PURCHASE AGREEMENT
AND
ESCROW INSTRUCTIONS
between
LASALLE NATIONAL BANK,
A NATIONAL BANKING ASSOCIATION,
AS TRUSTEE UNDER THAT CERTAIN TRUST INDENTURE
DATED AS OF FEBRUARY 20, 1990,
as Seller,
and
TEMPE FAMILY GOLF CENTERS, INC.,
A DELAWARE CORPORATION,
as Buyer
March ___, 1997
TABLE OF CONTENTS
1. DEFINITIONS.........................................................1
2. AGREEMENT TO PURCHASE AND SALE......................................3
2.1. THE PROPERTY...............................................3
2.2. EXCLUDED PROPERTY..........................................5
3. PURCHASE PRICE AND RIGHT TO TERMINATE...............................5
3.1. AMOUNT AND PAYMENT.........................................5
3.2. ▇▇▇▇▇▇▇ MONEY DEPOSIT......................................5
3.3. RIGHT TO TERMINATE.........................................6
3.4. PROMISSORY NOTE............................................6
4. TITLE REPORT, ESCROW AND ESCROW INSTRUCTIONS........................6
4.1. TITLE REPORT...............................................6
4.2. ESCROW INSTRUCTIONS........................................7
4.3. INDEMNITY OF ESCROW AGENT..................................7
4.4. EFFECT OF FORM ESCROW INSTRUCTIONS.........................7
5. LIQUOR LICENSE......................................................8
5.1. LIQUOR LICENSE.............................................8
5.2. PURPORTED LIEN ON LIQUOR LICENSE...........................8
6. COMPLETION OF SALE..................................................8
6.1. PLACE AND DATE.............................................8
6.2. MANAGEMENT AGREEMENT.......................................9
7. TITLE TO PROPERTY...................................................9
7.1. GOLF COURSE LEASE AND REAL PROPERTY........................9
7.2. PERSONAL PROPERTY..........................................9
7.3. CONTRACTS AND PERMITS......................................9
7.4. WATER RIGHTS AND LIQUOR LICENSE............................9
8. REPRESENTATIONS AND WARRANTIES.....................................10
8.1. SELLER....................................................10
8.2. BUYER.....................................................12
9. COVENANTS..........................................................12
9.1. SELLER....................................................12
9.2. BUYER.....................................................14
10. CONDITIONS PRECEDENT...............................................15
10.1. SELLER....................................................15
10.2. BUYER.....................................................15
11. CLOSING............................................................16
11.1. PROCEDURE.................................................16
11.2. POSSESSION................................................17
11.3. CLOSING COSTS.............................................18
11.4. PRORATIONS................................................18
11.5. ADJUSTMENTS...............................................18
12. ASSIGNMENT.........................................................18
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13. CASUALTY DAMAGE, EMINENT DOMAIN AND RISK OF LOSS...................18
14. GENERAL............................................................19
14.1. TIME OF ESSENCE; FORCE MAJEURE............................19
14.2. NOTICES...................................................19
14.3. GOVERNING LAW.............................................20
14.4. SURVIVAL..................................................20
14.5. CONSTRUCTION..............................................20
14.6. TERMS GENERALLY...........................................20
14.7. FURTHER ASSURANCES........................................20
14.8. PARTIAL INVALIDITY; SEVERABILITY..........................20
14.9. WAIVERS...................................................20
14.10. THIRD PARTY BENEFICIARIES.................................21
14.11. MISCELLANEOUS.............................................21
EXHIBIT "A" - The Land (Paragraph 2.1.2)
EXHIBIT "B" - The Personal Property (Paragraph 2.1.3)
EXHIBIT "C" Assignment of Golf Course Lease and Landlord
Consent and Estoppel (Paragraph 7.1)
EXHIBIT "D" - Permitted Title Exceptions (Paragraph 7.1)
EXHIBIT "E" - ▇▇▇▇ of Sale for Personal Property (Paragraph 7.2)
EXHIBIT "F" - Assignment of Contracts and Permits (Paragraph
7.3)
EXHIBIT "G" Management Agreement (Paragraph 6.2)
ii
PURCHASE AGREEMENT
AND
ESCROW INSTRUCTIONS
THIS AGREEMENT, is made as of March ___, 1997, by and between LASALLE
NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, AS TRUSTEE UNDER THAT CERTAIN
TRUST INDENTURE DATED AS OF FEBRUARY 20, 1990 ("SELLER"), and TEMPE FAMILY
GOLF CENTERS, INC., A DELAWARE CORPORATION ("BUYER").
W I T N E S S E T H:
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which is hereby acknowledged, and in consideration of the covenants set forth
in this Agreement, Seller and Buyer agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have the
meanings indicated:
1.1. "Close of Escrow" or "Closing" means the consummation of the
purchase of the Property by Buyer from Seller in accordance
with this Agreement.
1.2. "Closing Date" means the date specified in PARAGRAPH 6.1
herein on which the Closing is to occur.
1.3. "Contracts and Permits" means those instruments described in
PARAGRAPH 2.1.4 herein.
1.4. "Due Diligence Period" shall mean the period beginning upon
Opening of Escrow and ending upon the earlier of (i) the
conclusion of the fourteenth (14th) day after Opening of
Escrow or (ii) Buyer's delivery of written notice to Seller,
with a copy to Escrow Agent, of Buyer's waiver of its right
to terminate this agreement as set forth in PARAGRAPH 3.3.
1.5. "Effective Date" shall mean March 1, 1997.
1.6. "Environmental Laws" shall mean all federal, state and local
laws, ordinances, rules and regulations now or hereafter in
force, as amended from time to time, in any way relating to
or regulating human health or safety, or industrial hygiene
or environmental conditions, or protection of the
environment, or pollution or contamination of the air, soil,
surface water or groundwater, and includes the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. ss. 9601, et seq., the Resource Conservation
and Recovery Act, 42 U.S.C. ss. 6901, et seq., and the Clean
Water Act, 33 U.S.C. ss. 1251, et seq.
1.7. "Escrow Agent" and "Title Insurer" shall be First American
Title Insurance Company, a California corporation ("Escrow
Agent"), whose address and phone numbers are ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇;
▇▇▇-▇▇▇-▇▇▇▇ (direct); ▇▇▇-▇▇▇-▇▇▇▇.
1.8. "Golf Course Lease" means those certain instruments
described in PARAGRAPH 2.1.1 herein.
1.9. "Government Authority" means any and all courts, boards,
agencies, commissions, offices, or authorities of any
government ▇▇▇▇ (▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ or otherwise).
1.10. "Hazardous Substances" shall mean any substance or material
that is described as a toxic or hazardous substance, waste
or material or a pollutant or contaminant, or words of
similar import, in any of the Environmental Laws, and
includes asbestos, petroleum (including crude oil or any
fraction thereof, natural gas, natural gas liquids,
liquefied natural gas, or synthetic gas usable for fuel, or
any mixture thereof), petroleum products, polychlorinated
biphenyls, urea formaldehyde, radon gas, radioactive matter,
medical waste, and chemicals which may cause cancer or
reproductive toxicity.
1.11. "Land" means the real property described in PARAGRAPH 2.1.2
herein.
1.12. "Liquor License" means that certain license described in
PARAGRAPH 2.1.5 herein.
1.13. "Liquor License Transfer" means those acts described in
PARAGRAPH 5.1 herein.
1.14. "Opening of Escrow" means the date on which Buyer and Seller
have each executed and delivered two (2) counterpart copies
of this Agreement to Escrow Agent, and such date shall be
inserted by Escrow Agent on the last page hereof.
1.15. "Permitted Exceptions" means those title exceptions
described in PARAGRAPH 7.1 herein.
1.16. "Property" means the property described in PARAGRAPH 2.1
herein.
1.17. "Real Property" means all buildings, structures,
improvements, machinery, fixtures and equipment affixed or
attached to, or located at, the Land and all easements and
rights appurtenant to such Land, as described in PARAGRAPH
2.1.2 herein.
1.18. "Recorder's Office" means the official records of the
Recorder's Office in Maricopa County, Arizona.
1.19. "Release" shall mean any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing into the
environment, including continuing migration, of Hazardous
Substances into or through soil, surface water or
groundwater.
1.20. "Tempe" means The City of Tempe, an Arizona municipal
corporation.
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1.21. "Title Company" means Escrow Agent.
1.22. "Title Report" means a preliminary title report on the
leasehold estate described in the Golf Course Lease,
together with legible copies of all title exceptions
referenced therein, prepared by Title Company and delivered
to Buyer within ten (10) days after the Opening of Escrow.
Other defined terms shall have the meanings assigned to them in this
Agreement.
2. AGREEMENT TO PURCHASE AND SALE.
2.1. The Property. Seller agrees to sell to Buyer and Buyer
agrees to purchase from Seller, "as is and where is,"
without recourse, warranty or representation other than as
set forth in this agreement, under the terms set forth in
this Agreement, all of the following property (collectively
the "Property"):
2.1.1. All right, title and interest of Seller in the
leasehold estate and related rights created by
the following instruments (collectively, the
"Golf Course Lease"):
2.1.1.1. That certain Agreement/Lease for
the Construction, Development,
Maintenance and Operation of a
Public Golf Course in The Indian
Bend Wash, dated February 11,
1988, executed by Tempe and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, a single man
("▇▇▇▇▇▇"), as disclosed by, and
attached as an exhibit to, that
certain Memorandum of
Agreement/Lease for Construction,
Development, Construction
Easement, and Operating Lease,
dated February 8, 1990 and
recorded February 21, 1990 in
Instrument Number 90-077856 in the
Recorder's Office;
2.1.1.2. The Assignment and Consent dated
January 31, 1990 and recorded
February 21, 1990 in Instrument
Number 90-077855 in the Recorder's
Office, executed by and among
▇▇▇▇▇▇, Indian Bend Limited
Partnership (:Indian Bend"),
LaSalle, and Tempe, whereby ▇▇▇▇▇▇
assigned any and all of his right,
title and interest in, to and
under the Golf Course Lease to
Indian Bend and Indian Bend
accepted such assignment, which
assignment was consented to by
Tempe;
2.1.1.3. That certain Certificate of
Correction to Memorandum of
Agreement/Lease for Construction,
Development, Construction
Easement, and Operating Lease
recorded February 15, 1991 in
Instrument Number 91-065532 in the
Recorder's Office;
3
2.1.1.4. That certain Memorandum of
Commencement of Lease Under
Agreement/Lease dated February 12,
1991 and recorded February 20,
1991 in Instrument Number
91-068666;
2.1.1.5. That certain Assignment of Golf
Course Lease dated February 4,
1997 and recorded February 5, 1997
in Instrument Number 97-0077091 in
the Recorder's Office, executed by
and among LaSalle and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, as chapter 11 trustee of
Indian Bend Limited Partnership,
Debtor in Case No. 96-12273
PHX-RTB in the United States
Bankruptcy Court for the District
of Arizona, whereby said trustee
assigned any and all of his right,
title and interest in, to and
under the Golf Course Lease to
LaSalle and LaSalle accepted such
assignment;
2.1.2. All of Seller's right, title and interest in and
to all buildings, structures, improvements,
machinery, fixtures and equipment affixed or
attached to, or located at the real property
comprising the leasehold estate of the Golf
Course Lease, as more particularly described on
EXHIBIT "A" attached hereto (the "Land"), and
all easements and rights appurtenant to such
Land, including, but not limited to, all
applicable water rights (all such Land,
buildings, structures, improvements, machinery,
fixtures, equipment, easements and rights are
collectively the "Real Property");
2.1.3. All of Seller's tangible and intangible personal
property, which is located at or used in
connection with the Real Property, as more
particularly described on EXHIBIT "B" attached
hereto (the "Personal Property");
2.1.4. All of Seller's interest in all (i) contracts,
leases, lease amendments, lease guaranties, work
letter agreements, improvement agreements,
warranties and guaranties arising out of,
affecting, relating or appurtenant to the Golf
Course Lease, the Personal Property and/or the
Real Property, and (ii) all building permits,
certificates of occupancy, and other
certificates, permits, licenses and approvals
arising out of, affecting, relating or
appurtenant to the Golf Course Lease and/or the
Real Property (collectively, the "Contracts and
Permits"); and
2.1.5. All of Seller's right, title and interest in
that certain Liquor License number 07070792
issued by the Arizona Department of Liquor
Licenses and Control to the agent for Seller, as
owner of such Liquor License (the "Liquor
License").
4
2.2. Excluded Property. The Property does not include any of Seller's
right, title or interest in any of the following property:
2.2.1. Personal property of Seller that is not located on or at or
used in connection with the Real Property;
2.2.2. Cash, cash equivalents, bank deposits and negotiable
instruments of Seller, including income of the Real Property
received by Seller prior to the Effective Date; and
2.2.3. Claims of Seller arising prior to the Effective Date against
any third parties to recover money or property, including
but not limited to, the right to collect notes payable to
and accounts receivable of Seller and any claims of Seller
against any former owner of the Property, or against any
insider or affiliate thereof. Buyer acknowledges that Seller
is currently pursuing one or more of such claims.
3. PURCHASE PRICE AND RIGHT TO TERMINATE.
3.1. Amount and Payment. The total purchase price for the
Property shall be ONE MILLION SEVEN HUNDRED FIFTY THOUSAND
AND 00/100 DOLLARS ($1,750,000.00), subject to adjustment as
provided in PARAGRAPHS 11.4 AND 11.5. At the Closing on the
Closing Date, Buyer shall pay the total purchase price for
the Property to Seller in cash in immediately available
funds.
3.2. ▇▇▇▇▇▇▇ Money Deposit. Upon Opening of Escrow, Buyer shall
make an ▇▇▇▇▇▇▇ Money Deposit in the amount of $250,000.00
("▇▇▇▇▇▇▇ Money Deposit"), to be credited against the
required purchase price, as set forth above, at Close of
Escrow. The ▇▇▇▇▇▇▇ Money Deposit shall be non-refundable to
Buyer unless (i) within fourteen (14) days after Opening of
Escrow, Buyer gives notice of the termination of this
Agreement, provided Buyer has not prior thereto waived this
right to terminate, (ii) if the assignment of the Golf
Course Lease is not approved by all Government Authority,
from which such approval is required under the terms of such
lease, before June 30, 1997, provided the failure to obtain
such approval is not materially due to any action or
inaction of Buyer, or (iii) Seller defaults under this
Agreement. Upon the occurrence of any of the events
described in the preceding sentence, Escrow Agent shall
immediately pay the ▇▇▇▇▇▇▇ Money Deposit to Buyer, together
with accrued interest, and this Agreement shall be canceled.
Escrow Agent shall immediately pay the ▇▇▇▇▇▇▇ Money Deposit
to Seller, and this Agreement shall be canceled (i) upon any
Default by Buyer under this agreement, or (ii) if the
assignment of the Golf Course Lease is not approved by all
Government Authority, from which such approval is required
under the terms of such lease, before June 30, 1997 due to
any action or inaction of Buyer. Escrow Agent shall
immediately pay the ▇▇▇▇▇▇▇ Money Deposit to Seller, without
cancellation of this Agreement, upon expiration of the Due
Diligence Period.
5
3.3. Right to Terminate. Buyer shall have the right to terminate
this Agreement by notice to Seller through the fourteenth
(14th) day after Opening of Escrow. Buyer may at any time
waive this right to terminate by written notice to Seller,
with a copy to Escrow Agent. Buyer shall take all action and
furnish all documents and information reasonably necessary
to obtain approval before June 30, 1997 of the assignment of
the Golf Course Lease by all Government Authority from which
such approval is required under the terms of such lease.
Buyer shall not, prior to obtaining such approval, request
modification of the Golf Course Lease. The application for
approval and all costs associated therewith are the sole
responsibility of Buyer; provided, however, that Seller
shall execute documents and take such further action
reasonably required by the applicable Government Authority
to obtain approval. Seller shall be entitled to terminate
this Agreement by notice to Buyer if Buyer unreasonably
delays in taking any action or in furnishing any documents
or information reasonably necessary to obtain Government
Authority approval of the assignment of the Golf Course
Lease. Buyer shall, before termination for this reason only,
be entitled to written notice and a reasonable opportunity
(not to exceed ten (10) days) to cure.
3.4. Promissory Note. On or before expiration of the Due
Diligence Period and upon payment of the ▇▇▇▇▇▇▇ Money
Deposit to Seller under conditions not requiring the
cancellation of this Agreement, as provided in PARAGRAPH
3.2, Seller shall execute and deliver to Buyer a Promissory
Note in the principal amount of $250,000.00 ("Promissory
Note"), providing for interest thereon at the rate of seven
percent (7%) per annum from the date of expiration of the
Due Diligence Period until paid. The Promissory Note is
intended to document Seller's obligation to refund the
▇▇▇▇▇▇▇ Money Deposit under the conditions described in
PARAGRAPH 3.2 and shall be due July 1, 1997; provided,
however, the Promissory Note shall be surrendered by Buyer,
with no payment due thereon, if Escrow closes as provided in
this Agreement.
4. TITLE REPORT, ESCROW AND ESCROW INSTRUCTIONS.
4.1. Title Report. Within ten (10) days from the Opening of
Escrow, Seller shall, at Seller's expense, procure the Title
Report, together with legible copies of all recorded
documents referenced therein, by which the Title Company
shall agree to issue to Buyer, upon Close of Escrow, an
American Land Title Association Standard Owner's Policy Form
B-1970 (Amended 10/17/70) of title insurance with respect to
the Golf Course Lease and Real Property, with liability in
the amount of the purchase price, insuring that Buyer's
leasehold interest in the Golf Course Lease and Real
Property is vested in Buyer subject only to the Permitted
Exceptions. Buyer may, in Buyer's sole and absolute
discretion, elect to receive an extended owner's ALTA title
insurance policy in lieu of the standard owner's policy
referenced above. In such event, Buyer shall be responsible
to provide the survey and pay the incremental premium
incident to such upgraded policy.
6
4.2. Escrow Instructions. This Agreement shall also constitute
escrow instructions. Seller and Buyer will deliver to Escrow
Agent all documents and do or cause to be done all other
things necessary, in the reasonable judgment of Escrow
Agent, to enable it to comply in good faith with its
obligations under this Agreement. Escrow Agent shall perform
its duties faithfully, timely and in good faith according to
the provisions set forth in this Agreement and at law
relative to duties and obligations imposed on escrow agents.
In the event any conflicting demand is made upon Escrow
Agent concerning this Agreement, Seller and Buyer authorize
Escrow Agent, at its election, to implead any money and
documents deposited with Escrow Agent with a court of
competent jurisdiction to determine the rights of Seller and
Buyer. Escrow Agent's deposit of documents and funds with
such court, after deducting its fee (if not previously
collected by Escrow Agent), shall relieve Escrow Agent of
all liability and responsibility with respect to the funds
deposited with such court and Escrow Agent's acts occurring
after the date of such deposit, but shall not relieve Escrow
Agent of any liability or responsibility incurred prior to
such date of deposit with the court.
4.3. Indemnity of Escrow Agent. Seller and Buyer shall indemnify,
defend and hold harmless Escrow Agent and Escrow Agent's
shareholders, directors, officers, employees, agents,
attorneys, successors and assigns, against all claims,
causes of action, demands, liabilities, losses, damages,
costs and expenses, including reasonable attorneys' fees and
disbursements, which Escrow Agent may incur or sustain in
connection with this Agreement or any court action arising
therefrom and shall pay the same upon demand; provided,
however, that such indemnity shall not extend to any costs,
damages, attorneys' fees, expenses or liabilities incurred
by Escrow Agent as a result of (i) Escrow Agent's breach or
default in the performance of any covenant, agreement or
obligation to be performed by Escrow Agent set forth in this
Agreement or (ii) Escrow Agent's negligence. The foregoing
indemnity shall survive any termination of this Agreement,
the Closing and the recording of the documents necessary to
consummate this transaction.
4.4. Effect of Form Escrow Instructions. If Escrow Agent requires
the execution of its standard form printed escrow
instructions, Buyer and Seller agree to execute same;
however, such instructions shall be construed as applying
only to Escrow Agent's engagement, and if there are
conflicts between the terms of this Agreement and the terms
of the printed escrow instructions, the terms of this
Agreement shall control. The parties expressly agree that
the "13-day cancellation" clause or any clause providing for
a period of time after breach before the Escrow can be
terminated shall be stricken from the printed form escrow
instructions, and that upon a breach of this Agreement, the
Escrow may be terminated and this Agreement terminated
immediately by the non-breaching party as more particularly
set forth herein.
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5. LIQUOR LICENSE
5.1. Liquor License. Buyer acknowledges Buyer must apply for all
approvals required by all applicable Government Authority to
permit the transfer of control of the Liquor License to
Buyer after the Closing Date, including but not limited to a
person to person transfer application, an
Applicant/Controlling Person Affidavit and/or a change of
agent application and all related documents (the "Liquor
License Transfer"), in accordance with the provisions of
A.R.S. ss. 4-201, et seq. Seller and Buyer agree the
purchase of the Property in accordance with the provisions
of this Agreement shall be final as of the Closing Date,
regardless of any action taken or not taken by any
applicable Government Authority in regard to the Liquor
License. Application for approval by all Applicable
Government Authority and all costs associated therewith are
the sole responsibility of Buyer; provided, however, that
Seller shall execute all documents required by the
applicable Government Authority, whether before or after
Closing, and shall deliver the original Liquor License (or
Interim Permit if Seller has not yet received the original
Liquor License) to Buyer at Closing. Notwithstanding
anything to the contrary herein, Seller makes no
representation or warranty as to the likelihood of approval
or rejection of Buyer, or of the transfer of the Liquor
License, by any applicable Government Authority.
5.2. Purported Lien on Liquor License. Buyer acknowledges that
there is on file with the Arizona Department of Liquor
Licenses and Control a Statement of Legal or Equitable
Interest ("Statement") filed September 19, 1990 against the
Liquor License, pursuant to which Louis and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ claimed a lien on or interest in the Liquor
License. Seller and Buyer agree the purchase of the Property
in accordance with the provisions of this Agreement shall be
subject to any right, title or interest under the Statement
and shall be final as of the Closing Date, regardless of any
action taken in regard to the Liquor License.
Notwithstanding anything to the contrary herein, Seller
makes no representation or warranty as to the validity of
any right, title or interest under the Statement or the
likelihood of any prior claim against the Liquor License.
6. COMPLETION OF SALE.
6.1. Place and Date. The purchase and sale of the Property shall
be completed in accordance with PARAGRAPH 11 herein (the
"Closing"). The Closing shall occur through an escrow opened
with the Title Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, on the earlier of (i)
the first day the Recorder's Office is open for business
that is two (2) or more days after the assignment of the
Golf Course Lease is approved by all Government Authority
from which such approval is required under the terms of such
Lease, or (ii) JUNE 30, 1997 (the "Closing Date"), or at
such other place or on such other date as Seller and Buyer
agree in writing. Prior to the Closing Date, Seller and
Buyer each shall give appropriate written instructions,
consistent with this
8
Agreement, to the Title Company for the Closing in
accordance with this Agreement.
6.2. Management Agreement. On or before expiration of the Due
Diligence Period and upon payment of the ▇▇▇▇▇▇▇ Money
Deposit to Seller under conditions not requiring the
cancellation of this Agreement, as provided in PARAGRAPH
3.2, Buyer and Seller shall execute and deliver a Management
Agreement ("Management Agreement") in the form attached as
EXHIBIT "G." The Management Agreement shall be terminated
immediately at the option of Buyer or Seller upon any
cancellation of this Agreement.
7. TITLE TO PROPERTY.
7.1. Golf Course Lease and Real Property. Seller shall assign all
of Seller's right, title and interest in the Golf Course
Lease and the Real Property by a duly executed and
acknowledged Assignment in the form of EXHIBIT "B" attached
hereto, free and clear of all liens, claims, encumbrances,
leases, easements, restrictions, rights, covenants and
conditions of any kind or nature whatsoever, except only the
following exceptions (the "Permitted Exceptions"): (a) the
matters described on EXHIBIT "C" attached hereto, and (b)
such other matters as may be approved by Buyer, in Buyer's
sole and absolute discretion, in writing on or before the
Closing. Such assignment shall be "as is, where is" without
warranties or representations of any kind except as provided
herein. On or before the Closing, Tempe shall consent to
such Assignment.
7.2. Personal Property. Seller shall transfer title to Seller's
Personal Property to Buyer, by a duly executed ▇▇▇▇ of Sale
("▇▇▇▇ of Sale") in the form of EXHIBIT "D" attached hereto,
free and clear of all liens, claims, encumbrances, security
interests and adverse claims of any kind or nature
whatsoever. Such transfer shall be "as is, where is" without
any warranties or representations of any kind except as
provided herein.
7.3. Contracts and Permits. Seller shall assign to Buyer title to
Seller's interests in those Contracts, if any, which Buyer
has elected to assume before Close of Escrow, and the
Permits by duly executed Assignment of Contracts and Permits
(the "Assignment of Contracts and Permits") in the form of
EXHIBIT "E" attached hereto, free and clear of all liens,
encumbrances, security interests and adverse claims of any
kind or nature whatsoever. Such assignment shall be "as is,
where is" without any warranties or representations of any
kind except as provided herein.
7.4. Water Rights and Liquor License. Seller shall take all
actions and sign all documents necessary to transfer all
Water Rights arising out of, affecting, relating or
appurtenant to the Property ("Water Rights") and the Liquor
License to Buyer on or before the Closing, to the extent
possible, and after the Closing if
9
necessary. Such transfer shall be "as is, where is" without
warranties or representations of any kind except as provided
herein.
8. REPRESENTATIONS AND WARRANTIES.
8.1. Seller. The representations and warranties of Seller in this
PARAGRAPH 8.1 are a material inducement for Buyer to enter
into this Agreement. Buyer would not purchase the Property
from Seller without such representations and warranties of
Seller. Such representations and warranties shall survive
any termination of this Agreement, the Closing and the
recording of the documents necessary to consummate this
transaction. Seller represents and warrants to Buyer as of
the date of this Agreement as follows, and further
represents that all of the following representations and
warranties shall also be true as of the Closing:
8.1.1. The execution, delivery and performance of this
Agreement by Seller have been duly and validly
authorized by all necessary action on the part
of Seller. The person executing this Agreement
on behalf of Seller is duly authorized to do so
and thereby bind Seller hereto.
8.1.2. The Golf Course Lease is in full force and
effect. The Golf Course Lease has not been
amended or modified. Seller has not assigned,
transferred, pledged or encumbered in any manner
the Golf Course Lease or any interest
thereunder.
8.1.3. The Golf Course Lease, the Real Property, the
Personal Property, the Contracts and Permits,
the Water Rights and Liquor License are, except
as otherwise provided in this agreement, free
and clear of all liens, claims, encumbrances,
security interests and adverse claims of any
kind or nature whatsoever.
8.1.4. The execution, delivery and performance of this
Agreement does not and will not, violate,
conflict with or contravene any provision of the
Trust Indenture of Seller or any judgment,
order, decree, writ or injunction, or any law,
rule or regulation to which Seller is subject,
nor result in any breach of, or constitute a
default under, or require separate consent
pursuant to any loan or credit agreement, lease,
indenture, mortgage, deed of trust, purchase
agreement, guarantee, contract or other
instrument to which Seller is a party or by
which Seller or any of Seller's assets are
bound. This Agreement, and all documents
executed or delivered in connection with the
transactions contemplated hereby, each
constitute legal, valid and binding obligations
of Seller, enforceable in accordance with their
respective terms.
8.1.5. To the best of Seller's knowledge, there are no
federal, state, county, municipal or other
governmental plans to change the highway or road
10
system in the vicinity of the Property which
could materially restrict or change access from
any such highway or road to the Property or any
pending or threatened condemnation or eminent
domain proceedings relating to or affecting the
Property. All roads bounding the Property are
public roads and the Assignment of Golf Course
Lease and Landlord Consent and Estoppel is the
only instrument necessary to convey to Buyer
full access to and the right to use such roads
freely, subject to the provisions of Arizona law
relating to roads and highways, as well as to
convey all rights appurtenant to the Property in
such roads.
8.1.6. To the best of Seller's knowledge, other than in
the ordinary course of operation of the
Property, no release of Hazardous Substances has
occurred in, on or under the Real Property (or
any nearby real property which could migrate to
the Real Property) and no violation of any
Environmental Laws has occurred at the Real
Property, from the date of Seller's acquisition
of the Property through the date of this
Agreement.
8.1.7. Seller has not received notice of any threatened
or pending suits, legal actions or other
proceedings by any governmental authority or
otherwise which allege any violation by Seller
of any applicable laws, rules or regulations of
any federal, state or local governmental
authority pertaining to the Property or Seller's
use and operation thereof or which could result
in a lien on or lis pendens affecting the
Property, nor is Seller, to its knowledge, in
violation of any applicable laws, rules or
regulations with respect to the Property. Seller
is involved in the following proceedings, which
are directly or indirectly related to Seller's
interest in the Property:
8.1.7.1. That certain Chapter 11 bankruptcy case
involving Indian Bend Limited Partnership, a
Colorado limited partnership ("Indian Bend"), as
debtor, pending in the United States Bankruptcy
Court for the District of Arizona (Case No.
96-12273-PHX-RTB);
8.1.7.2. That certain receivership action involving
Seller, as plaintiff, and Indian Bend, as
defendant, pending in the Superior Court of the
State of Arizona, County of Maricopa (Case No.
CV 96-18687); and
8.1.7.3. That certain action for judgment on a guaranty
agreement involving Seller, as
Plaintiff/Counter-defendant, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
as Defendant/Counter-claimant, pending in the
District Court, County of Arapahoe, State of
Colorado (Case No. 96-CV-2770, Division 5).
11
8.1.8. Seller is not a "foreign person" as defined in
Section 1445 of the Internal Revenue Code of
1986, as amended, and the Income Tax Regulations
thereunder.
8.1.9. Seller has not dealt with any investment
adviser, real estate broker or finder, or
incurred any liability for any commission or fee
to any investment adviser, real estate broker or
finder, in connection with the sale of the
Property to Buyer or this Agreement.
8.2. Buyer. The representations and warranties of Buyer in this
PARAGRAPH 8.2 are a material inducement for Seller to enter
into this Agreement. Seller would not sell the Property to
Buyer without such representations and warranties of Buyer.
Such representations and warranties shall survive any
termination of this Agreement, the Closing and the recording
of the documents necessary to consummate this transaction.
Buyer represents and warrants to Seller as of the date of
this Agreement as follows and further represents that the
following representations and warranties shall also be true
as of the Closing:
8.2.1. Buyer is a corporation, duly created and validly
existing under the laws of the State of
Delaware, and has the full corporate power and
authority to execute and deliver this Agreement
and to perform all covenants and agreements of
Buyer hereunder. The person executing this
Agreement on behalf of Buyer is duly authorized
to do so and thereby bind Buyer hereto.
8.2.2. Buyer has the financial capability to perform
its obligations hereunder, both before and after
Close of Escrow, including but not limited to
the ability to tender the ▇▇▇▇▇▇▇ Money Deposit
and to pay when due the full amount of the
purchase price for the Property.
8.2.3. Buyer has not dealt with any investment adviser,
real estate broker or finder, or incurred any
liability for any commission or fee to any
investment adviser, real estate broker or
finder, in connection with the sale of the
Property to Buyer or this Agreement.
9. COVENANTS.
9.1. Seller. Seller covenants and agrees with Buyer as follows:
9.1.1. Between the date of this Agreement and the
Closing Date, Seller shall not execute any
contracts or agreements, any additional lease or
sublease affecting the Golf Course Lease or the
Real Property or amend, modify, renew, extend or
terminate any of the Golf Course Lease or the
Contracts or Permits (other than the renewal of
month-to-month Contracts or Permits) in any
respect without the prior written
12
approval of Buyer, which approval may be
withheld in Buyer's sole and absolute
discretion. Between the date of this Agreement
and the Closing Date, Seller shall immediately
give Buyer copies of all notices received by
Seller asserting any breach or default under the
Golf Course Lease or the Contracts or any
violation of the Permits or any covenants,
conditions, restrictions, laws, statutes, rules,
regulations or ordinances applicable to the Golf
Course Lease, the Real Property or the Personal
Property. Between the date of this Agreement and
the Closing Date, Seller shall keep in force the
existing property insurance.
9.1.2. Immediately after Seller receives notice that
any Hazardous Substances may be present or any
Release or threatened Release of Hazardous
Substances may have occurred in, on or under the
Real Property (or any nearby real property which
could migrate to the Real Property) or that any
violation of any Environmental Laws may have
occurred at the Real Property, Seller shall give
written notice thereof to Buyer with a
reasonably detailed description of the event,
occurrence or condition in question. Seller
shall immediately furnish to Buyer copies of all
written communications received by Seller from
any person (including notices, complaints,
claims or citations that any Release or
threatened Release of any Hazardous Substances
or any violation of any Environmental Laws has
actually or allegedly occurred) or given by
Seller to any person concerning any past or
present Release or threatened Release of any
Hazardous Substances in, on or under the Real
Property (or any nearby real property which
could migrate to the Real Property) or any past
or present violation of any Environmental Laws
at the Real Property. Seller makes no
representation or warranty, and except as
expressly provided in this PARAGRAPH 9.1.2,
incurs no covenant or obligation to Buyer
regarding any hazardous substances that may be
present or any release or threatened release of
hazardous substances that may have occurred in,
on or under the Real Property (or any nearby
real property that could migrate to the Real
Property) or any violation of any Environmental
Laws that may have occurred at the Real
Property.
9.1.3. Seller shall indemnify and defend Buyer against
and hold Buyer harmless from all claims,
demands, liabilities, losses, damages, costs and
expenses, including reasonable attorneys' fees
and disbursements, arising from or based on any
failure by Seller to perform all obligations of
Seller in accordance with this Agreement, the
Golf Course Lease and the Contracts or the
Permits before the Closing Date, or any breach,
default or violation by Seller (or any event by
Seller or condition which, after notice or the
passage of time, or both, would constitute a
breach, default or violation by Seller) under
this Agreement, the Golf Course Lease, the
Contracts or the Permits
13
that occurs before the Closing Date, or arising
out of Seller's acquisition of the Golf Course
Lease and the Property from an entity that had
defaulted on its obligations and had filed a
Chapter 11 petition in Bankruptcy Court.
9.1.4. Except as otherwise provided herein, between the
date of this Agreement and the Closing Date,
Seller shall not in any manner sell, convey,
assign, transfer, subdivide, partition, encumber
or otherwise dispose of the Real Property, the
Golf Course Lease, the Contracts, the Permits,
the Bonds under the Trust Indenture to which
Seller is a party, or any part thereof or
interest therein, and Seller may sell, convey,
assign, transfer or otherwise dispose of the
Personal Property only in the ordinary course of
business.
9.1.5. Seller shall indemnify, pay and hold harmless
Buyer, and its respective shareholders,
directors, officers, employees, agents,
attorneys, successors and assigns, against all
claims, demands, liabilities, losses, damages,
costs and expenses, including reasonable
attorneys' fees and disbursements, which any of
them may incur or sustain as a result of any
action or claim or cause of action or proceeding
instituted by any agent, broker or finder,
licensed or otherwise, claiming through, under
or by reason of the conduct of Seller in
connection with this Agreement.
9.2. Buyer. Buyer covenants and agrees with Seller as follows:
9.2.1. Buyer shall indemnify and defend Seller against
and hold Seller harmless from all claims,
demands, liabilities, losses, damages, costs and
expenses, including reasonable attorneys' fees
and disbursements, arising from or based on any
failure by Buyer to perform all obligations of
Buyer in accordance with the Golf Course Lease,
or the Contracts arising or accruing on or after
the Closing Date and during Buyer's ownership of
the Property or any breach, default or violation
by Buyer (or any event by Buyer or condition
which, after notice or the passage of time, or
both, would constitute a breach, default or
violation by Buyer) under the Golf Course Lease
or the Contracts that occurs on or after the
Closing Date and during Buyer's ownership of the
Property.
9.2.2. Buyer shall indemnify, pay and hold harmless
Seller, and its respective beneficiaries,
directors, officers, employees, agents,
attorneys, successors and assigns, against all
claims, demands, liabilities, losses, damages,
costs and expenses, including reasonable
attorneys' fees and disbursements, which any of
them may incur or sustain as a result of any
action or claim or cause of action or proceeding
instituted by any agent, broker or finder,
licensed or otherwise, claiming through,
14
under or by reason of the conduct of Buyer in
connection with this Agreement.
10. CONDITIONS PRECEDENT.
10.1. Seller. The obligations of Seller under this Agreement are
subject to satisfaction of all of the conditions set forth
in this PARAGRAPH 10.1. Seller may waive any or all of such
conditions in whole or in part but any such waiver shall be
effective only if made in writing. Unless otherwise agreed
in writing, after the Closing, any such condition that has
not been satisfied shall be treated as having been waived in
writing. No such waiver shall constitute a waiver by Seller
of any of its rights or remedies if Buyer defaults in the
performance of any covenant or agreement to be performed by
Buyer under this Agreement or if Buyer breaches any
representation or warranty made by Buyer herein. If any
condition set forth in this PARAGRAPH 10.1 is not fully
satisfied or waived in writing by Seller, this Agreement
shall terminate, but without releasing Buyer from liability
if Buyer defaults in the performance of any such covenant or
agreement to be performed by Buyer or if Buyer breaches any
such representation or warranty made by Buyer before such
termination.
10.1.1. On or before the Closing Date, this Agreement
and the transaction contemplated herein shall
have been approved by all Government Authority
from which such approval is required under the
terms of the Golf Course Lease.
10.1.2. On the Closing Date, Buyer shall not be in
default in the performance of any covenant or
agreement to be performed by Buyer under this
Agreement.
10.1.3. On the Closing Date, no judicial or
administrative suit, action, investigation,
inquiry or other proceeding by any person shall
have been instituted against Buyer or Seller,
which challenges the validity or legality of any
of the transactions contemplated by this
Agreement.
10.1.4. On the Closing Date, all representations and
warranties made by Buyer herein shall be true
and correct as if made on and as of the Closing
Date.
10.2. Buyer. The obligations of Buyer under this Agreement are
subject to satisfaction of all of the conditions set forth
in this PARAGRAPH 10.2. Buyer may waive any or all of such
conditions in whole or in part but any such waiver shall be
effective only if made in writing. After the Closing, any
such condition that has not been satisfied shall be treated
as having been waived in writing. No such waiver shall
constitute a waiver by Buyer of any of its rights or
remedies if Seller defaults in the performance of any
covenant or agreement to be performed by Seller or if Seller
breaches any representation or warranty made by Seller
herein. If any
15
condition set forth in this PARAGRAPH 10.2 is not fully
satisfied or waived in writing by Buyer, this Agreement
shall terminate, but without releasing Seller from
liability if Seller defaults in the performance of any such
covenant or agreement to be performed by Seller or if Seller
breaches any such representation or warranty made by Seller
before such termination.
10.2.1. On or before the Closing Date, this Agreement
and the transaction contemplated herein shall
have been approved by all Government Authority
from which such approval is required under the
terms of the Golf Course Lease, including but
not limited to the City of Tempe and the Flood
Control District of Maricopa County Arizona.
10.2.2. On the Closing Date, Seller shall not be in
default in the performance of any covenant or
agreement to be performed by Seller under this
Agreement.
10.2.3. On the Closing Date, no judicial or
administrative suit, action, investigation,
inquiry or other proceeding by any person shall
have been instituted against Buyer or Seller,
which challenges the validity or legality of any
of the transactions contemplated by this
Agreement.
10.2.4. On the Closing Date, all representations and
warranties made by Seller herein shall be true
and correct as if made on and as of the Closing
Date.
10.2.5. On the Closing Date, the Title Company shall be
unconditionally and irrevocably committed to
issue to Buyer an American Land Title
Association Standard Owner's Policy Form B-1970
(Amended 10/17/70) of title insurance with
respect to the Golf Course Lease and Real
Property, with liability in the amount of the
purchase price, insuring that Buyer's leasehold
interest in the Golf Course Lease and Real
Property Parcel is vested in Buyer with no
bankruptcy exception and subject only to the
applicable Permitted Exceptions.
11. CLOSING.
11.1. Procedure. Seller and Buyer shall cause the following to
occur at the Closing on the Closing Date:
11.1.1. The Assignment of Golf Course Lease and Landlord
Consent and Estoppel, duly executed and
acknowledged by Seller, and consented to by
Tempe, shall be recorded in the Recorder's
Office.
11.1.2. Seller shall on or before the Closing Date,
execute and deliver to Buyer (i) a ▇▇▇▇ of Sale
for Personal Property, (ii) the Assignment of
Contracts and Permits, (iii) a Certificate of
Non-Foreign Status in
16
accordance with Section 1445 of the Internal
Revenue Code of 1986, as amended, and the Income
Tax Regulations thereunder in the form and
substance satisfactory to Buyer, (iv) all such
documents as are necessary to complete the
Liquor License Transfer as contemplated in
PARAGRAPHS 5.1 and 7.4 herein, and (v) such
other documents as may be reasonably required by
the Title Company or by this Agreement to
effectuate the intent of this Agreement. Seller
shall on or before the Closing Date deliver to
Buyer the original Liquor License or Interim
Permit.
11.1.3. Buyer shall on or before the Closing Date,
execute and deliver to Seller, (i) the
Assignment of Golf Course Lease and Landlord
Consent and Estoppel, (ii) the Assignment of
Contracts and Permits, and (iii) such other
documents as may be reasonably required by the
Title Company or by this Agreement to effectuate
the intent of this Agreement.
11.1.4. Buyer shall on or before the Closing Date
deliver to Seller the original Promissory Note
marked "Canceled."
11.1.5. Buyer shall pay to Seller the total purchase
price for the Property in accordance with this
Agreement.
11.1.6. The Title Company shall be unconditionally
committed to issue to Buyer the title insurance
policy described herein, and shall promptly
after Close of Escrow issue such title insurance
policy to Buyer.
11.1.7. The Title Company shall file any information
return for the sale of the Property required by
Section 6045 of the Internal Revenue Code of
1986, as amended, and the Income Tax Regulations
thereunder. Escrow Agent shall indemnify,
defend, pay and hold harmless Buyer, Seller and
their respective managers, shareholders,
directors, officers, employees, agents, brokers,
attorneys, successors and assigns, from and
against any claims, demands, liabilities,
losses, damages, penalties, costs and expenses,
including reasonable attorneys' fees and
disbursements, resulting from Escrow Agent's
failure to file the reports, if any, Escrow
Agent is required to file pursuant to this
paragraph.
11.2. Possession. Seller shall transfer possession of the Real
Property and the Personal Property to Buyer on the Closing
Date. If not previously delivered to Buyer, Seller shall
deliver originals of the documents described in PARAGRAPH 7,
all files, correspondence, maintenance records and operating
manuals relating to the Real Property, and all keys
(properly tagged or identified) to the Real Property to
Buyer on the Closing Date. The originals of such documents
and such keys shall become the property of Buyer on the
Closing Date.
17
11.3. Closing Costs. All fees, charges or expenses incidental to
the sale, transfer and assignment of the Property to Buyer
shall be paid according to the customs of real estate
transactions in Maricopa County, Arizona.
11.4. Prorations. All rents payable by Seller under the Golf
Course Lease, taxes, assessments, utilities, maintenance
charges and similar expenses of the Property, to be
determined using the accrual method of accounting, shall be
prorated between Seller and Buyer as of the Effective Date
and, to the extent of information then available, such
prorations shall be made at the Closing. Seller and Buyer
shall use their best efforts prior to the Closing Date to
prepare a schedule of prorations covering as many items to
be prorated as practicable so such prorations can be made at
the Closing. Such prorations shall be adjusted, if
necessary, and completed after the Closing as soon as final
information becomes available. Seller and Buyer agree to
cooperate and to use their best efforts to complete such
prorations no later than thirty (30) days after the Closing
Date, except for any annual reconciliation of expense
reimbursements payable by the tenant under the Golf Course
Lease, which cannot be completed until the final accounting
for the year has been prepared. Monthly income and expense
items shall be prorated on the basis of a thirty (30) day
month. Such income and expenses of the Property for the
period before the Effective Date shall be for the account of
Seller and such income and expenses for the period on and
after the Effective Date shall be for the account of Buyer.
Seller shall pay all taxes, assessments, invoices for goods
furnished or services supplied, and other expenses relating
to the Property that are allocable to the period before the
Effective Date. The net adjustment of all prorations
pursuant to this PARAGRAPH 11.4 shall be paid by the party
owing the same to the other in cash or by certified or
official bank check or wire transfer at the Closing. The
expenses and liabilities for which Seller shall be liable
pursuant to this PARAGRAPH 11.4 shall be a retained
liability of Seller and the expenses and liabilities of the
Buyer shall be an assumed liability of the Buyer.
11.5. Adjustments. The total purchase price for the Property shall
be adjusted upward in the amount of the net operating income
of the Property (exclusive of income taxes, depreciation and
other similar non-operating expenses) from the Effective
Date through the Closing Date.
12. ASSIGNMENT. Buyer may not assign its rights under this Agreement
without Seller's prior written consent.
13. CASUALTY DAMAGE, EMINENT DOMAIN AND RISK OF LOSS. If on or before the
Closing Date, the improvements on the Real Property or any part
thereof are damaged by any casualty, or if proceedings are commenced
for the taking by exercise of the power of eminent domain of all or
any portion of the Property, which, as reasonably determined by
Buyer, would render such Property unacceptable to Buyer or unsuitable
for Buyer's intended use, Buyer shall have the right, by giving
notice to Seller before the
18
Closing, to terminate this Agreement, in which event this Agreement
shall terminate and the Promissory Note.
14. GENERAL.
14.1. Time of Essence; Force Majeure. Time is of the essence in
the performance of each and every obligation under this
Agreement; provided, however, time for performance of such
obligations by the parties shall be extended and such
parties shall not be deemed to be in default when delays are
due to an act of God, fire, earthquake, flood, explosion,
action of the elements, invasions, insurrection, riot, mob
violence, strikes, lockouts, condemnation, acts of other
parties, or any other cause, whether similar or dissimilar
to the foregoing, not within the reasonable control of the
party seeking the protection of this provision or any other
cause expressly set forth in this document. A lack of funds
or inability to obtain funds shall not be included in the
definition of force majeure events. An extension of time
pursuant to this provision shall only be for the period of
the force majeure event, which period shall commence to run
from time of commencement of the cause and shall continue
until the event causing the force majeure event has been
completely cured or resolved sufficiently to enable full
performance to be resumed without interference.
14.2. Notices. All notices and other communications under this
Agreement shall be properly given only if made in writing
and either mailed by certified mail, return receipt
requested, postage prepaid, or delivered by hand (including
messenger or recognized delivery, courier or air express
service) to the party at the address set forth in this
PARAGRAPH 14.2 or such other address as such party may
designate by notice to the other party. Such notices and
other communications shall be effective on the date of
receipt (evidenced by the certified mail receipt) if mailed
or on the date of hand delivery if hand delivered. If any
such notice or communication is not received or cannot be
delivered due to a change in the address of the receiving
party of which notice was not previously given to the
sending party or due to a refusal to accept by the receiving
party, such notice or other communication shall be effective
on the date delivery is attempted. Any notice or other
communication under this Agreement may be given on behalf of
a party by the attorney for such party.
14.2.1. The address of Seller is: LaSalle National Bank,
Trust Department, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention, ▇▇▇▇▇
▇. ▇▇▇▇, Group Vice President, with a copy to:
Mohr, Hackett, Pederson, Blakley, ▇▇▇▇▇▇▇▇ &
▇▇▇▇, P.C., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇. Falls, Esq.
14.2.2. The address of Buyer is: Tempe Family Golf
Centers, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, with a copy to: Family
19
Golf Centers, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: General Counsel.
14.3. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Arizona.
14.4. Survival. This Agreement shall constitute the continuing
obligations between the parties and, except as otherwise set
forth herein, shall be binding insofar as applicable beyond
the Closing referred to herein and transfer of ownership of
the Property.
14.5. Construction. Seller and Buyer acknowledge that each party
and its counsel have reviewed and revised this Agreement and
that the rule of construction to the effect that any
ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this
Agreement or any document executed and delivered by either
party in connection with the transactions contemplated by
this Agreement. The captions and headings in this Agreement
are for convenience of reference only and shall not be used
to interpret this Agreement.
14.6. Terms Generally. The defined terms in this Agreement shall
apply equally to both the singular and the plural forms of
the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine
and neuter forms. The term "person" includes individuals,
corporations, partnerships, trusts, other legal entities,
organizations and associations, and any government or
governmental agency or authority. The words "include,"
"includes" and "including" shall be deemed to be followed by
the phrase "without limitation."
14.7. Further Assurances. From and after the date of this
Agreement, Seller and Buyer agree to do such things, perform
such acts, and make, execute, acknowledge and deliver such
documents as may be reasonably necessary or proper and usual
to complete the transactions contemplated by this Agreement
and to carry out the purpose of this Agreement in accordance
with this Agreement.
14.8. Partial Invalidity; Severability. If any provision of this
Agreement is determined by a proper court to be invalid,
illegal or unenforceable, such invalidity, illegality or
unenforceability shall not affect the other provisions of
this Agreement and this Agreement shall remain in full force
and effect without such invalid, illegal or unenforceable
provision.
14.9. Waivers. No waiver of any provision of this Agreement or any
breach of this Agreement shall be effective unless such
waiver is in writing and signed by the waiving party and any
such waiver shall not be deemed a waiver of any other
20
provision of this Agreement or any other or subsequent
breach of this Agreement.
14.10. Third Party Beneficiaries. There are no third party
beneficiaries to this Agreement. None of the provisions of
this Agreement shall inure to the benefit of any person
other than the signatory parties hereto and their respective
successors and assigns, or be deemed to create any rights,
benefits or privileges in favor of any person except the
signatory parties hereto and their respective successors and
assigns.
14.11. Miscellaneous. The Exhibits attached to this Agreement are
made a part of this Agreement. This Agreement shall benefit
and bind Seller and Buyer and their respective personal
representatives, heirs, successors and assigns. This
Agreement may be executed in counterparts, each of which
shall be an original, but all of which shall constitute one
and the same Agreement. This Agreement may not be amended or
modified except by a written instrument signed by Seller and
Buyer. This Agreement constitutes the entire and integrated
agreement between Seller and Buyer relating to the purchase
and sale of the Property and supersedes all prior
agreements, understandings, offers and negotiations, oral or
written, with respect to the purchase and sale of the
Property.
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IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the
date first hereinabove written.
SELLER:
LASALLE NATIONAL BANK, a national banking association,
as trustee under that certain Trust Indenture dated as
of February 20, 1990
By ___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇
Its Group Vice President
BUYER:
TEMPE FAMILY GOLF CENTERS, INC., A DELAWARE
CORPORATION,
By ___________________________________
Its _____________________________
ESCROW AGENT ACCEPTANCE
The foregoing PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS are accepted by
Escrow Agent, and Escrow is opened as of March ___, 1997. The Escrow Number is
__________________________.
FIRST AMERICAN TITLE INSURANCE COMPANY, a California
corporation
By ___________________________________
Its _____________________________
Authorized Agent
22