ASSIGNMENT AND ASSUMPTION AGREEMENT
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ASSIGNMENT AND ASSUMPTION AGREEMENT, made as of the 30th day of June,
1997 (this "Agreement"), between CARVER GOLF ENTERPRISES, INC., a Massachusetts
corporation, doing business as Supersports Family Fun Park, having an address
at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Assignor"), CARVER
FAMILY GOLF CENTERS, INC., a Delaware corporation having an address at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Assignee") and Family
Golf Centers, Inc., a Delaware corporation, having an address at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("FGC").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, by a Lease, dated December 31, 1992, as amended by two
addenda, dated August 1993 and August 1996, respectively, and as further
amended and restated by a Commercial Lease (Restated), dated June 30, 1997, by
and between ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇., tenants in common known as ▇▇▇▇▇▇▇ ASSOCIATES and ▇▇▇▇▇▇▇ ASSOCIATES
LIMITED PARTNERSHIP (collectively "Landlord"), as Landlord, and Assignor, as
tenant, Landlord leased to Assignor, and granted to Assignor a purchase option
in respect of, that certain property located in the Town of Carver, Plymouth
County, Massachusetts, described on Exhibit "A" attached hereto and made a part
hereof (such property together with all structures and improvements situated
thereon being referred to herein collectively as the "Premises") (such Lease
and such purchase option being referred to herein collectively as the "Lease");
and
WHEREAS, Assignor desires to assign to Assignee its entire interest as
tenant under the Lease and Assignee desires to accept such assignment and
assume Assignor's obligations under the Lease on the terms and conditions
hereinafter set forth; and
WHEREAS, Assignor desires to sell to Assignee and Assignee desires to
purchase from Assignor substantially all of the business conducted on the
Premises, except the portion of the business of Seller related to the Hayride
Assets (as defined in Section 3.3) (the "Business"); and
WHEREAS, Assignor desires to assign to Assignee and Assignee desires
to assume certain liabilities of Assignor related to the Business as described
herein.
NOW, THEREFORE, in consideration of the terms and conditions set forth
herein, and other good and valuable consideration, the mutual receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree to the
foregoing and as follows:
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1. Assignment and Assumption. Assignor hereby assigns, sets over and
transfers to Assignee all right, title and interest of Assignor in and to the
Premises and the Lease, and Assignee assumes and agrees to perform any and all
of the obligations to be performed by Assignor as the tenant under the Lease
(as if Assignee executed the Lease originally as tenant thereunder) accruing
from and after June 30, 1997, which Lease is attached hereto as Exhibit "B".
Assignee further agrees to be bound by and fully responsible for all of the
covenants, agreements, terms, provisions, and conditions of Assignor as tenant
under the Lease to be performed by Assignor from and after the Closing Date (as
defined in Section 6.1). Assignee agrees that the obligations assumed hereunder
and agreements contained herein shall benefit Landlord and its successors and
assigns as well as Assignor. Upon the full execution and delivery of this
Agreement, Assignor shall deliver possession of the Premises to Assignee, free
of all tenancies or rights of possession other than those listed on the title
policy to be issued to FGC or Assignee by First American Title Insurance
Company in connection with the transactions contemplated in this Agreement at
the Closing (as defined below).
2. ▇▇▇▇ of Sale. Assignor does hereby sell, assign, transfer and
convey to Assignee, and Assignee does hereby purchase and acquire from
Assignor, all of Assignor's right, title and interest in and to the following
property (collectively, the "Property"):
2.1 all furnishings, fixtures, machinery, equipment, vehicles and
personalty attached or appurtenant to or used in connection with the Lease that
are owned by Assignor, and all inventories, supplies, sales, marketing and
instructional materials of every kind and description relating to the Business,
wherever located, including without limitation, the items described on Exhibit
"C" attached hereto and made a part hereof, but excluding the Hayride Assets
(the "Personal Property");
2.2 the files, books, notices and other correspondence from any
governmental agencies, and other records used or employed by Assignor or its
affiliates in connection with the ownership and/or operation of the Business
(collectively, the "Records");
2.3 any consents, authorizations, variances, waivers, licenses,
certificates, permits and approvals held by or granted to Assignor in
connection with the ownership of the Lease or the Property or the operation of
the Business (collectively, the "Permits");
2.4 the contracts, leases and other agreements of or relating to
the operation of the Business described on Exhibit "D" attached hereto and made
a part hereof (the "Contracts");
2.5 any manufacturers' and vendors' warranties and guarantees,
except to the extent the same relate solely to any Retained Assets or Retained
Liabilities (as hereinafter defined) (the "Claims"); and
2.6 any other properties and assets of every kind and nature,
real or personal, tangible or intangible (including, without limitation, the
exclusive right to the use of Assignor's trade name "Supersports Family Fun
Park"), relating in any way whatsoever to the Lease, the Premises or the
Business, except to the extent the same relate solely to the Retained Assets or
Retained Liabilities.
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3. Assets to be Retained by Assignor. Anything herein to the contrary
notwithstanding, Assignor shall not sell, and Assignee shall not acquire, the
following assets of Assignor (the "Retained Assets"):
3.1 any rights of Assignor with respect to insurance policies
owned by Assignor or for which Assignor is the named insured; and
3.2 all cash, funds in bank accounts, and cash equivalents
existing as of the Closing Date.
3.3 all assets of Seller related to the operation of the Haunted
Hayride, as listed on Schedule 3.3 hereto ("Hayride Assets").
4. Assumption of Certain Liabilities. Assignee shall assume and agree
to pay and discharge when due all liabilities and obligations of Assignor under
the Lease, the Contracts and the Business to the extent the same arise from and
after the Closing Date (the "Assumed Liabilities"). Except for the Assumed
Liabilities, Assignor shall retain, and Assignee shall not assume, perform,
discharge or pay, and shall not be responsible for, any and all liabilities or
obligations of any nature whatsoever in connection with or relating to the
Lease, the Premises or the Property, Assignor or the Business or any
predecessor owner of the Lease, the Premises, the Property, or the Business to
the extent the same arise before the Closing Date (collectively, the "Retained
Liabilities").
5. Consideration.
5.1 In consideration for the assignment of the Lease and the sale
of the Property:
5.1.1 FGC shall issue and deliver to Assignor 114,000 shares
of the common stock, par value $.01 per share, of FGC (the "FGC Shares"), of
which 5,000 shares ("Escrow Shares") shall be held in escrow and distributed in
accordance with the Escrow Agreement, dated of even date herewith (the "Escrow
Agreement"), among Assignor, Assignee, FGC and Continental Stock Transfer and
Trust Company (the "Escrow Agent"); and
5.1.2 Assignee shall assume the Assumed Liabilities.
6. Closing; Adjustments; Post-Closing Delivery of Audited Financial
Statements.
6.1 The closing of the transactions provided for in this
Agreement (the "Closing") shall take place simultaneously with the execution
and delivery of this Agreement (the actual date of the Closing being referred
to herein as the "Closing Date").
6.2 The parties hereto agree that (i) all compensation payable to
Landlord under the Lease and all other operating expenses of Assignor relating
to the Lease, the Premises and the Business set forth in Schedule 6.2 (i.e.,
cost of goods sold, advertising, collections, fees, hired services, insurance,
miscellaneous expenses, postage, repairs and maintenance, supplies, taxes,
utilities, wages and interest on indebtedness, but specifically not including
professional fees and
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expenses, travel and lodging or depreciation), and (ii) all income of Assignor,
including accounts receivable, shall be apportioned at Closing between Assignor
and Assignee as of the Closing Date based on the portion of each such expense
or revenue attributable to the period falling before the Closing Date on the
one hand, which Assignor shall bear the responsibility and benefit of, and the
portion of each such expense or revenue attributable to the period falling on
or after the Closing Date, on the other hand, which Assignee shall bear the
responsibility and benefit of (the "Adjustment"). The net Adjustment will be
paid at Closing by the party owing the same to the other in cash or by
certified or official bank check or wire transfer. The expenses and liabilities
for which Assignor shall be liable pursuant to this Section 6.2 shall be
included within the meaning of the term "Retained Liabilities".
6.3 To the extent that any of the prorations made pursuant to
this Article 6 are based upon estimates of payments to be made and/or expenses
to be incurred by Assignee subsequent to the Closing Date, or either party
discovers any errors in or omissions in respect of the Adjustment, Assignor and
Assignee agree to adjust such prorations promptly upon receipt by Assignor or
Assignee, as the case may be, of such payments or of bills or other
documentation setting forth the actual amount of such expenses.
6.4 Assignor and Assignee shall maintain and make available to
each other any books or records necessary for the adjustment of any item
pursuant to this Article 6. The provisions of this Article 6 shall survive the
Closing.
6.5 At the Closing:
6.5.1 Assignor shall execute and deliver to Assignee such
assignments, bills of sale and other instruments of conveyance as are necessary
or desirable to accomplish the sale, conveyance, assignment, transfer and
delivery of the Lease and the Property by Assignor to Assignee in accordance
with this Agreement;
6.5.2 FGC and Assignor shall execute and deliver the
Registration Rights Agreement, dated of even date herewith, by which FGC grants
Assignor certain rights to have certain of the FGC Shares registered under the
Securities Act of 1933, as amended (the "Registration Rights Agreement");
6.5.3 The parties and the Escrow Agent shall execute and
deliver the Escrow Agreement; and
6.5.4 One or more of the parties shall deliver certain other
documents related to the transactions contemplated hereby.
6.6 As payment in full of consideration payable by Assignee to
Assignor pursuant to this Agreement, FGC shall deliver to Assignor three stock
certificates two of which shall be registered in Assignor's name for 104,200
FGC Shares and 5,000 FGC Shares and one of which shall be registered in the
name of ▇▇▇▇ ▇▇▇▇ ("▇▇▇▇") for 4,800 FGC Shares (as further described below).
Immediately after such delivery, Assignor shall deliver to the Escrow Agent, to
be held and
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distributed in accordance with the Escrow Agreement, the certificate for 5,000
FGC Shares together with a stock power duly endorsed in blank by Assignor.
6.7 Assignor has advised Assignee that Assignor owes ▇▇▇▇, having
an address at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, compensation for
services rendered by ▇▇▇▇ to Assignor in connection with the transactions
contemplated by this Agreement, and that ▇▇▇▇ has elected to invest the
compensation owing to him in shares of FGC common stock. Accordingly,
immediately after the Closing, subject to ▇▇▇▇ executing and delivering the
letter agreement substantially in the form of Exhibit F hereto, Assignor shall
surrender to FGC the stock certificate for 4,800 FGC Shares referred to in
Section 6.6.
6.8 Assignor covenants and agrees that, not later than 20
business days after the date of this Agreement, Assignor shall deliver to FGC
(i) a true and complete copy of the audited financial statement of Assignor as
of December 31, 1996 (the "Audited 1996 Financial Statement"), together with
the unqualified audit report thereon of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CPA, independent
certified public accountant, (ii) the unaudited balance sheet of Assignor as of
March 31, 1997 and the related statement of income of Assignor for the quarter
then ended (the "Interim Financial Statements") and (iii) internal monthly
income reports for the period April 1, 1997 through June 30, 1997 (the "Monthly
Reports").
7. Representations and Warranties of Assignor. Assignor hereby
represents and warrants to Assignee as follows:
7.1 Organization: Power and Authority. Assignor is a corporation
duly organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts, and has all requisite power and authority to
carry on its business as it is now being conducted, to execute, deliver and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby. Assignor has no subsidiaries.
7.2 Due Authorization and Execution: Effect of Agreement. The
execution, delivery and performance by Assignor of this Agreement, the Escrow
Agreement, the Registration Rights Agreement and the other instruments,
agreements, certificates and documents executed and delivered by Assignor in
connection with the transactions contemplated hereby (collectively, the
"Transaction Documents"), and the consummation by Assignor of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary
corporate action required to be taken on the part of the Assignor. Each of this
Agreement and the other Transaction Documents has been duly and validly
executed and delivered by Assignor and constitutes the valid and binding
obligation of Assignor, enforceable in accordance with its terms. The
execution, delivery and performance by Assignor of this Agreement and the other
Transaction Documents and the consummation by Assignor of the transactions
contemplated hereby and thereby will not, with or without the giving of notice
or the lapse of time, or both, (a) violate any provision of any law, rule or
regulation to which Assignor is subject; (b) violate any order, judgment or
decree applicable to Assignor; or (c) conflict with or result in a breach of or
a default under any term or condition of Assignor's organizational documents or
any term or condition of any agreement or other instrument to which Assignor is
a party or by which it or its assets may be bound, except in each case, for
violations,
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conflicts, breaches or defaults which in the aggregate would not materially
adversely affect the condition of the Premises or the operation of the
Business.
7.3 Consents. No consent, approval or authorization of, exemption
by, or filing with, any governmental or regulatory authority or any third party
is required in connection with the execution, delivery and performance by
Assignor of this Agreement or any of the other Transaction Documents, except
for consents, approvals, authorizations, exemptions and filings, if any, which
have been obtained.
7.4 Compliance with Applicable Laws. Assignor is not engaging in
any activity or omitting to take any action as a result of which Assignor is in
violation of any law, rule, regulation, ordinance, statute, order, injunction
or decree, or any other requirement of any court or governmental or
administrative body or agency, applicable to the Lease, the Premises or the
Business, and none of the execution and delivery by Assignor of this Agreement
or of any of the other Transaction Documents, the performance by Assignor of
its obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby will result in any such violation. Assignor is
in compliance with all material requirements imposed in writing by any
insurance carrier of Assignor to the extent such carrier is an insurer or
indemnitor of the Lease or the Premises. The Premises are not subject to any
notice of violation of law, municipal ordinance, orders or requirements issued
by any building department or other governmental agency or subdivision having
jurisdiction.
7.5 Permits. All Permits required by any federal, state, or local
law, rule or regulation and necessary for the occupancy and use of the Premises
and the operation of the Business as currently being occupied, used and
conducted have been obtained and are currently in effect. No registrations,
filings, applications, notices, transfers, consents, approvals, orders,
qualifications, waivers or other actions of any kind are required by virtue of
the execution and delivery of this Agreement or any of the other Transaction
Documents or the consummation of the transactions contemplated hereby or
thereby, including, without limitation, any necessary or desirable (a) to avoid
the loss of any Permit or the violation of any law, regulation, order or other
requirement of law, (b) to assign the Lease or transfer the Property to
Assignee as contemplated hereby or (c) to enable Assignee to continue the
operation of the Business as presently conducted after the Closing. The current
use and occupation of any portion of the Premises does not violate any of, and,
where applicable, is in material compliance with, the Permits, any applicable
deed restrictions or other covenants, restrictions or agreements including
without limitation, any of the Permitted Exceptions (hereinafter defined), site
plan approvals, zoning or subdivision regulations or urban redevelopment plans
applicable to the Lease.
7.6 The Lease. Attached hereto as Exhibit "B" is a true and
correct copy of the Lease. The Lease is in full force and effect, has not been
modified or amended in any way except as stated above and neither Landlord nor
Assignor is in default, or sent or received any notice of default, in respect
of the Lease. No event has occurred or circumstance exists which, with the
giving of notice or the passage of time, or both, would constitute a default
under the Lease. Neither Assignor nor Landlord has exercised any right or
option, or stated its intent, to terminate or cancel the Lease. Assignor has
not assigned, transferred or conveyed the Lease or any interest therein, or
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granted any right or option with respect thereto, to any party other than
Assignee. The initial expiration date of the Lease is December 31, 2002.
7.7 Personal Property. Exhibit "C" sets forth a complete list of
all Personal Property necessary for the use and operation of the Business as
currently conducted, including any material trademarks, service marks, trade
names, service names, business names and other intellectual property owned by
Seller and used in for the conduct of the Business.
7.8 Title to the Lease and Property. Assignor owns and, upon the
Closing is transferring to Assignee, all right, title and interest in, to and
under the Lease and the Property, free and clear of any and all liens, charges,
encumbrances, mortgages, pledges, security interests, easements, agreements and
other interests and adverse claims (collectively, "Encumbrances"), other than
the matters set forth in Exhibit "E" attached hereto and made a part hereof
(the "Permitted Exceptions").
7.9 Contracts. Except for the Hayride Assets, the Lease and the
Contracts listed on Exhibit "D" attached hereto, Assignor is not a party to any
leases, contracts, orders or agreements relating to the Premises, the Property
or the Business (written or otherwise).
7.10 Condition of the Improvements. There are no material
structural or mechanical defects in the structures or improvements situated on
the Premises, and there are no leaks in any roof of any structure on the
Premises.
7.11 Condition of Personal Property. The Personal Property is in
good operating condition and repair, ordinary wear and tear excepted, and is
adequate, suitable and sufficient to meet the needs of and to operate the
Business and the Property as currently conducted.
7.12 Environmental, Health and Safety Laws. Assignor is not now,
nor has it been in the past, in violation of any Environmental, Health and
Safety Laws (as such term is hereinafter defined). Assignor is not subject to
any order requiring cleanup or any other remediation of any contamination,
pollution or other condition. No proceeding is pending or (to the knowledge of
Assignor) threatened charging Assignor with any violation of any Environmental,
Health and Safety Laws or seeking cleanup or remediation of any contamination,
pollution or other condition and there is no basis on which any such claim
could be brought. No claim has been asserted or threatened by any person
against Assignor for personal injury or property damage resulting from exposure
to Hazardous Substances (as such term is hereinafter defined) released,
discharged or disposed of by Assignor and there is no basis on which any such
claim could be brought. Except in compliance with Environmental, Health and
Safety Laws, there is no solid, liquid or gaseous material present at the
surface or subsurface levels of the Premises or present in the air or water
surrounding the Premises which is in excess of any concentration levels or
standards prescribed or permitted under any Environmental, Health and Safety
Laws, nor does any condition or state of affairs exist on or about the Premises
that currently requires, or that under the provisions of any presently enacted
Environmental, Health and Safety Laws will, to the knowledge of Assignor, in
the future require, any investigation, remediation or closure. The term
"Environmental, Health and Safety Laws" means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, the
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Resource, Conservation and Recovery Act of 1976, and the Occupational Safety
and Health Act of 1970, each as amended to and in effect on the Closing Date,
together with all other laws in effect on the Closing Date (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings,
and charges thereunder) of federal, state and local governments (and all
agencies thereof) concerning pollution or protection of the environment, public
health and safety, or employee health and safety. The term "Hazardous
Substance" means (a) petroleum or petroleum products, (b) hazardous substances,
hazardous wastes, hazardous materials or toxic substances as defined under
Environmental, Health and Safety Laws, and (c) any other chemical, material or
substances the presence or release of which in or into the environment is
regulated by any governmental agency or authority.
7.13 Tax Proceedings. There are no proceedings pending regarding
the reduction of real estate taxes or assessments in respect of the Premises.
There has been duly filed by or on behalf of Assignor, or a filing extension
from the appropriate federal, state, foreign and local governments or
governmental agencies has been obtained with respect to, all federal, state,
local and foreign income, profits, franchise, gross receipts, payroll, sales,
employment, use, property, withholding, excise and other tax ("Taxes") returns
and reports required to be filed on or prior to the date hereof, and all of
such Tax returns and reports are correct and complete in all material respects.
Payment in full or adequate provision for the payment of all Taxes required to
be paid in respect of the periods covered by such Tax returns and reports has
been made and a reserve which Assignor reasonably believes to be adequate has
been set up for the payment of all such Taxes anticipated to be payable in
respect of periods through the date hereof. The federal income tax returns
required to be filed by or on behalf of Assignor under the Internal Revenue
Code of 1986, as amended (the "Code"), have either been examined by the
Internal Revenue Services ("IRS") or the period during which any assessments
may be made by the IRS has expired for all years up to and including the
taxable year ended December 31, 1992 and any deficiencies or assessments
asserted in writing by the IRS have either been paid or are being contested in
good faith by appropriate proceedings and are adequately reserved against. All
other Taxes due and payable by or on behalf of Assignor have either been paid
or adequately reserved for or are being contested in good faith by appropriate
proceedings (except for such Taxes which are in the aggregate immaterial in
amount). Assignor has not, with regard to any property held, acquired or to be
acquired by it, filed a consent pursuant to Section 341(f) of the Code or any
predecessor statute.
7.14 Utilities. All water, storm and sanitary sewer, gas,
electricity, telephone and other utilities adequately service the Premises,
enter the Premises through lands as to which valid public or private easements
exist that will inure to the benefit of Assignee and the Premises is furnished
by facilities of public utilities and the cost of installation of such
utilities has been fully paid.
7.15 Access. Except as set forth in Schedule 7.15 attached
hereto, to Assignor's knowledge, there are no federal, state, county, municipal
or other governmental plans to change the highway or road system in the
vicinity of the Premises which could materially restrict or change access from
any such highway or road to the Premises, or any pending or threatened
condemnation or eminent domain proceedings relating to or affecting the
Premises.
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7.16 Insurance Requirements. All requirements or recommendations,
if any, by any insurer or by any board of fire underwriters or similar body in
respect of the Premises, the Property or the Business have been satisfied in
all material respects. The properties and operations of Assignor are, and at
all times during the past four years have been, insured under various policies
of general liability and other forms of insurance covering such risks as are
usually insured against by prudent companies engaged in the businesses and
activities in which Assignor is engaged, in amounts which are adequate in
relation to the business and properties of Assignor, and all premiums to date
have been paid in full. Assignor has furnished Assignee with true and correct
copies of such policies. Assignor has not been refused any insurance, nor has
its coverage been limited, by an insurance carrier to which it has applied for
insurance or with which it has carried insurance during the past five years.
7.17 Litigation. There is no action or proceeding (zoning or
otherwise) or governmental investigation pending, or, to the best of Assignor's
knowledge, threatened against, or relating to, Assignor (insofar as it relates
to the Lease, the Premises or the Business), the Lease, the Premises, the
Business or the transactions contemplated by this Agreement, nor is there any
basis for any such action, proceeding or investigation.
7.18 Assessments. There are no special or other assessments for
public improvements or otherwise now affecting the Premises nor does Assignor
know of (a) any pending or threatened special assessments affecting the
Premises, or (b) any contemplated improvements affecting the Premises that
governmental authorities have determined will result in special assessments
affecting the Premises.
7.19 Employee Agreements. There are no union or employment
contracts or agreements (written or oral) involving employees of Assignor or
its affiliates affecting the Premises or the Business which will survive the
Closing. All employees of Assignor who are employed to work at the Premises
will have been terminated as of the Closing Date.
7.20 Work at the Premises. No services, material or work have
been supplied to the Premises for which payment has not been made in full in
the ordinary course of business of Assignor.
7.21 Financial Condition. Not later than 20 business days after
the date of this Agreement, Assignor shall deliver to FGC true and complete
copies of (i) the Audited 1996 Financial Statement, together with the
unqualified audit report thereon of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CPA, independent certified
public accountant, (ii) the Interim Financial Statements and (iii) the Monthly
Reports. When delivered to FGC in accordance with Section 6.8, the Audited 1996
Financial Statement will present fairly the financial position of Assignor as
of the date indicated. When delivered to FGC in accordance with Section 6.8,
the Interim Financial Statements will present fairly the financial position of
Assignor as of the respective dates indicated and the results of operations of
Assignor for the respective periods specified. The Interim Financial Statements
and the Audited 1996 Financial Statement will be prepared in accordance with
the books and records of Assignor and in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved, subject, in the case of the Interim Financial Statements, to normal,
recurring
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year-end audit adjustments. When delivered to FGC in accordance with Section
6.8, the Monthly Reports will present fairly the information provided as of the
respective dates indicated and will have been compiled on a basis consistent
with that of the financial statements referred to above and will be in
accordance with the books and records of Assignor. Since December 31, 1996: (a)
there has at no time been a material adverse change in the financial condition,
results of operations, businesses, properties, assets, liabilities or future
prospects of Assignor, the Premises, the Property or Business; (b) the Business
has been conducted in all respects only in the ordinary course; and (c)
Assignor has not suffered an extraordinary loss (whether or not covered by
insurance) or waived any right of substantial value. Except for any liabilities
arising in the ordinary course of its business consistent with past practices
(none of which is a liability for breach of contract, breach of warranty,
torts, infringements, claims or lawsuits), since December 31, 1996, the
Assignor has not (i) incurred or accrued any liabilities, debts or obligations,
whether absolute, contingent, unliquidated or otherwise and whether due or to
become due, arising out of any transaction entered into prior to or on the date
hereof or out of any state of facts existing prior to or as of the date hereof;
or (ii) declared or paid any dividend or distribution to its stockholders or
redeemed or repurchased any of its capital stock. Immediately after the Closing
and after giving effect to all changes in its assets and liabilities as a
result of the transactions contemplated by this Agreement, Assignor will be
solvent (however solvency is determined under applicable law). Consummation of
the transactions contemplated by this Agreement has not resulted in a
fraudulent conveyance, and none of such transactions will be void or voidable
under any insolvency, fraudulent conveyance or similar law.
7.22 Full Disclosure. To the best knowledge of Assignor, none of
the information supplied by Assignor herein or in the Exhibits or Schedules
hereto contains any untrue statement of a material fact or omits to state a
material fact required to be stated herein or necessary in order to make the
statements herein, in light of the circumstances under which they are made, not
misleading.
7.23 Labor Matters. Assignor has not suffered any strike,
slowdown, picketing or work stoppage by any union or other group of employees
affecting the Business and to Assignor's knowledge no such event or action is
threatened. There are no unfair labor practice charges or grievances pending or
in process or to the knowledge of Assignor threatened by or on behalf of any
employee or group of employees of Assignor, and no written complaints received
by Assignor, or threatened, or, with respect to unresolved complaints, on file
with any federal, state or local governmental agency, alleging employment
discrimination or sexual harassment by Assignor or any of its officers or
employees. Assignor is not a party to any collective bargaining agreement.
7.24 Employee Benefit Plans. None of the execution and delivery
of this Agreement, the consummation of the transactions contemplated hereby,
the termination by Assignor of the employment of Assignor's employees before,
simultaneously with or after the Closing nor any other act or omission of
Assignor will result in FGC or any of its affiliates (including Assignee)
incurring, whether pursuant to contract, law or otherwise, any obligation or
liability to or with respect to any employees or former employees of Assignor,
including, without limitation, any obligation or liability for or with respect
to severance pay or benefits, continuation of any health, medical or other
benefits or any other any employee benefit plan (including, without limitation,
any "employee benefit plan" as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974).
10
7.25 Investment Representations of Assignor. Assignor represents
and warrants to Assignee and FGC that:
(a) Assignor understands that the FGC Shares it is acquiring
pursuant to this Agreement have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), nor qualified under any state
securities laws, and that the issuance and delivery of the FGC Shares is
intended to be exempt from such registration and qualification based in part
upon the representations of Assignor contained herein. Assignor recognizes that
an investment in the FGC Shares may involve a number of risks, and that no
federal or state agency has passed upon the FGC Shares or made any finding or
determination as to the fairness of this investment.
(b) Assignor has been furnished copies of FGC's filings with the
Securities and Exchange Commission (the "Commission") referred to in Section
8.5 and such other materials regarding FGC, if any, as it has requested in
writing, and has been given the opportunity to obtain from FGC all information
that it has requested regarding its business and affairs.
(c) Assignor and its officers and advisors have such knowledge
and experience in financial and business matters to be capable of evaluating
the merits and risks of the investment contemplated by this Agreement. Assignor
is able to bear the economic risk of its investment in FGC.
(d) Assignor understands that it must bear the economic risk of
such investment indefinitely unless the FGC Shares are registered pursuant to
the Securities Act or an exemption from such registration is available, and
that FGC has no obligation to so register such shares, except as provided in
the Registration Rights Agreement between Assignor and FGC dated the date
hereof. Assignor further understands that there is no assurance that any
exemption will allow Assignor to dispose of or otherwise transfer any or all of
the FGC Shares in the amounts or at the times Assignor might propose. Except
for the transfer to ▇▇▇▇ contemplated by Section 6.7, Assignor will not sell or
otherwise transfer any of the FGC Shares unless they are registered under the
Securities Act or unless an exemption from such registration is available.
Nothing contained herein shall, however, adversely affect Assignor's right to
sell the FGC Shares pursuant to Rule l44 under the Securities Act, to the
extent such Rule is then available in connection with such sale.
(e) Assignor is acquiring the FGC Shares solely for its own
account as principal for investment and not with a view toward resale, transfer
or distribution thereof or any interest therein, in whole or in part, nor with
any present intention of distributing the FGC Shares, except for the proposed
transfer of 4,800 of the FGC Shares to ▇▇▇▇ in accordance with Section 12
hereof.
(f) Assignor is not relying on Assignee or FGC for any advice or
opinion with respect to the tax and other economic considerations relating to
its investment in the FGC Shares. In regard to such considerations, Assignor
has relied on the advice of, or has consulted with, only the Assignor's own
advisors.
11
(g) Assignor has formed an independent judgment to consummate the
transactions contemplated hereby in exchange for the FGC Shares.
8. Representations and Warranties of Assignee. Assignee hereby
represents and warrants to Assignor as follows:
8.1 Organization, Power and Authority. Each of FGC and Assignee
is a corporation duly organized, validly existing and in good standing under
the laws of the state of its incorporation, and has all requisite corporate
power and authority to carry on its business as it is now being conducted, to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby.
8.2 Due Authorization and Execution: Effect of Agreement. The
execution, delivery and performance by FGC and Assignee of this Agreement and
the consummation by FGC and Assignee of the transactions contemplated hereby
have been duly authorized by all necessary corporate action required to be
taken on the part of FGC and Assignee. Each of this Agreement and the Escrow
Agreement has been duly and validly executed and delivered by FGC and Assignee
and constitutes the valid and binding legal obligation of FGC and Assignee,
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally or the availability of specific
performance, injunctive relief and other equitable remedies and to general
principles of equity (regardless of whether such principles are considered in a
proceeding in equity or at law). The Registration Rights Agreement has been
duly and validly executed and delivered by FGC and constitutes the valid and
binding legal obligation of FGC, enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting the rights of creditors
generally or the availability of specific performance, injunctive relief and
other equitable remedies and to general principles of equity (regardless of
whether such principles are considered in a proceeding in equity or at law).
Assuming the representations and warranties of Assignor made in Section 7.25
and of ▇▇▇▇ made in the letter agreement referred to in Section 6.7 are and
continue to be true and complete, the execution, delivery and performance by
FGC and Assignee of this Agreement and the consummation by FGC and Assignee of
the transactions contemplated hereby will not, with or without the giving of
notice or the lapse of time, or both, (a) violate any provision of any law,
rule or regulation to which FGC or Assignee is subject; (b) violate any order,
judgment or decree applicable to FGC or Assignee; or (c) conflict with or
result in a breach of or a default under any term or condition of FGC's or
Assignee's Certificate of Incorporation or By-Laws or any agreement or other
instrument to which FGC or Assignee is a party or by which it or its assets may
be bound, except in each case, for violations, conflicts, breaches or defaults
which in the aggregate would not materially hinder or impair the consummation
of the transactions contemplated hereby.
8.3 Consents and Approvals. Except for any applicable
requirements of the Securities Act and state securities laws, no consent,
approval, authorization of, exemption by, or filing with any governmental or
regulatory authority or any third party is required in connection with the
execution, delivery and performance of this Agreement by FGC or Assignee,
except any thereof which have been obtained or made or which, if not received
or made, is not reasonably likely to have
12
a material adverse effect on the business, results of operations or financial
condition of FGC and its subsidiaries taken as a whole (a "FGC Material Adverse
Effect").
8.4 Capitalization. The authorized capital stock of FGC consists
of 50,000,000 shares of FGC Common Stock and 2,000,000 shares of Preferred
Stock, of which there were on May 12, 1997, a total of 11,878,617 shares of FGC
Common Stock and no shares of Preferred Stock issued and outstanding. All FGC
Shares issued and delivered to Assignor pursuant to this Agreement have been
duly authorized, validly issued, fully paid, nonassessable and free of
preemptive rights.
8.5 Commission Reports. FGC has made all required filings of
reports and forms with the Commission under the Securities Exchange Act of
1934, as amended (the "Exchange Act") since December 31, 1995. All such reports
and forms (as amended, in the case of any thereof which were amended after
filing) were prepared in all material respects in accordance with the
requirements of the Exchange Act and the rules and regulations thereunder. As
of their respective dates (or as of the date last amended, in the case of any
thereof which were amended after filing), none or such reports or forms
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except to the extent corrected by a subsequently filed
amendment or other report, form or document. The audited consolidated financial
statements and unaudited interim financial statements and schedules of FGC (as
amended, if applicable) contained in such public reports (or incorporated
therein by reference) were prepared in accordance with generally accepted
accounting principles applied on a consistent basis, except as noted therein,
and fairly presented the consolidated financial condition and results of
operations of FGC and its consolidated subsidiaries as at the respective dates
thereof and for the periods indicated therein, subject in the case of interim
unaudited financial statements to normal year-end audit adjustments.
9. Securities Act Legend. Each certificate or other instrument
evidencing any FGC Shares (including any delivered to the Escrow Agent or ▇▇▇▇)
shall bear a legend in substantially the following form:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933 and such shares may not be sold or
transferred unless such sale or transfer will be effected in
accordance with the registration requirements of the Securities Act of
1933, as at that time amended, or in accordance with any exemption
from such registration requirements which may then be available."
Assignor understands and acknowledges that FGC will deliver unlegended
certificates in exchange for any certificate bearing such legend only in the
event that (i) (A) Assignor transfers shares represented by such certificate
pursuant to and in the manner provided for in an effective registration
statement covering the transfer or sale of such shares or (B) Assignor shall
have delivered to FGC an opinion of counsel in form and substance satisfactory
to FGC, to the effect that the FGC Shares in question may be transferred
without registration under the Securities Act and (ii) all applicable
requirements of applicable state securities laws have been satisfied.
13
10. Further Assurances. At any time and from time to time after the
date hereof, either party shall, at the request of the other party, execute and
deliver any further instruments or documents and take all such further action
as the requesting party may reasonably request in order to transfer into the
name of Assignee the Lease and any and all Property contemplated to be sold
pursuant to this Agreement and to further consummate the transactions
contemplated by this Agreement.
11. Brokers. Assignor and Assignee warrant and represent to each other
that they dealt with no broker, finder or similar agent or party who or which
might be entitled to a commission or compensation on account of introducing the
parties, the negotiation or execution of this Agreement and/or the closing of
the transaction provided for herein other than ▇▇▇▇ ▇▇▇▇ ("Broker"). Assignor
hereby respectively agrees to indemnify and hold harmless Assignee from and
against all loss, liability, damage and expense (including, without limitation,
attorneys' fees) imposed upon or incurred by Assignee by reason of any claim
for commissions or other compensation for bringing about this transaction by
any broker, finder or similar agent or party (including Broker). Assignee
hereby respectively agrees to indemnify and hold harmless Assignor from and
against all loss, liability, damage and expense (including, without limitation,
attorneys' fees) imposed upon or incurred by Assignor by reason of any claim
for commissions or other compensation for bringing about this transaction by
any broker, finder or similar agent or party (other than Broker).
12. Costs and Fees. Conveyancing taxes, if any, shall be payable by
Assignor, and in no event be payable by Assignee. The Assignee shall pay the
cost of obtaining the audited financial statements of the Assignor and the
other financial information required by Section 7.21 hereof. The Assignor shall
pay its own legal expenses. Any other similar costs not expressly provided for
elsewhere in this Agreement shall be divided and borne in accordance with the
usual practices in the jurisdiction where the Premises are located. The
provisions of this Article 12 shall survive the Closing.
13. Title Exceptions Covenant. At the Closing, First American Title
Insurance Company, a California corporation (the "Title Company"), is issuing
Assignee an ALTA Leasehold Owners Title Insurance Policy insuring Assignee's
leasehold interest in the Premises (such policy, including all endorsements,
schedules and other attachments being referred to as the "Title Policy").
Assignor covenants to and agrees with Assignee and FGC that in the event any
exceptions appear in the Title Policy (including, without limitation,
pre-printed exceptions) and such exceptions are not fully insured over by the
Title Company (the "Title Exceptions"), Assignor shall (regardless of whether
the Title Exceptions constitute Permitted Exceptions), from and after the
Closing, take such actions as may be reasonably necessary or reasonably
requested by Assignee or FGC to cure, remedy and remove the Title Exceptions as
promptly as reasonably practical and shall otherwise cooperate with Assignee
and FGC in so curing, remedying and removing the Title Exceptions; provided,
that Assignor's out-of-pocket costs need not exceed the total amount of $4,000
unless Assignee or FGC reimburse Assignor for such excess costs. Without
limiting the generality of the foregoing, Assignor shall, at Assignor's expense
(subject to the expense limitation set forth in the immediately preceding
sentence), use its reasonable efforts to make the services of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, Esq., available for such purposes and use its reasonable efforts to
cause the lessor of the Premises to cooperate with Assignor and Assignee in
such efforts.
14
14. Indemnification and Survival.
14.1 Survival of Representations Warranties and Covenants. All
representations, warranties and covenants made in this Agreement shall survive
the Closing and be enforceable for the periods hereinafter set forth for the
making of claims. Any party learning of a misrepresentation or breach of
representation, warranty or covenant under this Agreement shall promptly give
written notice thereof to all other parties to this Agreement; provided,
however, that failure to give such notification shall not affect the
indemnification provided hereunder except to the extent the Indemnifying Party
(as defined in Section 14.4) shall have been actually prejudiced as a result of
such failure.
14.2 Assignor's Indemnification Obligation. Assignor hereby
agrees to indemnify, defend and hold Assignee, it successors, and assigns
harmless from and against the following matters for the period indicated:
14.2.1 So long as written notice of a claim for
indemnification hereunder is delivered by Assignee to Assignor during the
period of three (3) years from the Closing Date, Assignor shall protect,
defend, hold harmless and indemnify each of Assignee and FGC, their respective
officers, directors, shareholders, employees, agents and affiliates, and the
respective successors, assigns, heirs, executors and legal representatives of
each of the foregoing (collectively, the "FGC Indemnified Parties") from,
against and in respect of any and all losses, liabilities, deficiencies,
penalties, fines, costs, damages and expenses whatsoever, contingent or
otherwise (including without limitation, reasonable professional fees and costs
of investigation, litigation, settlement, and judgment and interest) ("Losses")
that may be suffered or incurred by any of them arising from or by reason of
(i) any Retained Liability or other liability or obligation of or claims
against Assignor, whether known or unknown or now existing or hereafter
arising, which is not an Assumed Liability; (ii) the breach of any
representation, warranty, covenant or agreement of Assignor contained in this
Agreement, in any other Transaction Document or in any other writing delivered
pursuant hereto or thereto (determined for this purpose as if all references to
knowledge and materiality contained in Article 7 are deleted); (iii) the
invalidity or unenforceability, or alleged invalidity or unenforceability, of
any provision of any Transaction Document; (iv) any liability or obligation, or
alleged liability or obligation, of Assignor to, or claim by, in any case
whether known or unknown or now existing or hereafter arising any holder or
former holder of capital stock, equity interests or other securities of
Assignor, or any past, existing or future employee of Assignor, including,
without limitation, any liability, obligation, alleged liability or obligation
or claim based upon or arising out of consummation of the transactions
contemplated by this Agreement; (v) any liability or obligation, or alleged
liability or obligation to, or claim by, in any case whether known or unknown
or now existing or hereafter arising, the landlord under the Lease, any past,
existing or future creditor of Assignor or any other third party relating to or
arising out of any event, fact or circumstance occurring or existing at or at
any time before the Closing or the conduct of the business or affairs of
Assignor from and after the Closing, other than Assumed Liabilities; (vi) the
transfer, issuance or delivery to ▇▇▇▇ of any FGC Shares, any breach or
inaccuracy of any representation or warranty, or any failure to perform any
covenant, agreement or obligation of ▇▇▇▇ under the letter agreement referred
to in Section 6.7 hereof; (vii) any action or omission by Assignee which
constitutes a violation of or conflicts with any of the variances or permits
referred to in item 12 or
15
13 of Schedule B to the Title Policy or constitutes a violation, conflict with
or interference with, any of the riparian rights or flow of a natural water
course referred to in item 20 of Schedule B to the Title Policy and (viii) any
and all actions, suits, proceedings, claims, demands, assessments, judgments,
costs and expenses (including without limitation, interest, penalties,
reasonable legal fees and accounting fees) incident to the foregoing and the
enforcement of the provisions of this Section 14.2.1.
14.2.2 Assignor shall defend Assignee's title to the
Personal Property forever.
14.3 Assignee's Indemnification Obligation. Assignee agrees to
defend, indemnify, and hold harmless Assignor from and against the following
matters for the periods indicated:
14.3.1 So long as written notice of a claim for
indemnification hereunder is delivered by Assignor to Assignee during the
period of three (3) years from the Closing Date, Assignee shall indemnify and
defend Assignor with respect to any and all claims, liabilities, and
obligations of every kind and description, contingent or otherwise (including
reasonable attorneys' fees and costs), arising out of or related to
misrepresentation, breach of warranty or covenant, or nonfulfillment of any
agreement on the part of Assignee under this Agreement or any Transaction
Document.
14.3.2 Assignee shall indemnify and defend Assignor forever
against any and all claims, liabilities, and obligations of every kind and
description, contingent or otherwise (including reasonable attorneys' fees and
costs), arising out of or related to the Assumed Liabilities, the use of the
Purchased Assets and operation of the Business by Assignee from and after the
Closing Date, or Assignee's failure to perform obligations of Assignor assumed
by Assignee pursuant to this Agreement as Assumed Liabilities.
14.4 Matters Involving Third Parties. Subject to the periods of
limitation described in Section 14.2 and 14.3:
Whenever any of FGC, Assignee or Assignor (in any case for the
purposes of this Article 14, an "Indemnified Party") shall learn after the
Closing of a claim that, if allowed (whether voluntarily or by judicial or
quasi-judicial tribunal or agency), would give rise to an obligation of another
party (the "Indemnifying Party") to indemnify the Indemnified Party under any
provision of this Agreement, before paying the same or agreeing thereto, the
Indemnified Party shall promptly notify the Indemnifying Party in writing of
all such facts within the Indemnified Party's knowledge with respect to such
claim and the amount thereof (a "Notice of Claim"). If, prior to the expiration
of fifteen (15) days from the mailing of a Notice of Claim, the Indemnifying
Party shall request, in writing, that such claim not be paid, the Indemnified
Party shall not pay the same, provided the Indemnifying Party proceeds
promptly, at its or their own expense (including employment of counsel
reasonably satisfactory to the Indemnified Party), to settle, compromise or
litigate, in good faith, such claim. After notice from the Indemnifying Party
requesting the Indemnified Party not to pay such claim and the Indemnifying
Party's assumption of the defense of such claim at its or their expense, the
Indemnifying Party shall not be liable to the Indemnified Party for any legal
or other expense subsequently incurred by the Indemnified Party in connection
with the defense thereof.
16
However, the Indemnified Party shall have the right to participate at its
expense and with counsel of its choice in such settlement, compromise or
litigation. The Indemnified Party shall not be required to refrain from paying
any claim which has matured by a court judgment or decree, unless an appeal is
duly taken therefrom and execution thereof has been stayed, nor shall the
Indemnified Party be required to refrain from paying any claim where the delay
in paying such claim would result in the foreclosure of a lien upon any of the
property or assets then held by the Indemnified Party. The failure to provide a
timely Notice of Claim as provided in this Section 14.4 shall not excuse the
Indemnifying Party from its or their continuing obligations hereunder; however,
the Indemnified Party's claim shall be reduced by any damages, if any, to the
Indemnifying Party resulting from the Indemnified Party's delay or failure to
provide a Notice of Claim as provided in this Section 14.4.
14.5 For purposes of this Article 14, any assertion of fact
and/or law by a third party that, if true, would constitute a breach of a
representation or warranty made by a party to this Agreement or make
operational an indemnification obligation hereunder, shall, on the date that
such assertion is made, immediately invoke the Indemnifying Party's obligation
to protect, defend, hold harmless and indemnify the Indemnified Party pursuant
to this Article 14.
14.6 The obligation of the Assignor under Article 14 hereof shall
be satisfied first from the Escrowed Property (as defined in the Escrow
Agreement) in accordance with the Escrow Agreement and, if the Escrowed
Property (valued as provided in the Escrow Agreement) is inadequate to provide
full indemnification to Assignee, then from Assignor (or its successors or
assigns) directly.
14.7 Survival; Exclusive Remedy. The rights and obligations under
this Section 14 are expressly intended to survive execution of this Agreement
and the Closing of the transactions contemplated hereby for the periods
specified in Sections 14.1 and 14.2 and shall not be affected by any
investigation made by any party at any time. The rights of indemnification
provided in this Section 14 shall be the exclusive remedy of any party for any
misrepresentation, breach of any representation, warranty, covenant or
agreement contained in this Agreement or for claims arising out of the
operation of the Business before or on or after the Closing Date, provided that
if such rights intended for the benefit of any indemnified party are not, for
any reason, enforceable in accordance with their terms, then such indemnified
party shall have all rights and remedies available by contract, at law, in
equity or otherwise so long as claims are brought within the period of
limitations provided for above. Upon expiration of the applicable periods of
indemnification provided hereunder the liability of the Indemnifying Party
shall cease with respect to any and all claims, losses, damages, liabilities,
costs and expenses arising out of matters which have not been the subject of
written notice to the Indemnifying Party delivered prior to the expiration of
the applicable period of indemnification, but shall survive and continue with
respect to all claims, losses, damages, liabilities, costs and expenses arising
out of matters which have been the subject of any such notice.
15. Bulk Sales. The parties agree to waive the requirements, if
any, of all applicable bulk sales laws. As an inducement to Assignee to enter
into such waiver, Assignor represents and warrants that (a) it will not be
rendered insolvent by the transactions contemplated by this Agreement, and (b)
all debts, obligations and liabilities relating to the Lease and Business that
are
17
not expressly assumed by Assignee under this Agreement will be promptly paid
and discharged by Assignor as and when they become due. Assignor agrees to
indemnify and hold Assignee harmless from, and reimburse Assignee for, any
loss, cost, expense, liability or damage which Assignee may suffer or incur by
virtue of the noncompliance by Assignor or Assignee with any law pertaining to
fraudulent conveyance, bulk sales or any similar law which might make the sale
or transfer of any part of the Property or Lease ineffective as to creditors of
or claimants against Assignor.
16. Notices. All notices, demands, requests, consents or other
communications ("Notices") which either party may desire or be required to give
to the other hereunder shall be in writing and shall be delivered by hand,
overnight express carrier, or sent by registered or certified mail, return
receipt requested, postage prepaid, in either event, addressed to the parties
at their respective addresses first above set forth. A copy of any Notice given
by Assignor to Assignee or FGC shall simultaneously be given in either manner
provided above to Family Golf Centers, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel. A copy of any Notice given by
Assignee to Assignor shall simultaneously be given in either manner provided
above to ▇▇▇▇▇ ▇. ▇▇▇▇, Esq., ▇▇▇▇▇, ▇▇▇▇ & ▇'▇▇▇▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Notices given in the manner aforesaid shall be deemed to have
been given three (3) business days after the day so mailed, the day after
delivery to any overnight express carrier and on the day so delivered by hand.
Either party shall have the right to change its address(es) for the receipt of
Notices by giving Notice to the other party in either manner aforesaid. Any
Notice required or permitted to be given by either party may be given by that
party's attorney.
17. Miscellaneous.
17.1 This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns.
17.2 This Agreement shall be governed by, interpreted under and
construed and enforced in accordance with, the laws of the State of Delaware.
17.3 The captions or article headings in this Agreement are for
convenience only and do not constitute part of this Agreement.
17.4 This Agreement has been fully negotiated by the parties with
the advice of their respective legal counsel and rules of construction
construing ambiguities against the party responsible for drafting agreements
shall not apply.
17.5 This Agreement (including any Exhibits and Schedules annexed
hereto) contains the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior understandings, if any, with
respect thereto.
17.6 This Agreement may not be modified, changed, supplemented or
terminated, nor may any obligations hereunder be waived, except by written
instrument signed by the party to be charged or by its agent duly authorized in
writing or as otherwise expressly permitted herein.
18
17.7 No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof or of any other agreement or provision herein contained. No extension
of the time for performance of any obligations or acts shall be deemed an
extension of the time for performance of any other obligations or acts.
17.8 This Agreement may be executed in one or more counterparts,
each of which when so executed and delivered shall be deemed an original, but
all of which taken together shall constitute but one and the same original.
17.9 Either party may cause this Agreement to be recorded in the
appropriate public office.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
▇▇▇▇▇▇ GOLF ENTERPRISES, INC.
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇ FAMILY GOLF CENTERS, INC.
By:
-------------------------------------
Name:
Title:
FAMILY GOLF CENTERS, INC.
By:
-------------------------------------
Name:
Title:
20
INDEX OF EXHIBITS & SCHEDULES
-----------------------------
EXHIBIT A LEGAL DESCRIPTION OF PREMISES
EXHIBIT B LEASE
EXHIBIT C PERSONAL PROPERTY
EXHIBIT D CONTRACTS
EXHIBIT E PERMITTED EXCEPTIONS
EXHIBIT F ▇▇▇▇ LETTER AGREEMENT
SCHEDULE 3.3 EXCLUDED ASSETS
SCHEDULE 6.2 CERTAIN EXPENSES
SCHEDULE 7.15 ACCESS TO PREMISES
1