PURCHASE AGREEMENT
by and between
KKL GOLF PARTNERSHIP
Seller,
and
CAROLINA SPRINGS FAMILY GOLF CENTERS, INC.,
Purchaser
PREMISES:
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▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
PURCHASE AGREEMENT
PURCHASE AGREEMENT, made as of the 30th day of September,
1996 (this "Agreement"), by and between KKL GOLF PARTNERSHIP,
INC., an Illinois general partnership having an address at c/o
Kemper Sports Management, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller"), and CAROLINA SPRINGS FAMILY
GOLF CENTERS, INC., a Delaware corporation having an address at
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("Purchaser").
W I T N E S S E T H :
WHEREAS, Seller is the owner of certain real property
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ and more particularly described on Exhibit A attached
hereto and made a part hereof (the "Land") and the buildings and
improvements located on the Land (the "Improvements" and, together
with the Land, the "Premises");
WHEREAS, Seller operates a golf course and related
facilities at the Premises under the name "Carolina Springs Golf
and Country Club" (the "Business"); and
WHEREAS, Seller wants to sell the Premises to Purchaser, and
Purchaser wants to purchase the Premises from Seller, on the
terms, and subject to the conditions, set forth herein.
NOW, THEREFORE, in consideration of TEN ($10.00) DOLLARS,
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:
1. Agreement to Sell and Purchase.
1.1 Property to be Purchased by Purchaser. Seller
agrees to sell and convey to Purchaser, and Purchaser agrees to
purchase and acquire from Seller, upon the terms and conditions
hereinafter set forth, all of Seller's right, title and interest
in and to the following property (collectively, the "Property"):
1.1.1 the Premises;
1.1.2 the easements, rights of way,
appurtenances and other rights and benefits of Seller in and to
the Premises, including without limitation, all of Seller's
interest in any air rights, water rights and irrigation rights;
1.1.3 all furnishings, fixtures,
machinery, equipment, vehicles and personalty attached or
appurtenant to or used in connection with the Premises that are
owned by Seller, and all inventories, supplies, sales, marketing
and instructional materials of every kind and description relating
to the Business, wherever located, including without limitation,
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the items described on Exhibit B attached hereto and made a part
hereof (the "Personal Property");
1.1.4 the files, books, notices and
other correspondence from any governmental agencies, and other
records used or employed by Seller or its affiliates in connection
with the ownership and/or operation of the Premises and the
Business other than internal partnership records and tax returns
(collectively, the "Records");
1.1.5 any consents, authorizations,
variances, waivers, licenses, certificates, permits and approvals
held by or granted to Seller in connection with the ownership of
the Premises to the extent assignable to the Purchaser
(collectively, the "Permits");
1.1.6 the contracts, leases and other
agreements of or relating to the Business described on Exhibit C
attached hereto and made a part hereof, except to the extent the
same relate solely to any Retained Assets or Retained Liabilities
(as hereinafter defined) (the "Contracts");
1.1.7 all accounts receivable of Seller
arising out of the sale of goods or services rendered at the
Premises or otherwise in connection with the Business on or after
August 1, 1996 (the "Effective Date");
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1.1.8 any manufacturers' and vendors'
warranties and guarantees, except to the extent the same relate
solely to any Retained Assets or Retained Liabilities (the
"Claims"); and
1.1.9 any other properties and assets
of every kind and nature, real or personal, tangible or
intangible, relating in any way whatsoever to the Premises or the
Business, except to the extent the same relate solely to the
Retained Assets or Retained Liabilities.
1.2 Assets to be Retained by Seller. Anything herein
to the contrary notwithstanding, Seller shall not sell, and
Purchaser shall not acquire, the following assets of Seller (the
"Retained Assets"):
1.2.1 all trade accounts receivable
arising out of the sale of goods or services prior to the
Effective Date;
1.2.2 any rights of Seller with respect
to insurance policies owned by Seller or for which Seller is the
named insured;
1.2.3 all cash, funds in bank accounts
and cash equivalents existing as of the Closing Date hereof; and
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1.2.4 any patents, trademarks,
trademark registrations, copyrights, copyright registrations,
trade names and all registrations thereof and all applications for
any of the foregoing, whether issued or pending, if any, and all
goodwill associated with any of the foregoing (the "Intangible
Assets").
1.3 Assumption of Certain Liabilities. Purchaser
shall assume and agree to pay and discharge when due all
liabilities and obligations of Seller under the Contracts to the
extent the same arise from and after the Effective Date (the
"Assumed Liabilities"). Purchaser shall cause Parent (as
hereinafter defined) to guaranty payment of the Assumed Liability
represented by the Open-End Commercial Master Lease Agreement
between Seller as Lessee and FELCO Commercial Services Division of
Franklin Equity Leasing Company as Lessor.
1.4 Liabilities to be Retained by Purchaser. Seller
shall retain, and Purchaser 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 Property, Seller or the Business or any
predecessor owner of the Property or the Business other than the
Assumed Liabilities (collectively, the "Retained Liabilities").
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2. Consideration.
2.1 In consideration for the Property, Purchaser
shall: (A) pay to Seller Three Million Three Hundred and Twenty
Five Thousand Dollars ($3,325,000.00), subject to adjustment as
hereinafter provided, payable on the date hereof in cash, or by
certified or bank check or by the wire transfer of funds; (B) pay
the sum of Twenty Five Thousand Dollars ($25,000.00) subject to
adjustment as hereinafter provided, payable in cash, certified or
bank check or wire transfer simultaneously herewith to be held and
dealt with as provided in the Escrow Agreement dated the date
hereof among Seller, Purchaser and Continental Stock Transfer &
Trust Company (the "Escrow Agent") (the "Escrow Agreement") and
(C) cause Family Golf Centers, Inc. (the "Parent") to grant to the
Seller an irrevocable option (the "Option") to purchase 5,000
shares of common stock, par value $.01 per share, of Parent (the
"Common Stock") at an exercise price of $40.00 per share, pursuant
to the Stock Option Agreement; dated as of even date herewith.
2.2 It is agreed that [__________] of the
consideration paid by Purchaser hereunder shall be allocated
toward items of personal property or any property other than the
Premises conveyed hereunder and all tax returns and reports filed
by Purchaser and Seller with respect to the transactions
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contemplated by this Agreement shall be consistent with such
allocation.
3. Title; Permitted Exceptions.
3.1 Seller will convey the Property to Purchaser, 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 D attached hereto and made
a part hereof (the "Permitted Exceptions").
4. Apportionments.
4.1 The parties hereto agree that (i) all operating
expenses of Seller relating to the Premises (i.e., real estate
taxes, utilities, cost of advertising, collections, fees, hired
services, insurance, miscellaneous expenses, postage, repairs and
maintenance, taxes and wages, but specifically not including
interest on indebtedness, professional fees and expenses, travel,
lodging, or depreciation), and (ii) all income of Seller, shall be
apportioned between Seller and Purchaser as of the Effective Date
based on the portion of each such expense or revenue attributable
to the period falling on or before the Effective Date on the one
hand, which Seller shall bear the responsibility and benefit of,
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and the portion of each such expense or revenue attributable to
the period falling after the Effective Date, on the other hand,
which Purchaser shall bear the responsibility and benefit of (the
"Adjustment"). The net Adjustment will be paid 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
Seller shall be liable pursuant to this Section shall be included
within the meaning of the term "Retained Liabilities". The Seller
and Purchaser shall make appropriate adjustments for unearned
membership fees, gift certificates and pre-booked events.
4.2 Immediately prior to the Closing, Seller and
Purchaser shall make a determination of the value of all inventory
included in the Property based on the cost thereof. Purchaser
shall pay to Seller at the Closing the amount so determined.
4.3 To the extent that any of the prorations made
pursuant to this Article are based upon estimates of payments to
be made and/or expenses to be incurred by Purchaser subsequent to
the Effective Date, or either party discovers any errors in or
omissions in respect of the Adjustment, Seller and Purchaser agree
to adjust such prorations promptly upon receipt by Seller or
Purchaser, as the case may be, of such payments or of bills or
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other documentation setting forth the actual amount of such
expenses.
4.4 Seller and Purchaser shall maintain and make
available to each other any books or records necessary for the
adjustment of any item pursuant to this Article. The provisions
of this Article shall survive the closing of the transactions
described herein (the "Closing").
5. The Closing.
5.1 The Closing of the transaction provided for in
this Agreement 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").
5.2 At the Closing, Seller shall deliver or cause to
be delivered to Purchaser physical possession of the Property
(receipt of which may be actual or constructive) and the
following:
5.2.1 a special warranty deed with
covenants against grantor's acts, duly executed and acknowledged
by Seller, in proper statutory form for recording, so as to convey
to Purchaser fee simple title to the Premises, subject to and in
accordance with the provisions of this Agreement (the "Deed");
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5.2.2 a ▇▇▇▇ of sale conveying,
transferring and selling to Purchaser all right, title and
interest of Seller in and to all of the Personal Property, which
▇▇▇▇ of sale shall contain a warranty that such property is free
and clear of all Encumbrances other than the Permitted Exceptions,
duly executed and acknowledged by Seller;
5.2.3 an assignment and assumption
agreement (the "Assignment and Assumption Agreement") assigning to
Purchaser all of Seller's right, title and interest in and to the
Contracts, the Permits and the Claims, duly executed and
acknowledged by Seller;
5.2.4 a settlement statement (the
"Settlement Statement") setting forth the amounts paid by or on
behalf of and/or credited to each of Purchaser and Seller pursuant
to this Agreement;
5.2.5 an owner's affidavit of title;
5.2.6 original counterparts of each of
the Contracts to the extent originals are available otherwise a
copy of such Contract certified by the Seller;
5.2.7 any transfer tax or other return
required by any applicable governmental authority in connection
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with the sale of the Property, duly executed and acknowledged by
Seller;
5.2.8 an affidavit (the "FIRPTA
Affidavit") duly executed and acknowledged by Seller pursuant to
Section 1445 (b)(2) of the Internal Revenue Code of 1986, as
amended, stating that Seller is not a foreign person within the
meaning of such provision;
5.2.9 keys to all locks relating to the
Property, appropriately labeled;
5.2.10 all other instruments and
documents to be executed, acknowledged where appropriate and/or
delivered by Seller to Purchaser pursuant to any of the other
provisions of this Agreement; and
5.2.11 such other documents as may be
reasonably required by Purchaser's counsel in connection with this
transaction.
5.3 At the Closing, Purchaser shall deliver or cause
to be delivered to Seller the following:
5.3.1 the cash consideration referred
to in Section 2 and Section 4.2 hereof;
5.3.2 the Stock Option Agreement
referred to in Section 2 hereof;
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5.3.3 the Assignment and Assumption
Agreement, duly executed and acknowledged by Purchaser;
5.3.4 the Settlement Statement, duly
executed and acknowledged by Purchaser;
5.3.5 all other instruments and
documents to be executed, acknowledged where appropriate and/or
delivered by Purchaser to Seller; and
5.3.6 such other documents as may be
reasonably required by Seller's counsel in connection with this
transaction.
6. Representations and Warranties.
6.1 Seller represents and warrants to Purchaser as
follows:
6.1.1 Organization; Power and
Authority. Seller is a partnership duly formed, validly existing
and in good standing under the laws of the State of Illinois, 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.
6.1.2 Due Authorization and Execution;
Effect of Agreement. The execution, delivery and performance by
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Seller of this Agreement and the consummation by Seller of the
transactions contemplated hereby have been duly authorized by all
necessary partnership action required to be taken on the part of
Seller. This Agreement has been duly and validly executed and
delivered by Seller and constitutes the valid and binding
obligation of Seller, enforceable in accordance with its terms,
except to the extent that such enforceability (a) may be limited
by bankruptcy, insolvency, or other similar laws relating to
creditors' rights generally; and (b) is subject to general
principles of equity.
6.1.3 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 Seller of this Agreement, except for consents,
approvals, authorizations, exemptions and filings, if any, which
have been obtained.
6.1.4 Compliance with Applicable Laws.
To the best of Seller's knowledge and except as disclosed in the
Inspection Report of the Bureau of Environmental Health, Division
of Food Protection, South Carolina DHEC dated September 19, 1996,
Seller is not engaging in any activity or omitting to take any
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action as a result of which Seller 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 Property or the
Business, and neither the execution and delivery by Seller of this
Agreement or of any of the other agreements and instruments to be
executed and delivered by it pursuant hereto, the performance by
Seller of its obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby
will result in any such violation. To the best of Seller's
knowledge, Seller is in compliance with all material requirements
imposed in writing by any insurance carrier of Seller to the
extent such carrier is an insurer or indemnitor of the Property.
The Seller has not received any notice of violation of law,
municipal ordinance, orders or requirements issued by any building
department or other governmental agency or subdivision having
jurisdiction.
6.1.5 Permits. All of the Permits
possessed by the Seller in the conduct of the Business are set
forth on Exhibit D. To the best of Seller's knowledge there are
no other permits required by any federal, state, or local law,
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rule or regulation and necessary for the operation of the Property
and the Business as currently being conducted.
6.1.5.1 Title to Assets.
Seller has good and marketable title to the Property free and
clear of all Encumbrances other than the Permitted Exceptions.
6.1.6 Contracts. Except as set forth
on Exhibit C, Seller is not a party to any leases, contracts,
orders or agreements relating to the Property or the Business
(written or otherwise). Exhibit C sets forth a full and complete
description of the Contracts described therein, and none of such
Contracts have been amended or modified except as reflected on
said Exhibit. Seller is not holding any security deposits under
any of said Contracts. Each of the Contracts are in full force
and effect and no party under any such Contract, including Seller,
is in default in respect of any such Contract. The Seller has not
sent or received notice of default in any respect of any such
Contract.
6.1.7 Condition of the Improvements.
To the best of Seller's knowledge there are no material structural
or mechanical defects in the Improvements, and there are no leaks
in any roof on any Improvement.
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6.1.8 Condition of Personal Property.
To the best of Seller's knowledge, except as described on Exhibit
B as "Disabled Equipment" 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 Property as currently conducted.
6.1.9 Environmental Matters.
6.1.9.1 As used in this
Agreement "Hazardous Material" shall mean: (i) any "hazardous
substance" as now defined pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 U.S.C. ss. 9601(33); (ii) any "pollutant or
contaminant" as defined in 42 U.S.C. ss. 9601(33); (iii) any
material now defined as "hazardous waste" pursuant to 40 C.F.R.
Part 261; (iv) any petroleum, including crude oil and any fraction
thereof; (v) natural or synthetic gas usable for fuel; (vi) any
"hazardous chemical" as defined pursuant to 29 C.F.R. Part 1910;
(vii) any asbestos, asbestos containing material, polychlorinated
biphenyl ("PCB"), or isomer of dioxin, or any material or thing
containing or composed of such substance or substances; and (viii)
any other pollutant, contaminant, chemical, or industrial or
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hazardous, toxic or dangerous waste, substance or material,
defined or regulated as such in (or for purposes of any
Environmental Law (as hereinafter defined) and any other toxic,
reactive or flammable chemicals.
6.1.9.2 The Seller has not
conducted the Business or operated the Premises in violation of
any Environmental Law.
6.1.9.3 To the best of
Seller's knowledge, Seller has no obligation or liability imposed
or based upon any provision under any foreign, federal, state or
local law, rule, or regulation or common law, or under any code,
order, decree, judgment or injunction applicable to Seller or the
Property or any notice, or request for information issued,
promulgated, approved or entered thereunder, or under the common
law, or any tort, nuisance or absolute liability theory, relating
to public health or safety, worker health or safety, or pollution,
damage to or protection to the environment, including without
limitation, laws relating to emissions, discharges, releases or
threatened releases of Hazardous Material into the environment
(including without limitation, ambient air, surface water,
groundwater, land surface or subsurface), or otherwise relating to
the manufacture, processing, distribution, use, treatment,
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storage, generation, disposal, transport or handling of
pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes (hereinafter collectively referred
to as "Environmental Laws").
6.1.9.4 Seller has not been
subject to any civil, criminal or administrative action, suit,
claim, hearing, notice of violation, investigation, inquiry or
proceeding for failure to comply with, or received notice of any
violation or potential liability under the Environmental Laws in
respect of the Premises.
6.1.9.5 At the time the
Premises were purchased by the Seller, the Premises were not (a)
listed or proposed for listing on the National Priority List or
(b) listed on the Comprehensive Environmental Response,
Compensation, Liability Information System List ("CERCLIS")
promulgated pursuant to CERCLA, 42 U.S.C. ss. 9601(9), or any
comparable list maintained by any foreign, state or local
government authority and the Seller has not received any notice
thereafter of any such listing.
6.1.9.6 There are no
underground storage tanks at the Premises and Seller further
warrants and represents that to the best of its knowledge any
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prior use and operation of underground storage tanks has been in
compliance with all Environmental Laws.
6.1.9.7 All of Seller's
warranties and representations concerning environmental matters
are qualified by (i) Seller's disclosure to Purchaser of an oil
line spill affecting property described in that certain Right of
Way and/or Easement Agreement and Grant of Option to Purchase by
Carolina Springs Golf & Country Club, Inc., to Seller dated June
8, 1992 and recorded June 8, 1992 in Book 1476, page 724 and (ii)
everything disclosed in that certain Phase I Environmental Site
Assessment for Carolina Springs Golf & Country Club, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, dated June 8,
1991 and prepared by Environmental Technology Engineering, Inc.
6.1.10 Tax Proceedings. There are no
proceedings pending regarding the reduction of real estate taxes
or assessments in respect of the Premises.
6.1.11 Utilities. All water, storm and
sanitary sewer, gas, electricity, telephone and other utilities
adequately service the Premises to allow the conduct of business
as currently conducted, and the Premises are furnished by
facilities of public utilities and the cost of installation of
such utilities has been fully paid.
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6.1.12 Access. To the best of Seller'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.
6.1.13 Insurance Requirements. All
requirements or recommendations by any insurer or by any board of
fire underwriters or similar body in respect of the Property have
been satisfied.
6.1.14 Litigation. There is no action
or proceeding (zoning or otherwise) or governmental investigation
pending, or, to the best of Seller's knowledge, threatened
against, or relating to, Seller (insofar as it relates to the
Premises or the Business), the Premises, the Business or the
transactions contemplated by this Agreement, nor to the best of
Seller's knowledge, is there any reasonable basis for any such
action, proceeding or investigation.
6.1.15 Assessments. There are no
special or other assessments for public improvements or otherwise
now affecting the Premises nor does Seller know of (a) any pending
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or threatened special assessments affecting the Premises or (b)
any contemplated improvements affecting the Premises that may
result in special assessments affecting the Premises.
6.1.16 Employee Agreements. There are
no union or employment contracts or agreements (written or oral)
involving employees of Seller or its affiliates affecting the
Property or the Business which will survive the Closing. All
employees of Seller will have been terminated as of the date
hereof.
6.1.17 Work at the Premises. To the
best of Seller's knowledge no services, material or work have been
supplied to the Premises for which payment has not been made in
full.
6.1.18 Financial Condition. Seller has
delivered to Purchaser true and correct copies of audited
financial statements consisting of balance sheets and income
statements of Seller as of December 31, 1994 and December 31, 1995
and internal reports for the months ended January 31, 1996,
February 29, 1996, March 31, 1996, April 30, 1996, May 31, 1996,
June 30, 1996, July 31, 1996 and August 31, 1996, and for the
period commencing September 1, 1996 through the date immediately
prior to the date hereof. Each such balance sheet presents fairly
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the financial condition, assets and liabilities of Seller as of
its date; each such statement of income presents fairly the
results of operations of Seller for the period indicated. The
financial statements referred to in this Section are in accordance
with the books and records of Seller. Since December 31, 1995 and
since June 30, 1996: (a) there has at no time been a material
adverse change in the financial condition, results of operations,
businesses, properties, assets, liabilities of Seller, the
Property or Business; (b) the Business has been conducted in all
respects only in the ordinary course; and (c) Seller has not
suffered an extraordinary loss (whether or not covered by
insurance) or waived any right of substantial value.
6.1.19 Certificate of Occupancy. To
the best of Seller's knowledge, no Certificates of Occupancy are
required for any Improvements.
6.1.20 Real Estate Taxes. The last
annual amount assessed for real estate and similar taxes on the
Premises is $33,637.63.
6.1.21 Full Disclosure. To the best
knowledge of Seller, none of the information supplied by Seller
herein or in the exhibits hereto contains any untrue statement of
a material fact or omits to state a material fact required to be
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stated herein or necessary in order to make the statements herein,
in light of the circumstances under which they are made, not
misleading.
6.1.22 Seller's Knowledge. For
purposes of this Section 6.1 the expressions "to the best of
Seller's knowledge" and "to the best knowledge of Seller" shall
mean the actual knowledge of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, without duty of further investigation.
6.2 Representations and Warranties of Purchaser.
Purchaser hereby represents and warrants to Seller as follows:
6.2.1 Organization; Power and
Authority. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, 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.
6.2.2 Due Authorization and Execution;
Effect of Agreement. The execution, delivery and performance by
Purchaser of this Agreement and the consummation by Purchaser of
the transactions contemplated hereby have been duly authorized by
all necessary corporate action required to be taken on the part of
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Purchaser. This Agreement has been duly and validly executed and
delivered by Purchaser and constitutes the valid and binding
obligation of Purchaser, enforceable in accordance with its terms.
The execution, delivery and performance by Purchaser of this
Agreement and the consummation by Purchaser 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 Purchaser is subject; (b) violate
any order, judgment or decree applicable to Purchaser; or (c)
conflict with or result in a breach of or a default under any term
or condition of Purchaser's Certificate of Incorporation or By-
Laws or any agreement or other instrument to which Purchaser 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.
6.3 Survival. The representations and warranties of
the parties made by the Seller in Sections 6.1.2, 6.1.3, 6.1.5.1,
6.1.9, 6.1.10 and 6.1.14 shall survive the Closing until the
expiration of the statute of limitations applicable to claims that
may be asserted against the Purchaser, the Property or Business in
respect of the matters covered thereby. All other representations
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and warranties of the parties made in Article 6 shall survive the
Closing for a period of six months.
7. Further Assurances. At any time and from time to time
after the Closing, each party shall, at the request of such other
party, execute and deliver any further instruments or documents
and take all such further action as such party may reasonably
request in order to transfer into the name of Purchaser any and
all Property contemplated to be sold pursuant to this Agreement
and to further consummate the transactions contemplated by this
Agreement. This Article shall survive the Closing.
8. Brokers. Seller and Purchaser 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 The Greenwich
Group International LLC (the "Brokers"). Purchaser and Seller
hereby respectively agree to indemnify and hold harmless the other
party from and against all loss, liability, damage and expense
(including, without limitation, attorneys' fees) imposed upon or
incurred by the other party by reason of any claim for commissions
or other compensation for bringing about this transaction by any
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broker, finder or similar agent or party other than the Brokers
who claims to have dealt with the indemnifying party in connection
with this transaction. Seller agrees to pay Broker any
commissions due the Brokers in connection with this transaction
pursuant to a separate agreement or agreements between Seller and
the Brokers. The provisions of this Article shall survive the
Closing or any termination of this Agreement.
9. "As Is". Purchaser represents that it has inspected
the Property and is familiar with the physical condition thereof,
and that in reliance upon such inspection and the representations,
warranties, covenants and agreements of Seller contained herein,
it agrees to accept the Property "as is", in its condition at the
date of this Agreement.
10. Costs and Fees. Documentary stamps for the Deed, deed
transfer or conveyancing taxes, if any, shall be payable by
Seller, and in no event be payable by Purchaser. Purchaser shall
pay the expenses incurred in connection with (a) the examination
of title, (b) the issuance of a policy of title insurance for
Purchaser, and (c) a survey of the Property. 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
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jurisdiction where the Premises are located. The provisions of
this Article shall survive the Closing.
11. Indemnification.
11.1 Subject to the further provisions of this
Article, Seller shall protect, defend, hold harmless and indemnify
Purchaser, its officers, directors, shareholders, employees,
agents and affiliates, and their respective successors and
assigns, from, against and in respect of any and all losses,
liabilities, deficiencies, penalties, fines, costs, damages and
expenses whatsoever (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
Seller which is not an Assumed Liability; (ii) the breach of any
representation, warranty, covenant or agreement of Seller
contained in this Agreement or in any document or other writing
delivered pursuant to this Agreement; and (iii) any and all
actions, suits, proceedings, claims, demands, assessments,
judgments, costs and expenses (including without limitation,
interest, penalties, reasonable legal fees and accounting fees)
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incident to the foregoing and the enforcement of the provisions of
this Section 11.1.
11.2 Subject to the further provisions of this
Article, Purchaser shall protect, defend, hold harmless and
indemnify Seller, its partners, employees and agents, and its
successors and assigns from, against and in respect of any and all
Losses that may be suffered or incurred by any of them arising
from or by reason of (i) any of the Assumed Liabilities on and
after the date hereof, (ii) the breach of any representation,
warranty, covenant or agreement of Purchaser contained in this
Agreement or in any document or other writing delivered pursuant
to this Agreement; and (iii) 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
11.2.
11.3 Whenever a party hereto (such party and each of
its affiliates which is entitled to indemnification pursuant to
any provision of this Agreement, 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),
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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. 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
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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 11.3 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 to the Indemnifying Party
resulting from the Indemnified Party's delay or failure to provide
a Notice of Claim as provided in this Section 11.3.
11.4 For purposes of this Article, 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.
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11.5 Survival. The provisions of this Article 11
shall survive the Closing.
12. Bulk Sales. The parties agree to waive the
requirements, if any, of all applicable bulk sales laws. Seller
agrees to indemnify and hold Purchaser harmless from, and
reimburse Purchaser for, any loss, cost, expense, liability or
damage which Purchaser may suffer or incur by virtue of the
noncompliance by Seller or Purchaser with any laws pertaining to
fraudulent conveyance, bulk sales or any similar law which might
make the sale or transfer of any part of the Property or Business
ineffective as to creditors of, or claimants against, the Seller.
13. 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 Seller to Purchaser shall simultaneously be given in
either manner provided above to Squadron, Ellenoff, Plesent &
▇▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq. A copy of any Notice given by
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Purchaser to Seller shall simultaneously be given in either manner
provided above to ▇'▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇,
Esq. or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. 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.
14. Miscellaneous.
14.1 This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and
assigns. Each of the individuals comprising Seller shall be
jointly and severally liable for each and every covenant,
agreement, obligation, representation and warranty of Seller
hereunder.
14.2 This Agreement shall be governed by, interpreted
under and construed and enforced in accordance with, the laws of
the State of New York.
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14.3 The captions or article headings in this
Agreement are for convenience only and do not constitute part of
this Agreement.
14.4 This Agreement has been fully negotiated by the
parties and rules of construction construing ambiguities against
the party responsible for drafting agreements shall not apply.
14.5 It is agreed that, except where otherwise
expressly provided in particular Articles or Sections of this
Agreement, none of the provisions of this Agreement shall survive
the Closing.
14.6 This Agreement (including the Exhibits 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.
14.7 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.
14.8 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
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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.
14.9 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.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
KKL GOLF PARTNERSHIP
By: ▇▇▇▇▇▇ SPORTS MANAGEMENT,INC.,
general partner
By:______________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
CAROLINA SPRINGS FAMILY
GOLF CENTERS, INC.
By: _____________________
Name:
Title: