuing to pursue discussions with you on behalf of Spring Creek.

Please clarify who speaks for Spring Creek.

Lamb replied on August 15, 2001, expressing somewhat inconsistent positions:

I have been authorized by Messrs. Meyers and Svirsky, who own a majority of the shares of stock in [Spring Creek], are President and Secretary of Spring Creek, respectively, and constitute the sole members of the Board of Directors, to take certain actions on behalf of Spring Creek. Mr. Keith is a minority shareholder.

Because of the involvement of this matter with Mr. Keith, I will not be representing Spring Creek in any issues involving Spring Creek. . . . I have and continue to advise the shareholders that I will not get involved in an internal dispute between them and I will provide them with the facts and documents that I have in my possession. I will continue to provide the services I have been authorized to provide unless the President of the Company, Mr. Meyers, the Board of Directors, or the Corporation request I not do so.

Notwithstanding the shareholder dispute, Spring Creek and Shinnihon continued their efforts to procure final zoning approvals. Svirsky certified that the timely prosecution of the zoning application was "critical to performance under the Shinnihon Agreement." Spring Creek, through Svirsky and Meyers, filed a development application in August 2001, and the zoning board scheduled a hearing for October 3, 2001.

Keith's attorney, Stephen W. Gruhin, disrupted the process with a letter to the zoning board disputing that Svirsky and Meyers had authority to prosecute the application on Spring Creek's behalf. He alleged that fraudulent and bad faith acts by Svirsky and Meyers voided the original agreement to grant them one-third interests in the Remainder Property. This November 28, 2001 letter demanded that the zoning board withhold action with respect to the pending application. It stated:

Please be advised that this firm represents Marvin Keith, both individually and in his capacity as the sole shareholder, director and officer of Spring Creek Holding Company, Inc. . . .

Subsequent to Keith's execution of the [Settlement] Agreement in the presence of Shinnihon's authorized representative, Kiyoshi Fujinami, it appears that Messrs. Seymour Svirsky and Hillel Meyers, purportedly acting on behalf of a limited liability company known as Spring Creek Holding Company LLC, replaced the signature page executed on August 24, 2000 by Keith (on Spring Creek Inc.'s behalf) and Fujinami (on Shinnihon's behalf), with another signature page executed by Svirsky and Meyers in their therein stated capacities as two (2) of the three (3) members of Spring Creek LLC, while a blank signature line indicating Keith's involvement as the third member of Spring Creek LLC is also included on the replacement page.

Thus, Keith asserts that following the Agreement's bona fide execution as aforesaid by him and Fujinami, its signature page was tampered with. . . .

In order for the Zoning Board of Adjustment to understand the complexity of the existing disputes between Keith, Svirsky and Meyers, it bears mention that these parties (including Metair[i]e) are currently involved in several ongoing disputes, both related and unrelated to the Remainder Property . . . .

At this juncture, however, Keith asserts that any transactions in which he originally became involved in with Svirsky and Meyers through Metair[i]e are either void or voidable . . . .

While it is anticipated that all of these issues will ultimately be resolved on a "global" basis in litigation yet to be commenced between the parties, the fact remains that Spring Creek LLC has no rights (contractual, equitable or otherwise) in and to the [Settlement] Agreement generally and the Remainder Property specifically.

To respond to some of Gruhin's assertions, and to request adequate assurance of performance, Richman wrote to Lamb on December 3, 2001. He stated:

I have reviewed my file as well as my copy of the Settlement Agreement. I confirm that my copy shows signatures of S[v]irsky, Keith and Meyers on the same page, although for an entity called Spring Creek Holding Co., LLC. However, the opening paragraph of the Settlement Agreement is in the name of Spring Creek Holding Company, Inc. . . . It is apparent that this typographical error escaped everyone's notice—yours, mine and the signatories.

. . . As I have mentioned in the past when Mr. Keith sent us his first letter in which he purported to speak on behalf of Spring Creek Holding Company, Inc., and particularly in view of the various statements made to Shinnihon by you as to the numerous and different corporate entities involved on your end, Shinnihon requests assurance that it is dealing with the people who have the authority to bind Spring Creek and any other entity that needs to be involved in these agreements. We don't want to finally execute the agreements we have been discussing, only to find that Mr. Keith is bringing an action that not only challenges them, but names Shinnihon as a defendant. At this point we will also require indemnification in favor of Shinnihon by Spring Creek Holding Company, Inc. and your individual clients for all time spent in responding to Mr. Keith, or in defending any action he may bring.

[Emphasis added.]

Richman also requested certain corporate documentation from both Gruhin and Lamb to prove Keith's authority, or lack of it, to bind Spring Creek. It appears from the record that Lamb provided oral assurance to Richman, but neither Lamb nor Gruhin immediately provided the requested documents. Gruhin informed Richman on January 4, 2002 that the internal dispute between Svirsky, Meyers and Keith could implicate Shinnihon in litigation.

Richman wrote to Lamb on January 14, 2002 to reiterate Shinnihon's request for assurance of Spring Creek's ability to comply with the Settlement Agreement. Richman concluded:

Shinnihon's position at this point is simply stated: Shinnihon entered into the Settlement Agreement in good faith and has done what has been required of it under that agreement. Shinnihon has also sought to negotiate with Spring Creek the related agreements necessary under the Settlement Agreement for Shinnihon to protect and maintain the integrity of the golf course. We have been negotiating those agreements with you and Messrs. S[v]irsky, Meyers and [Al Warrington]. We have now received yet another urgent communication from Mr. Gruhin stating in essence we should be dealing with Marvin Keith.

Shinnihon cannot be in a position where it is seeking to finalize agreements with Spring Creek that may be subject to attack by one of Spring Creek's principals on the grounds that such agreements are "ultra vires" or without authority, or conversely, have your clients attack anything done with Marvin Keith. As we approach the new golfing season, and the application remains before the Zoning Board, it is imperative that Shinnihon have assurance (beginning with the corporate documents I have requested) that you and your clients have authority to speak for Spring Creek. The situation must be clarified and resolved.

Gruhin wrote to Lamb and Richman on January 16, 2002 to assert Keith's authority and to provide the alleged proofs. He attached Spring Creek's 1999 certificate of incorporation, an issuance of common stock to Keith, and an Internal Revenue Service letter assigning Spring Creek an employer identification number, mailed to Keith's home address. Gruhin wrote:

Based on Keith's production, in response to your requests, of the foregoing corporate "proofs" confirming his complete ownership of and total control over [Spring Creek], we anticipate that your client, [Shinnihon] will now recognize him (as opposed to Messrs. Seymour Svirsky and Hillel Meyers and their counsel, John Lamb, Esq.) as the true and only party in interest having the right to both speak for and on behalf of, and make all corporate decisions pertaining to and/or involving [Spring Creek].

. . . .

In the unfortunate eventuality, however, that Shinnihon is unwilling to cooperate . . . this letter serves to place it on ACTUAL NOTICE that Keith, acting both individually and on behalf of [Spring Creek], shall be left with no alternative, but to name Shinnihon as a co-defendant in litigation imminently to be commenced against Messrs. Svirsky, Meyers and others to protect the remainder lands and related interests . . . .

Dennis A. Estis, the attorney acting on behalf of Svirsky and Meyers with respect to the dispute with Keith, responded to Richman on January 17, 2002. He alleged that "Mr. Gruhin's letters are based upon half-truths, innuendo and, what appears to be, fraud on the part of his client and others." He also attached eight sets of documents to assure Shinnihon of Meyers and Svirsky's authority to act for Spring Creek. This letter stated:

As you can readily see from the enclosed documents, Keith acknowledged under oath on two occasions in January 2000 and reaffirmed on August 30, 2000 the fact that Hillel Meyers and Seymour Svirsky are the majority shareholders, members of the Board of Directors, and the President and Secretary/Treasurer, respectively, of Spring Creek.

. . . .

In your letter of December 3, 2001, you requested that Spring Creek provide Shinnihon with "assurances that it is dealing with the people who ha[ve] the authority to bind Spring Creek and any other entity that needs to be involved in these agreements." Messrs. Meyers and Svirsky, as evidenced by the enclosed documents, constitute the majority shareholders, the sole officers, and the sole members of the Board of Directors of Spring Creek, and, therefore, have sole authority to bind Spring Creek.

On January 29, 2002, Svirsky, Meyers and Spring Creek filed suit against Keith in federal court, seeking to enjoin Keith from taking unauthorized actions on behalf of Spring Creek. The complaint alleged Keith's attempt to disrupt Spring Creek's prosecution of the zoning application and to interfere with the Settlement Agreement. In his March 1, 2002 answer and counterclaim, Keith alleged that Svirsky and Meyers lacked authority to bind Spring Creek and that their one-third shareholder interests were conditioned upon their satisfaction of a number of financial obligations, which they did not satisfy.

The two factions disagreed over the character of the residential development for the project. Keith insisted upon timeshare units, which he felt would be more profitable. Svirsky and Meyers were of the view that timeshares in the hotel were not selling as expected and it would not be advisable to construct additional ones. They sought to enter into a deal with Pulte Homes, Inc. (Pulte), a large and reputable home builder, to construct condominium units. Svirsky and Meyers agreed to authorize Pulte to act on Spring Creek's behalf to present modified plans to the zoning board. The modified plans entailed a reduction in the total number of units.

Spring Creek and Pulte executed an agreement to this effect on February 22, 2002. It contemplated the creation of "multi-family garden apartments, townhouses, patio houses and/or attached single family residential buildings . . . and associated recreational facilities." The agreement obligated Pulte to purchase the Remainder Property "upon [Pulte's] obtaining all permits and approvals necessary or required in order for [Pulte] to lawfully construct not less than four hundred eighty (480) Units . . . and to sell same to third party home purchasers."

In light of the federal lawsuit, Richman wrote to Lamb on April 4, 2002 seeking assurance of Spring Creek's ability to prosecute the zoning application. Estis responded on April 15, 2002, assuring Richman that "there is absolutely no basis in fact or in law for Mr. Keith's claim that he is the sole shareholder." He said that the federal litigation would end "the wild and untrue allegations that [Keith] is the sole shareholder of Spring Creek." Richman immediately responded that, with a "full reservation of all rights, and without prejudice to claims and defenses," the issue would remain "open" until a judge ruled on the "internecine battles" described in the pleadings.

After learning of the agreement between Spring Creek and Pulte, Shinnihon was further concerned as to which entity had authority to and was prosecuting the zoning application, which, under the Settlement Agreement, was to be prosecuted jointly by Shinnihon and Spring Creek. Lamb, purportedly speaking for Spring Creek, assured Richman that there was no assignment of the Settlement Agreement from Spring Creek to Pulte, but that Pulte was given "complete authority to negotiate on Spring Creek's behalf the issues related to the proposed project and your client's golf course." On December 13, 2002, Richman noted continuing doubts in his letter to Pulte's counsel:

[W]e have sought to obtain a response from Spring Creek as to the status of its relationship with you. While I appreciate your comments, the fact remains that Spring Creek is the party to the Settlement Agreement. We have spent over two years trying to narrow the issues and negotiate them.

Shinnihon was willing to meet and discuss its issues with Pulte as part of Shinnihon's continuing cooperation with Spring Creek under the Settlement Agreement. It did so after being advised by John Lamb that the Settlement Agreement had not been assigned, and that Spring Creek was still the responsible party. Your letter states that the certainty has been resolved to the extent that Pulte is now the responsible party. Does this mean that Pulte can bind both Spring Creek and Metairie to all negotiated terms, and guarantee performance of them? Will Pulte be guaranteeing performance by Spring Creek in terms of its application for a modified permit . . . ? We have been told repeatedly by Spring Creek that there has been no assignment of the Settlement Agreement, and have never been shown the Spring Creek/Pulte contract. Your letter on its face portrays Pulte as an agent. What we do not want is to spend another round of time negotiating with Pulte, only to find that Spring Creek will reject the items. On the other hand, if we are now being told that Pulte has ultimate authority to negotiate because it is in essence the owner, then we need to evaluate our position vis-