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PURCHASE AND SALE AGREEMENT
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Seller: PERSIMMON RIDGE GOLF GROUP, L.P.,
a Delaware limited partnership
Buyer: GOLF TRUST OF AMERICA, L.P.,
a Delaware limited partnership
Property: Persimmon Ridge Golf Club
Louisville, Kentucky
Purchase
Price: $7,500,000
Effective
Dated: February 26, 1998
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS; RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . . . . .2
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . .3
(a) Act of Bankruptcy . . . . . . . . . . . . . . . . . . . . . .3
(b) Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . .3
(c) Authorizations. . . . . . . . . . . . . . . . . . . . . . . .3
(d) ▇▇▇▇ of Sale - Personal Property. . . . . . . . . . . . . . .4
(e) Closing . . . . . . . . . . . . . . . . . . . . . . . . . . .4
(f) Closing Date. . . . . . . . . . . . . . . . . . . . . . . . .4
(g) Closing Statements. . . . . . . . . . . . . . . . . . . . . .4
(h) Current Assets. . . . . . . . . . . . . . . . . . . . . . . .4
(i) Deed. . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
(j) Disclosure Schedule . . . . . . . . . . . . . . . . . . . . .4
(k) Due Diligence Period. . . . . . . . . . . . . . . . . . . . .4
(l) Employment Agreements . . . . . . . . . . . . . . . . . . . .5
(m) Environmental Claim . . . . . . . . . . . . . . . . . . . . .5
(n) Environmental Laws. . . . . . . . . . . . . . . . . . . . . .5
(o) Escrow Agent. . . . . . . . . . . . . . . . . . . . . . . . .5
(p) FIRPTA Certificate. . . . . . . . . . . . . . . . . . . . . .5
(q) Golf Club . . . . . . . . . . . . . . . . . . . . . . . . . .6
(r) Golf Course Lease . . . . . . . . . . . . . . . . . . . . . .6
(s) Governmental Body . . . . . . . . . . . . . . . . . . . . . .6
(t) Hazardous Substances. . . . . . . . . . . . . . . . . . . . .6
(u) Improvements. . . . . . . . . . . . . . . . . . . . . . . . .6
(v) Intangible Personal Property. . . . . . . . . . . . . . . . .6
(w) Inventory . . . . . . . . . . . . . . . . . . . . . . . . . .6
(x) Land. . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
(y) Mortgage Indebtedness . . . . . . . . . . . . . . . . . . . .7
(z) Operating Agreements. . . . . . . . . . . . . . . . . . . . .7
(aa) Owner's Title Policy. . . . . . . . . . . . . . . . . . . . .7
(ab) Permitted Title Exceptions. . . . . . . . . . . . . . . . . .7
(ac) Person. . . . . . . . . . . . . . . . . . . . . . . . . . . .7
(ad) Preliminary Title Report. . . . . . . . . . . . . . . . . . .7
(ae) Property. . . . . . . . . . . . . . . . . . . . . . . . . . .7
(af) Purchase Price. . . . . . . . . . . . . . . . . . . . . . . .7
(ag) Real Property . . . . . . . . . . . . . . . . . . . . . . . .8
(ah) Restaurant Supplies . . . . . . . . . . . . . . . . . . . . .8
(ai) SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
(aj) State . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
(ak) Summary Sheet . . . . . . . . . . . . . . . . . . . . . . . .8
(al) Survey. . . . . . . . . . . . . . . . . . . . . . . . . . . .8
(am) Tangible Personal Property. . . . . . . . . . . . . . . . . .8
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(an) Title Company . . . . . . . . . . . . . . . . . . . . . . . .8
(ao) Title Objections. . . . . . . . . . . . . . . . . . . . . . .8
(ap) Seller's Organizational Documents . . . . . . . . . . . . . .8
(aq) Utilities . . . . . . . . . . . . . . . . . . . . . . . . . .8
(ar) WARN Act. . . . . . . . . . . . . . . . . . . . . . . . . . .8
1.2 Rules of Construction. . . . . . . . . . . . . . . . . . . . . . .8
(a) Gender. . . . . . . . . . . . . . . . . . . . . . . . . . . .9
(b) Section References. . . . . . . . . . . . . . . . . . . . . .9
(c) Headings. . . . . . . . . . . . . . . . . . . . . . . . . . .9
(d) Construction. . . . . . . . . . . . . . . . . . . . . . . . .9
ARTICLE 2
PURCHASE AND SALE; PAYMENT OF PURCHASE PRICE . . . . . . . . . . . . . . . .9
2.1 Purchase and Sale. . . . . . . . . . . . . . . . . . . . . . . . .9
2.2 Due Diligence Period . . . . . . . . . . . . . . . . . . . . . . .9
(a) Site Inspection . . . . . . . . . . . . . . . . . . . . . . .9
(b) Inspection of Documents . . . . . . . . . . . . . . . . . . 10
(c) Survey. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(d) Preliminary Title Report. . . . . . . . . . . . . . . . . . 11
(e) Disclosure Schedule . . . . . . . . . . . . . . . . . . . . 12
(f) UCC Search. . . . . . . . . . . . . . . . . . . . . . . . . 12
(g) Audit . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.3 Payment of Purchase Price. . . . . . . . . . . . . . . . . . . . 12
ARTICLE 3
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . . . . . . 13
3.1 Organization and Power . . . . . . . . . . . . . . . . . . . . . 13
3.2 Authorization and Execution. . . . . . . . . . . . . . . . . . . 13
3.3 Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . 13
3.4 No Special Taxes . . . . . . . . . . . . . . . . . . . . . . . . 14
3.5 Compliance with Existing Laws. . . . . . . . . . . . . . . . . . 14
3.6 Real Property. . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.7 Personal Property. . . . . . . . . . . . . . . . . . . . . . . . 15
3.8 Operating Agreements . . . . . . . . . . . . . . . . . . . . . . 15
3.9 Warranties and Guaranties. . . . . . . . . . . . . . . . . . . . 15
3.10 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.11 Condemnation Proceedings; Roadways . . . . . . . . . . . . . . . 16
3.12 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.13 Labor Disputes and Agreements. . . . . . . . . . . . . . . . . . 17
3.14 Financial Information. . . . . . . . . . . . . . . . . . . . . . 17
3.15 Organizational Documents . . . . . . . . . . . . . . . . . . . . 17
3.16 Operation of Property. . . . . . . . . . . . . . . . . . . . . . 17
3.17 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.18 Land Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.19 Hazardous Substances . . . . . . . . . . . . . . . . . . . . . . 18
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3.20 Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.21 Cub Cuts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.22 Leased Property. . . . . . . . . . . . . . . . . . . . . . . . . 19
3.23 Sufficiency of Certain Items . . . . . . . . . . . . . . . . . . 20
3.24 Survival of Representations. . . . . . . . . . . . . . . . . . . 20
ARTICLE 4
BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. . . . . . . . . . . . . 20
4.1 Organization and Power . . . . . . . . . . . . . . . . . . . . . 20
4.2 Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . 21
4.3 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.4 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.5 Authorization and Execution. . . . . . . . . . . . . . . . . . . 21
ARTICLE 5
CONDITIONS AND ADDITIONAL COVENANTS. . . . . . . . . . . . . . . . . . . . 21
5.1 As to Buyer's Obligations. . . . . . . . . . . . . . . . . . . . 21
(a) Seller's Deliveries . . . . . . . . . . . . . . . . . . . . 21
(b) Representations, Warranties and Covenants . . . . . . . . . 22
(c) Title Insurance . . . . . . . . . . . . . . . . . . . . . . 22
(d) Title to Property . . . . . . . . . . . . . . . . . . . . . 22
(e) Condition of Property . . . . . . . . . . . . . . . . . . . 22
(f) Utilities . . . . . . . . . . . . . . . . . . . . . . . . . 23
(g) Liquor License. . . . . . . . . . . . . . . . . . . . . . . 23
5.2 As to Seller's Obligations . . . . . . . . . . . . . . . . . . . 23
(a) Buyer's Deliveries. . . . . . . . . . . . . . . . . . . . . 23
(b) Representations, Warranties and Covenants . . . . . . . . . 23
ARTICLE 6
CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.1 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.2 Seller's Deliveries. . . . . . . . . . . . . . . . . . . . . . . 24
(a) Seller's Certificate. . . . . . . . . . . . . . . . . . . . 24
(b) The Deed. . . . . . . . . . . . . . . . . . . . . . . . . . 24
(c) The ▇▇▇▇ of Sale - Personal Property. . . . . . . . . . . . 24
(d) Evidence of Title . . . . . . . . . . . . . . . . . . . . . 24
(e) Title Requirements. . . . . . . . . . . . . . . . . . . . . 24
(f) The FIRPTA Certificate. . . . . . . . . . . . . . . . . . . 24
(g) Warranties. . . . . . . . . . . . . . . . . . . . . . . . . 24
(h) Organizational Documents. . . . . . . . . . . . . . . . . . 24
(i) Board Resolutions . . . . . . . . . . . . . . . . . . . . . 24
(j) Certificate of Occupancy. . . . . . . . . . . . . . . . . . 25
(k) Evidence of Bulk Sales Compliance . . . . . . . . . . . . . 25
(l) Insurance Policies. . . . . . . . . . . . . . . . . . . . . 25
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(m) Improvements Plans. . . . . . . . . . . . . . . . . . . . . 25
(n) Communication; Addresses. . . . . . . . . . . . . . . . . . 25
(o) Tax Bills . . . . . . . . . . . . . . . . . . . . . . . . . 25
(p) Surveys . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(q) Tournament Schedule . . . . . . . . . . . . . . . . . . . . 25
(r) Accounts Receivable . . . . . . . . . . . . . . . . . . . . 26
(s) Payoff Statement. . . . . . . . . . . . . . . . . . . . . . 26
(t) Tenant Notices. . . . . . . . . . . . . . . . . . . . . . . 26
(u) Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 26
6.3 Buyer's Deliveries . . . . . . . . . . . . . . . . . . . . . . . 26
(a) Purchase Price. . . . . . . . . . . . . . . . . . . . . . . 26
(b) Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 26
6.4 Mutual Deliveries. . . . . . . . . . . . . . . . . . . . . . . . 26
(a) Closing Statements. . . . . . . . . . . . . . . . . . . . . 26
(b) Liquor License Transfer Documents . . . . . . . . . . . . . 27
(c) Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 27
6.5 Closing Costs. . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.6 Income and Expense Allocations . . . . . . . . . . . . . . . . . 27
(a) Rents and Fees. . . . . . . . . . . . . . . . . . . . . . . 28
(b) Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(c) Utilities . . . . . . . . . . . . . . . . . . . . . . . . . 28
(d) Fuel. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(e) Municipal Improvement Liens . . . . . . . . . . . . . . . . 28
(f) License and Permit Fees . . . . . . . . . . . . . . . . . . 28
(g) Income and Expenses . . . . . . . . . . . . . . . . . . . . 28
(h) Miscellaneous Prorations. . . . . . . . . . . . . . . . . . 28
6.7 Sales Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.8 Post-Closing Adjustments . . . . . . . . . . . . . . . . . . . . 28
(a) Accounts Receivable . . . . . . . . . . . . . . . . . . . . 28
(b) Availability of Bills . . . . . . . . . . . . . . . . . . . 29
(c) Accounts Payable on Inventory . . . . . . . . . . . . . . . 29
ARTICLE 7
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.1 Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.2 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.3 Real Estate Broker . . . . . . . . . . . . . . . . . . . . . . . 30
7.4 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 30
7.5 Liquor Licenses. . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 8
LIABILITY OF BUYER; INDEMNIFICATION BY SELLER;
TERMINATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.1 Liability of Buyer . . . . . . . . . . . . . . . . . . . . . . . 31
8.2 Indemnification by Seller. . . . . . . . . . . . . . . . . . . . 31
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8.3 Termination by Buyer . . . . . . . . . . . . . . . . . . . . . . 32
8.4 Termination by Seller. . . . . . . . . . . . . . . . . . . . . . 32
8.5 Costs and Attorneys' Fees. . . . . . . . . . . . . . . . . . . . 32
ARTICLE 9
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.1 Completeness; Modification . . . . . . . . . . . . . . . . . . . 33
9.2 Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.3 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 33
9.4 Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.8 Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.9 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.10 Incorporation by Reference . . . . . . . . . . . . . . . . . . . 34
9.11 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.12 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . 34
9.13 No Partnership . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.14 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 35
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EXHIBITS
Exhibit A - Legal Description of the Land
Exhibit B - Description of Improvements
Exhibit C - Tangible Personal Property
Exhibit D - Intangible Personal Property
Exhibit E - ▇▇▇▇ of Sale - Personal Property
Exhibit F - Deed
Exhibit G - FIRPTA Affidavit of Seller
Exhibit H - Contracts and Operating Agreements
Exhibit I - Due Diligence List
Exhibit J - Warranty Disclosure Schedule
Exhibit K - Seller's Certificate
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PURCHASE AGREEMENT
Summary Sheet
Buyer: GOLF TRUST OF AMERICA, L.P., a Delaware limited partnership
Seller: PERSIMMON RIDGE GOLF CLUB, L.P.,
a Delaware limited partnership
Effective
Date: February 26, 1998
Golf Course: Persimmon Ridge Golf Club
Louisville, Kentucky
Trade Name: Persimmon Ridge Golf Club
Purchase Seven Million Five Hundred Thousand Dollars
Price: ($7,500,000)
Notice Address
of Seller: Persimmon Ridge Golf Club, L.P.
c/o International Golf Group, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with a Tachau ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PLC
copy to: ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Notice Address
of Buyer: Golf Trust of America, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
copy to: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
viii
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into by and
between Buyer and Seller.
RECITALS:
A. Seller is the owner of that certain Persimmon Ridge Golf Course and
related improvements located on the real property more particularly described in
EXHIBIT A attached hereto (the "Land").
B. Subject to the terms of this Agreement, Seller hereby agrees to sell
to Buyer, and Buyer hereby agrees to buy from Seller, all of Seller's right,
title and interest in and to the following:
1. The Land, together with the golf course, driving range, putting
greens, clubhouse facilities, snack bar, restaurant, pro shop, buildings,
structures, parking lots, improvements, fixtures and other items of real estate
located on the Land, as more particularly described in EXHIBIT B attached hereto
(the "Improvements").
2. All rights, privileges, easements and appurtenances to the Land and
the Improvements, if any, including, without limitation, all of Seller's right,
title and interest, if any, in and to all mineral and water rights and all
easements, rights-of-way and other appurtenances used or connected with the
beneficial use or enjoyment of the Land and the Improvements, including, without
limitation, concession agreements for spas and the like (the Land, the
Improvements and all such easements and appurtenances are sometimes collectively
hereinafter referred to as the "Real Property").
3. All items of tangible personal property and fixtures (if any) owned
or leased by Seller and located on or used in connection with the Real Property,
including, but not limited to, machinery, equipment, furniture, furnishings,
movable walls or partitions, phone systems and other control systems, restaurant
equipment, computers or trade fixtures, golf course operation and maintenance
equipment, including mowers, tractors, aerators, sprinklers, sprinkler and
irrigation facilities and equipment, valves or rotors, driving range equipment,
golf carts, athletic training equipment, office equipment or machines, other
decorations, and equipment or machinery of every kind or nature located on or
used in connection with the operation of the Real Property whether on or
off-site, including all warranties and guaranties associated therewith (the
"Tangible Personal Property"). A schedule of the Tangible Personal Property is
attached to this Agreement as EXHIBIT C, indicating whether such Tangible
Personal Property is owned or leased.
4. All intangible personal property owned or possessed by Seller and
used in connection with the ownership, operation,
1
leasing or maintenance of the Real Property or the Tangible Personal
Property, all goodwill attributed to the Property, and any and all trademarks
and copyrights, trade names (including "Persimmon Ridge Golf Club and
"Persimmon Ridge"), guarantees, Authorizations (as hereinafter defined),
general intangibles, business records, plans and specifications, and surveys
pertaining to the Property, all licenses, permits and approvals with respect
to the construction, ownership, operation or maintenance of the Property, any
unpaid award for taking by condemnation or any damage to the Real Property by
reason of a change of grade or location of or access to any street or
highway, excluding (a) any of the aforesaid rights that Buyer elects not to
acquire and (b) the Current Assets, as hereinafter defined (collectively, the
"Intangible Personal Property"). A schedule of the Intangible Personal
Property is attached to this Agreement as EXHIBIT D. (The Real Property,
Tangible Personal Property and Intangible Personal Property are sometimes
collectively referred to as the "Property".)
C. Upon the acquisition by the Buyer of the Property, the Buyer will
lease the Property to a third-party lessee pursuant to a separate lease (the
"Golf Course Lease").
NOW, THEREFORE, in consideration of the mutual covenants, promises and
undertakings of the parties hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, it is agreed:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
1.1 DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meanings set forth on the Summary Sheet. The following terms shall
have the indicated meanings:
(a) "ACT OF BANKRUPTCY" shall mean if a party to this agreement or
any general partner thereof shall (a) apply for or consent to the appointment
of, or the taking of possession by, a receiver, custodian, trustee or liquidator
of itself or of all or a substantial part of its Property, (b) admit in writing
its inability to pay its debts as they become due, (c) make a general assignment
for the benefit of its creditors, (d) file a voluntary petition or commence a
voluntary case or proceeding under the Federal Bankruptcy Code (as now or
hereafter in effect) or any new bankruptcy statute, (e) be adjudicated bankrupt
or insolvent,(f) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up or composition or
adjustment of debts, (g) fail to controvert in a timely and appropriate manner,
or acquiesce in writing to, any petition filed against it in an involuntary case
or proceeding under the Federal Bankruptcy Code (as now or hereafter in
effect)or any new bankruptcy statute, or (h) take any corporate or partnership
action for the purpose of effecting any of the foregoing; or if a proceeding or
case shall be commenced, without
2
the application or consent of a party hereto or any general partner thereof,
in any court of competent jurisdiction seeking (1) the liquidation,
reorganization, dissolution or winding-up, or the composition or readjustment
of debts, of such party or general partner, (2) the appointment of a
receiver, custodian, trustee or liquidator or such party or general partner
or all or any substantial part of its assets, or (3) other similar relief
under any law relating to bankruptcy, insolvency, reorganization, winding-up
or composition or adjustment of debts, and such proceeding or case shall
continue undismissed; or an order (including an order for relief entered in
an involuntary case under the Federal Bankruptcy Code, as now or hereafter in
effect) judgment or decree approving or ordering any of the foregoing shall
be entered and continue unstayed and in effect, for a period of sixty
(60)consecutive days.
(b) "AFFILIATE" shall mean, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person.
(c) "AUTHORIZATIONS" shall mean all licenses, permits and approvals
required by any governmental or quasi-governmental agency, body or officer for
the ownership, operation and use of the Property or any part thereof as a golf
course with the existing uses and operations, including clubhouse, bar and
related facilities, as applicable.
(d) "▇▇▇▇ OF SALE - PERSONAL PROPERTY" shall mean a ▇▇▇▇ of sale
conveying title to the Tangible Personal Property and Intangible Personal
Property from Seller to Buyer, substantially in the form of EXHIBIT E attached
hereto.
(e) "CLOSING" shall mean the time the Deed and each of the deliveries
to be made by Seller (as provided in Section 6.2)and Buyer (as provided in
Section 6.3) are made and each of the Closing conditions of Buyer and Seller in
Sections 5.1 and 5.2, respectively, have been satisfied or waived.
(f) "CLOSING DATE" shall mean the date on which the Closing occurs.
(g) "CLOSING STATEMENTS" shall have the meaning set forth in Section
6.4(a).
(h) "CURRENT ASSETS" shall mean cash, accounts receivable and
Inventory (as hereinafter defined) held by Seller prior to the Closing Date.
(i) "DEED" shall mean a limited warranty deed substantially in the
form of EXHIBIT F attached hereto (or lease assignment, if the Property is owned
by Seller pursuant to a ground lease), in form and substance satisfactory to
Buyer, conveying the title of Seller to the Real Property, with such grant or
warranty covenants of title from Seller to Buyer as are customary in the
3
state in which the Property is located, subject only to Permitted Title
Exceptions. If there is any difference between the description of the Land,
as shown on EXHIBIT A attached hereto and the description of the Land as
shown on the Survey, the description of the Land to be contained in the Deed
and the description of the Land set forth in the Owner's Title Policy (as
defined herein) shall conform to the description shown on the Survey.
(j) "DISCLOSURE SCHEDULE" shall have the meaning set forth in Section
2.2(e).
(k) "DUE DILIGENCE PERIOD" shall mean the period commencing at 9:00
a.m., Eastern Standard time, on the Effective Date, and continuing through 5:00
p.m., Eastern Standard time, on the date that is thirty (30) days from the
Effective Date; provided, however, the parties shall make a good faith effort to
consummate the Closing by March 9, 1998.
(l) "EMPLOYMENT AGREEMENTS" shall mean all employment agreements,
written or oral, between Seller or its managing agent and the persons employed
with respect to the Property in effect as of the Effective Date.
(m) "ENVIRONMENTAL CLAIM" shall mean any administrative, regulatory
or judicial action, suit, demand, letter, claim, lien, notice of non-compliance
or violation, investigation or proceeding relating in any way to any
Environmental Laws or any permit issued under any Environmental Law including,
without limitation, (i) by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Laws, and (ii) by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Substances or arising from alleged
injury or threat of injury to health, safety or the environment.
(n) "ENVIRONMENTAL LAWS" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.;
the Hazardous Materials Transportation Act, as amended, 49 U.S.C. Section 1801,
et seq.; the Superfund Amendments and reauthorization Act of 1986, Pub. L.
99-499 and 99-563; the Occupational Safety and Health Act of 1970, as amended,
29 U.S.C. Section 651, et seq.; the Clean Air Act, as amended, 42 U.S.C. Section
7401, et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 201,
et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section
1251, et seq.; and all federal, state and local environmental health and safety
statutes, ordinance, codes, rules, regulations, orders and decrees regulating,
relating to or imposing liability or standards concerning or in connection with
Hazardous Substances.
(o) "ESCROW AGENT" shall mean the Title Company.
4
(p) "FIRPTA CERTIFICATE" shall mean the affidavit of Seller under
Section 1445 of the Internal Revenue Code certifying that Seller is not a
foreign corporation, foreign partnership, foreign trust, foreign estate or
foreign person (as those terms are defined in the Internal Revenue Code and the
Income Tax Regulations), substantially in the form of EXHIBIT G attached hereto.
(q) "GOLF CLUB" shall mean any organization, club or group whereby
memberships are offered by Seller for purchase in connection with golfing
privileges at the Property.
(r) "GOLF COURSE LEASE" shall have the meaning set forth in Recital
C.
(s) "GOVERNMENTAL BODY" shall mean any federal state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
(t) "HAZARDOUS SUBSTANCES" shall mean any substance, material, waste,
gas or particulate matter which is regulated by any local, state or federal
governmental authority, including but not limited to any material or substance
which is (i) defined as a "hazardous waste", "hazardous material", or
"restricted hazardous waste" or words of similar import under any provision of
any Environmental Law; (ii) petroleum or petroleum products;(iii) asbestos; (iv)
polychlorinated biphenyl; (v) radioactive material; (vi) radon gas; (vii)
designated as a "hazardous substance" pursuant to Section 311 of the Clean ▇▇▇▇▇
▇▇▇, ▇▇▇.▇.▇. Section 1251, et seq. (42 U.S.C. Section 1317); (viii) defined as
a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903); or (ix)
defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601.
et sea. (42 U.S.C. Section 9601).
(u) "IMPROVEMENTS" shall have the meaning set forth in Recital B(1).
(v) "INTANGIBLE PERSONAL PROPERTY" shall have the meaning set forth
in Recital B(4).
(w) "INVENTORY" shall mean the merchandise located in any pro shop or
similar facility and held for sale in the ordinary course of Seller's business,
and any such merchandise that is on order as of the Closing Date.
(x) "LAND" shall have the meaning set forth in Recital A.
(y) "MORTGAGE INDEBTEDNESS" shall mean any indebtedness of Seller
which is secured by a mortgage or deed of trust on the Property.
5
(z) "OPERATING AGREEMENTS" shall mean any management agreements,
maintenance or repair contracts, service contracts, supply contracts and other
agreements, if any, in effect with respect to the construction, ownership,
operation, occupancy or maintenance of the Property in force and effect as of
the Effective Date, as more particularly set forth on EXHIBIT H attached hereto.
(aa) "OWNER'S TITLE POLICY" shall mean a 1970 Form B American Land
Title Association extended coverage owner's policy of title insurance issued to
Buyer by the Title Company, pursuant to which the Title Company insures Buyer's
ownership of fee simple title (or ground lease interest, as applicable) to the
Real Property (including the marketability thereof) subject only to Permitted
Title Exceptions and shall include those title endorsements required by Buyer.
The Owner's Title Policy shall insure Buyer in the amount designated by Buyer
and shall be acceptable in form and substance to Buyer.
(ab) "PERMITTED TITLE EXCEPTIONS" shall mean those exceptions to
title to the Real Property that are satisfactory to Buyer as determined under
this Agreement, and as evidenced by a pro forma title report.
(ac) "PERSON" means and includes natural persons, corporations,
limited partnerships, limited liability companies, general partnerships, joint
stock companies, joint ventures, associations, companies, trusts, banks, trusts
companies, land trusts, business trusts, Indian tribes or other organizations,
whether or not legal entities, and governments and agencies and political
subdivisions thereof.
(ad) "PRELIMINARY TITLE REPORT" shall have the meaning set forth in
Section 2.2(d).
(ae) "PROPERTY" shall have the meaning set forth in Recital B(4).
(af) "PURCHASE PRICE" shall mean Seven Million Five Hundred Thousand
Dollars ($7,500,000).
(ag) "REAL PROPERTY" shall have the meaning set forth in Recital B(2).
(ah) "RESTAURANT SUPPLIES" shall mean the consumable goods, supplies
(including beverages) and all silverware, glassware, napkins, tablecloths, paper
goods and related goods necessary to efficiently operate the restaurant, bar,
lounge or snack shop located upon or within the Improvements.
(ai) "SEC" shall mean the United States Securities and Exchange
Commission.
6
(aj) "STATE" shall mean the state or commonwealth in which the
Property is located.
(ak) "SUMMARY SHEET" shall mean the summary page attached to this
Agreement and incorporated herein by reference.
(al) "SURVEY" shall mean the survey prepared pursuant to Section
2.2(c).
(am) "TANGIBLE PERSONAL PROPERTY" shall have the meaning set forth in
Recital B(3).
(an) "TITLE COMPANY" shall mean a title insurance company selected by
Buyer and reasonably acceptable to Seller and authorized to conduct a title
insurance business in the State.
(ao) "TITLE OBJECTIONS" shall have the meaning set forth in Section
2.2(d).
(ap) "SELLER'S ORGANIZATIONAL DOCUMENTS" shall mean the current
organizational documents of Seller.
(aq) "UTILITIES" shall mean public sanitary and storm sewers, natural
gas, telephone, public water facilities, electrical facilities and all other
utility facilities and services necessary for the operation and occupancy of the
Property.
(ar) "WARN ACT" shall mean the Worker Adjustment Restraining and
Notification Act, as amended.
1.2 RULES OF CONSTRUCTION. The following rules shall apply to the
construction and interpretation of this Agreement:
(a) GENDER. Singular words shall connote the plural number as well
as the singular and vice versa, and the masculine shall include the feminine and
the neuter.
(b) SECTION REFERENCES. All references herein to particular
articles, sections, subsections, clauses or exhibits are references to articles,
sections, subsections, clauses or exhibits of this Agreement.
(c) HEADINGS. The table of contents and headings contained herein
are solely for convenience of reference and shall not constitute a part of this
Agreement nor shall they affect its meaning, construction or effect.
(d) CONSTRUCTION. Each party hereto and its counsel have reviewed
and revised (or requested revisions of) this Agreement and have participated in
the preparation of this Agreement, and therefore any usual rules of construction
requiring that ambiguities are to be resolved against a particular party shall
not be applicable in the construction and interpretation of this Agreement or
any exhibits hereto.
7
ARTICLE 2
PURCHASE AND SALE; PAYMENT OF PURCHASE PRICE
2.1 PURCHASE AND SALE. Seller agrees to sell and Buyer agrees to buy the
Property and all Inventory for the Purchase Price. The Purchase Price of
$7,500,000.00 shall be paid by Buyer to Seller as follows: (a) $7,300,000.00
shall be paid to Seller by federal funds wire to an account designated by Seller
on the Closing Date, and (b) $100,000.00 shall be paid to Seller in certified
funds or by federal funds wire on each of the first and second anniversary dates
of the Closing Date.
2.2 DUE DILIGENCE PERIOD.
(a) SITE INSPECTION. Buyer shall have the right, during the Due
Diligence Period, and thereafter if Buyer notifies Seller that Buyer has elected
to proceed to Closing in the manner described below, to enter upon the Real
Property and to perform, at Seller's expense, such surveying, engineering, and
environmental studies and investigations as Buyer may deem appropriate. If such
tests, studies and investigations warrant, in Buyer's sole, absolute and
unreviewable discretion, the purchase of the Property for the purposes
contemplated by Buyer, then Buyer may elect to proceed to Closing and shall so
notify Seller and the Escrow Agent, in writing, prior to the expiration of the
Due Diligence Period. If for any reason Buyer does not so notify Seller and
Escrow Agent of its determination to proceed to Closing prior to the expiration
of the Due Diligence Period, or if Buyer notifies Seller and Escrow Agent, in
writing, prior to the expiration of the Due Diligence Period that it has
determined not to proceed to Closing, this Agreement automatically shall
terminate and Buyer and Escrow Agent shall be released from any further
liability or obligation under this Agreement and, if requested by Seller, Buyer
will deliver such reports and materials to Seller.
(b) INSPECTION OF DOCUMENTS. During the Due Diligence Period, Seller
shall make available to Buyer, its agents, auditors, engineers, attorneys and
other designees, for inspection and/or copying, copies of all existing
architectural and engineering studies, surveys, title insurance policies, zoning
and site plan materials, correspondence, environmental audits and reviews,
books, records, tax returns, bank statements, financial statements, fee
schedules and any and all other material or information relating to the Property
which are in, or come into, Seller's possession or control, or which Seller may
attain. Such information is more particularly described in EXHIBIT I attached
hereto, as the same may be amended or supplemented by Seller from time to time.
(c) SURVEY. Within fifteen (15) days from the Effective Date, if
requested by Buyer, Seller shall deliver to Buyer an ALTA/ACSM survey or a
boundary survey, as reasonably required by Buyer, of the Land and the
Improvements, prepared by a surveyor licensed to practice as such in the State,
bearing a date not
8
earlier than sixty (60) days from the date of its delivery and certified to
both Buyer, Seller and the Title Company (and any lender or other party
designated by Buyer), showing the legal description of the Land, all
dimensions thereof, and showing the location of Improvements on the Land and
the setbacks thereof from the property line, as well as the setbacks required
by applicable zoning laws or regulations (the "Survey"). The Survey shall
locate all easements which serve and affect the Land. The Survey shall
reflect that no buildings or improvements located on any other property
encroach upon the Land and that the Improvements located upon the Land do not
encroach upon any other property. The surveyor preparing the Survey shall
certify that (i) the Survey is an accurate Survey of the Land and the
Improvements, (ii) that the Survey was made under the surveyor's supervision,
(iii) that the Survey meets (a) the requirements of the Title Company for the
issuance of the Owner's Title Policy free of any general survey exception,
and (b) the minimum technical standards for land boundary surveys with
improvements, set forth by applicable statutes or applicable professional
organizations, and (iv) all buildings and other structures and their relation
to the property lines are shown and that there are no encroachments,
overlaps, boundary line disputes, easements, or claims of easements visible
on the ground, other than those shown on the Survey. If Buyer has any
objection to Survey matters, the same shall be treated for all purposes as
Title Objections within the provisions of this Agreement.
(d) PRELIMINARY TITLE REPORT. Seller agrees to provide to Buyer,
within five (5) business days following the Effective Date, a copy of any
existing title insurance policies which Seller may have in its possession or
control covering the Real Property, together with legible copies of all
exception documents referred to therein. During the Due Diligence Period,
Buyer, at its expense, shall cause an examination of title to the Property to be
made and a preliminary title report to be issued (the "Preliminary Title
Report"), and, prior to the expiration of the Due Diligence Period, shall notify
Seller of any defects in title shown by such examination that Buyer is unwilling
to accept by delivering a pro forma copy of the Preliminary Title Report that
reflects such unacceptable defects in title, which shall be designated as the
Title Objections. Within ten (10) days after such notification, Seller shall
notify Buyer whether Seller is willing to cure such defects. If Seller is
willing to cure such defects, Seller shall act promptly and diligently to cure
such defects at its expense. If any of such defects consist of mortgages, deeds
of trust, construction or mechanics' liens, tax liens or other liens or charges
in a fixed sum or capable of computation as a fixed sum, then, to that extent,
and notwithstanding the foregoing, Seller shall be obligated to pay and
discharge such defects at Closing. For such purposes, Seller may use all or a
portion of the cash to close. If Seller is unable to cure such defects by
Closing, after having attempted to do so diligently and in good faith, Buyer
shall elect (1) to waive such defects and proceed to Closing without any
abatement in the Purchase Price, or (2) to terminate this
9
Agreement. Seller shall not, after the date of this Agreement, subject the
Property to any liens, encumbrances, leases, covenants, conditions,
restrictions, easements or other title matters or seek any zoning changes or
take any other action which may affect or modify the status of title without
Buyer's prior written consent. All title matters revealed by Buyer's title
examination and not objected to by Buyer as provided above shall be deemed
Permitted Title Exceptions. If Buyer shall fail to examine title and notify
Seller of any such Title Objections by the end of the Due Diligence Period,
all such title exceptions (other than those rendering title unmarketable and
those that are to be paid at Closing as provided above) shall be deemed
Permitted Title Exceptions. Notwithstanding the foregoing, Buyer shall not
be required to take title to the Property subject to any matters which may
arise subsequent to the effective date of its examination of title to the
Property made during the Due Diligence Period.
(e) DISCLOSURE SCHEDULE. Seller shall deliver to Buyer within
fourteen (14) days after the Effective Date a disclosure schedule that
accurately and completely identifies and describes (a) all Employment Agreements
(including name of employee, social security number, wage or salary, accrued
vacation benefits, other fringe benefits, etc.), and (b) an updated Golf Club
membership list, setting forth the names of the members of the Golf Club, the
length of their membership, the payment obligations of the members and a summary
of the terms of the memberships (the "Disclosure Schedule").
(f) AUDIT. Seller shall deliver to Buyer final audited financial
statements for the Golf Course for fiscal year 1996 and draft audited financial
statements for the Golf Course for fiscal year 1997 within five (5) days after
the Effective Date. Seller should deliver to Buyer final audited financial
statements for fiscal year 1997 for the Golf Course as soon as they are
available. Such audit shall be performed by nationally-recognized certified
public accountants and shall comply with the filing requirements of GTA, Inc.
with the SEC.
2.3 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid to Seller
at closing as set forth in SECTION 6.3 below.
ARTICLE 3
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
To induce Buyer to enter into this Agreement and to purchase the Property,
and to pay the Purchase Price therefor, Seller hereby makes the following
representations, warranties and covenants with respect to the Property, subject
to the Warranty Disclosure Schedule attached hereto as EXHIBIT J, upon each of
which Seller acknowledges and agrees that Buyer is entitled to rely and has
relied:
3.1 ORGANIZATION AND POWER. Seller is duly formed or organized, validly
existing and in good standing under the laws of
10
the state of its formation and is qualified to transact business in the State
and has all requisite powers and all governmental licenses, authorizations,
consents and approvals to carry on its business as now conducted and to enter
into and perform its obligations under this Agreement and under any document
or instrument required to be executed and delivered by or on behalf of Seller
under this Agreement.
3.2 AUTHORIZATION AND EXECUTION. This Agreement has been, and each of the
agreements and certificates of Seller to be delivered to Buyer at Closing as
provided in Section 5.1 will be, duly authorized by all necessary action on the
part of Seller, has been duly executed and delivered by Seller, constitutes the
valid and binding agreement of Seller and is enforceable against Seller in
accordance with its terms. There is no other person or entity who has an
ownership interest in the Property or whose consent is required in connection
with Seller's performance of its obligations under this Agreement. All action
required pursuant to this Agreement necessary to effectuate the transactions
contemplated herein has been, or will at Closing be, taken promptly and in good
faith by Seller and its representatives and agents.
3.3 NONCONTRAVENTION. The execution and delivery of, and the performance
by Seller of its obligations under, this Agreement do not and will not
contravene, or constitute a default under, any provision of applicable law or
regulation, Seller's Organizational Documents or any agreement, judgment,
injunction, order, decree or other instrument binding upon Seller, or result in
the creation of any lien or other encumbrance on any asset of Seller. There are
no outstanding agreements (written or oral) pursuant to which Seller (or a
representative of Seller) has agreed to contribute or has granted an option or
right of first refusal to purchase the Property or any part thereof. Other than
the rights of tenants, as tenants only, under any leases of any portion of the
Property (copies of which have been provided to Buyer by Seller), there are no
purchase contracts, options or other agreements of any kind, written or oral,
recorded or unrecorded, whereby any person or entity other than Seller will have
acquired or will have any basis to assert any right, title or interest in, or
right to possession, use, enjoyment or proceeds of, all or any portion of the
Property. There are no rights, subscriptions, warrants, options, conversion
rights or agreements or any kind outstanding to purchase or to otherwise acquire
any interest or profit participation of any kind in the Property or any part
thereof.
3.4 NO SPECIAL TAXES. Seller has no knowledge of, nor has it received any
notice of, any special taxes or assessments relating to the Property or any part
thereof, including taxes relating to the business of the Property, or any
planned public improvements that may result in a special tax or assessment
against the Property, that are not otherwise disclosed in the Preliminary Title
Report. To the best of Seller's knowledge, there is not any proposed increase
in the assessed valuation of the Real Property
11
for tax purposes (except as may relate to the transfer contemplated by this
Agreement).
3.5 COMPLIANCE WITH EXISTING LAWS. Seller possesses all
Authorizations, each of which is valid and in full force and effect, and no
provision, condition or limitation of any of the Authorizations has been
breached or violated. Seller has not misrepresented or failed to disclose any
relevant fact in obtaining all Authorizations, and Seller has no knowledge of
any change in the circumstances under which any of those Authorizations were
obtained that result in their termination, suspension, modification or
limitation. Seller has not taken any action (or failed to take any action),
the omission of which would result in the revocation of any of the
Authorizations. Seller has no knowledge, nor has it received notice within
the past three years, of any existing or threatened violation of any
provision of any applicable building, zoning, subdivision, environmental or
other governmental ordinance, resolution, statute, rule, order or regulation,
including but not limited to those of environmental agencies or insurance
boards of underwriters, with respect to the ownership, operation, use,
maintenance or condition of the Property or any part thereof, or requiring
any repairs or alterations other than those that have been made prior to the
Effective Date.
3.6 REAL PROPERTY. To the best of Seller's knowledge, (i) the
Improvements conform in all respects to all legal requirements, (ii) all
easements necessary or appropriate for the use or operation of the Property have
been obtained, (iii) all contractors and subcontractors retained by Seller who
have performed work on or supplied materials to the Property have been fully
paid, and all materials used at or on the Property have been fully paid for,
(iv) the Improvements have been completed in all material respects in a
workmanlike manner of first-class quality, and (v) all equipment necessary or
appropriate for the use or operation of the Property has been installed and is
presently operative in good working order. Seller has not received any written
notice which is still in effect that there is, and, to the best of Seller's
knowledge, there does not exist, any violation of a condition or agreement
contained in any easement, restrictive covenant or any similar instrument or
agreement affecting the Real Property, or any portion thereof.
3.7 PERSONAL PROPERTY. All of the Tangible Personal Property and
Intangible Personal Property being conveyed by Seller to Buyer is free and clear
of all liens and encumbrances and will be so on the Closing Date, including
without limitation seventy-two (72) EZ-GO golf carts and those other items of
Tangible Personal Property which are subject to equipment leases, such items
being identified by a "**" on EXHIBIT C attached hereto, and Seller has good,
merchantable title thereto and the right to convey same in accordance with the
terms of this Agreement.
3.8 OPERATING AGREEMENTS. Each of the Operating Agreements may be
terminated upon not more than thirty (30) days prior written
12
notice and without the payment of any penalty, fee, premium or other amount.
Seller has performed all of its obligations under each of the Operating
Agreements and no fact or circumstance has occurred which, by itself or with
the passage of time or the giving of notice or both, would constitute a
default under any of the Operating Agreements. Seller shall not enter into
any new Operating Agreements, supply contract, vending or service contract or
other agreements with respect to the Property, nor shall Seller enter into
any agreements modifying the Operating Agreements, unless (a) any such
agreement or modification will not bind Buyer or the Property after the
Closing Date, or (b) Seller has obtained Buyer's prior written consent to
such agreement or modification. Seller acknowledges that Buyer may not
assume any of the Operating Agreements and none of the Operating Agreements
will be binding on Buyer or the Property after Closing.
3.9 WARRANTIES AND GUARANTIES. Seller shall not before or after Closing,
release or modify any warranties or guarantees, if any, of manufacturers,
suppliers and installers relating to the Improvements and the Personal Property
or any part thereof, except with the prior written consent of Buyer.
3.10 INSURANCE. All of Seller's insurance policies are valid and in full
force and effect, all premiums for such policies were paid when due and premiums
due as of the Closing Date for such policies (and any replacements thereof)
shall be paid by Seller on or before the due date therefor. Seller shall pay
all premiums on, and shall not cancel or voluntarily allow to expire, any of
Seller's insurance policies unless such policy is replaced, without any lapse of
coverage, by another policy or policies providing coverage at least as extensive
as the policy or policies being replaced. Seller has not received any notice
from any insurance company of any defect or inadequacies in the Property to any
part thereof which would adversely affect the insurability of the Property, or
which would increase the cost of insurance beyond that which would ordinarily
and customarily be charged for similar properties in the vicinity of the Real
Property. The Property is fully insured in accordance with prudent and customary
practice.
3.11 CONDEMNATION PROCEEDINGS; ROADWAYS. Seller has received no notice of
any condemnation or eminent domain proceeding pending or threatened against the
Property or any part thereof. Seller has no knowledge of any change or proposed
change in the route, grade or width of, or otherwise affecting, any street or
road adjacent to or serving the Real Property. To the best of Seller's
knowledge, no fact or condition exists which would result in the termination or
material impairment of access to the Real Property from adjoining public or
private streets or ways or which could result in discontinuation of presently
available or otherwise necessary sewer, water, electric, gas, telephone or other
utilities or services.
3.12 LITIGATION. Except as disclosed in writing to Seller, there is no
action, suit or proceeding pending or known to be
13
threatened against or affecting Seller or any of its properties in any court,
before any arbitrator or before or by any Governmental Body which (a) in any
manner raises any question affecting the validity or enforceability of this
Agreement or any other agreement or instrument to which Seller is a party or
by which it is bound and that is or is to be used in connection with, or is
contemplated by, this Agreement, (b) could materially and adversely affect
the business, financial position or results of operations of Seller, (c)
could materially and adversely affect the ability of Seller to perform its
obligations under this Agreement, or under any document to be delivered
pursuant hereto, (d) could create a lien on the Property, any part thereof or
any interest therein, (e) the subject matter of which concerns any past or
present employee of Seller or its managing agent, or (f) could otherwise
adversely materially affect the Property, any part thereof or any interest
therein or the use, operation, condition or occupancy thereof.
3.13 LABOR DISPUTES AND AGREEMENTS. There are no labor disputes pending
or, to the best of Seller's knowledge, threatened as to the operation or
maintenance of the Property or any part thereof. Seller is not a party to any
union or other collective bargaining agreement with employees employed in
connection with the ownership, operation or maintenance of the Property. Seller
is not a party to any employment contracts or agreements, other than the
Employment Agreements, and neither Seller nor its managing agent will, between
the Effective Date and the Closing Date, enter into any new employment contracts
or agreements, amend any existing Employment Agreement, except with the prior
written consent of Buyer. Seller acknowledges that Buyer will not assume any of
the Employment Agreements and Seller has complied with and shall be responsible
for compliance with the WARN Act and any other applicable employment-related
laws or ordinances. Seller has complied with the requirements of the federal
Immigration and Reform Control Act respecting the employment of undocumented
workers.
3.14 FINANCIAL INFORMATION. To the best of Seller's knowledge, all of
Seller's financial information, including, without limitation, all books and
records and financial statements, is correct and complete in all material
respects and presents accurately the results of the operations of the Property
for the periods indicated.
3.15 ORGANIZATIONAL DOCUMENTS. Seller's Organizational Documents are in
full force and effect and have not been modified or supplemented, and no fact or
circumstance has occurred that, by itself or with the giving of notice or the
passage of time or both, would constitute a default thereunder.
3.16 OPERATION OF PROPERTY. Seller covenants, that between the Effective
Date and the Closing Date, it will (a) operate the Property in the usual,
regular and ordinary manner consistent with Seller's prior practice, (b)
maintain its books of account and records in the usual, regular and ordinary
manner, in accordance
14
with sound accounting principles applied on a basis consistent with the basis
used in keeping its books in prior years, and (c) use all reasonable efforts
to preserve intact its present business organization, keep available the
services of its present officers, partners and employees and preserve its
relationships with suppliers and others having business dealings with it.
Except as otherwise permitted hereby, from the Effective Date until Closing,
Seller shall not take any action or fail to take action the result of which
would have a material adverse effect on the Property or Buyer's ability to
continue the operation thereof after the Closing Date in substantially the
same manner as presently conducted, or which would cause any of the
representations and warranties contained in this Article III to be untrue as
of Closing.
From and after the execution and delivery of this Agreement, Seller shall
not, other than in the ordinary course of business, (a) make any agreements
which shall be binding upon Buyer with respect to the Property, or (b) reduce or
cause to be reduced any green fees, membership fees, tournament fees, driving
range fees or any other charges over which Seller has operational control.
Between the Effective Date and the Closing Date, if and to the extent requested
by Buyer, Seller shall deliver to Buyer such periodic information with respect
to the above information as Seller customarily keeps internally for its own use.
Seller agrees that it will operate the Property in accordance with the
provisions of this Section 3.16 between the Effective Date and the Closing Date.
3.17 BANKRUPTCY. No Act of Bankruptcy has occurred with respect to Seller.
3.18 LAND USE. The current use and occupancy of the Property for golfing
and all other related purposes (including, without limitation, the sale of
merchandise and food and beverages) are permitted as a matter of right as a
principal use under all laws and regulations applicable thereto without the
necessity of any special use permit, special exception or other special permit,
permission or consent and Seller is not aware of any proposal to change or
restrict such use. Seller has all necessary certificates of occupancy or
completion to operate the Property as presently operated and, to Seller's
knowledge, there are no unfulfilled conditions respecting the development of the
Property.
3.19 HAZARDOUS SUBSTANCES. Except as may be disclosed in the Phase I
environmental assessment report for the Property, to the best of Seller's
knowledge, (i) no Hazardous Substances are or have been located on (except in
typical amounts used in the ordinary course for the operation or maintenance of
the Property by Seller in accordance with all applicable laws), in or under the
Property or have been released into the environment, or discharged, placed or
disposed of at, on or under the Property; (ii) no underground storage tanks are,
or have been, located at the Property; (ii) the Property has never been used to
store, treat or dispose of Hazardous Substances (except in typical amounts used
in the
15
ordinary course for the operation or maintenance of the Property by Seller in
accordance with all applicable laws); and (iv) the Property and its prior
uses comply with, and at all times have complied with all applicable
Environmental Laws or any other governmental law, regulation or requirement
relating to environmental and occupational health and safety matters and
Hazardous Substances. To the best of Seller's knowledge, there currently
exist no facts or circumstances that could reasonably be expected to give
rise to a material non-compliance with Environmental Laws, material
environmental liability or material Environmental Claim.
3.20 UTILITIES. All Utilities required for the operation of the Property
either enter the Property through adjoining streets, or they pass through
adjoining land and do so in accordance with valid public easements or private
easements, and all of the Utilities located on the Property are installed and
are in good working order and repair and operating as necessary for the
operation of the Property and all installation and connection charges therefor
have been paid in full. The sewage, sanitation, plumbing, water retention and
detention, refuse disposal and utility facilities in and on and/or servicing the
Real Property are adequate to service the Real Property as it is currently being
used and the Real Property's utilization of such facilities is in compliance
with all applicable governmental and environmental protection authorities' laws,
rules, regulations and requirements.
3.21 CURB CUTS. All curb cut street opening permits or licenses required
for vehicular access to and from the Property from any adjoining public street
have been obtained and paid for and are in full force and effect.
3.22 LEASED PROPERTY. The Personal Property identified on EXHIBIT C is all
of the leased property at the Property, and such exhibit reflects the date of
each such lease, the name of the lessor, the name of the lessee, the term of
each such lease, the lease payment terms and a description of the property
demised by each such lease. All leases of such property are in good standing
and free from default.
3.23 SUFFICIENCY OF CERTAIN ITEMS. The Property, together with the Current
Assets, contain an amount of equipment and supplies, which is sufficient to
efficiently operate and maintain the Property in the manner in which it is
normally operated and maintained in the season of the year in which the Closing
occurs.
3.24 SURVIVAL OF REPRESENTATIONS. Each of the representations, warranties
and covenants contained in this Article III are intended for the benefit of
Buyer. Each of said representations, warranties and covenants shall survive the
Closing for a period of one (1) year, at which time they shall expire unless
prior to such time Buyer has made a formal, written claim alleging a breach of
one or more of the representations, warranties or covenants. No investigation,
audit, inspection, review or the
16
like conducted by or on behalf of Buyer shall be deemed to terminate the
effect of any such representations, warranties and covenants, it being
understood that Buyer has the right to rely thereon and that each such
representation, warranty and covenant constitutes a material inducement to
Buyer to execute this Agreement and to close the transaction contemplated
hereby and to pay the Purchase Price to Seller. Notwithstanding the
foregoing, Seller shall have no liability with respect to any of the
foregoing representations and warranties if, prior to the Closing, Buyer
obtains actual knowledge (from whatever source, including, without
limitation, as a result of Buyer's due diligence tests, investigations and
inspections of the Property, or disclosure by Seller or Seller's agents and
employees) that contradicts any of such foregoing representations and
warranties, or renders any of such foregoing representations and warranties
materially untrue or incorrect, and Buyer nevertheless consummates the
transaction contemplated by this Agreement.
ARTICLE 4
BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
To induce Seller to enter into this Agreement and to sell the Property,
Buyer hereby makes the following representations, warranties and covenants, upon
each of which Buyer acknowledges and agrees that Seller is entitled to rely and
has relied:
4.1 ORGANIZATION AND POWER. Buyer is duly formed or organized, validly
existing and in good standing under the laws of the state of its formation and
has all governmental licenses, Authorizations, consents and approvals required
to carry on its business as now conducted and to enter into and perform its
obligations under this Agreement and any document or instrument required to be
executed and delivered on behalf of Buyer under this Agreement.
4.2 NONCONTRAVENTION. The execution and delivery of this Agreement and
the performance by Buyer of its obligations hereunder do not and will not
contravene, or constitute a default under, any provisions of applicable law or
regulation, or any agreement, judgment, injunction, order, decree or other
instrument binding upon Buyer or result in the creation of any lien or other
encumbrance on any asset of Buyer.
4.3 LITIGATION. There is no action, suit or proceeding, pending or known
to be threatened, against or affecting Buyer in any court or before any
arbitrator or before any administrative panel or otherwise that (a) could
materially and adversely affect the business, financial position or results of
operations of Buyer, or (b) could materially and adversely affect the ability of
Buyer to perform its obligations under this Agreement, or under any document to
be delivered pursuant hereto.
4.4 BANKRUPTCY. No Act of Bankruptcy has occurred with respect to Buyer.
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4.5 AUTHORIZATION AND EXECUTION. This Agreement has been, and each of the
agreements and certificates of buyer to be delivered to Seller at Closing as
provided in Section 5.2 will be, duly authorized by all necessary action on the
part of Buyer, has been duly executed and delivered by Buyer, constitutes the
valid and binding agreement of Buyer and is enforceable against Buyer in
accordance with its terms. All action required pursuant to this Agreement
necessary to effectuate the transactions contemplated herein has been, or will
at Closing be, taken promptly and in good faith by Buyer and its representatives
and agents.
ARTICLE 5
CONDITIONS AND ADDITIONAL COVENANTS
5.1 AS TO BUYER'S OBLIGATIONS. Buyer's obligations under this Agreement
are subject to the satisfaction of the following conditions precedent and the
compliance by Seller with the following covenants:
(a) SELLER'S DELIVERIES. Seller shall have delivered to or for the
benefit of Buyer, as the case may be, on or before the Closing Date, all of the
documents and other information required of Seller pursuant to this Agreement.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS. All of Seller's
representations and warranties made in this Agreement shall be true and correct
as of the Effective Date and as of the Closing Date as if then made, there shall
have occurred no material adverse change in the condition or financial results
of the operation of the Property since the Effective Date. Seller shall have
performed all of its covenants and other obligations under this Agreement and
Seller shall have executed and delivered to Buyer on the Closing Date a
certificate dated as of the Closing Date to the foregoing effect in the form of
EXHIBIT K attached hereto.
(c) TITLE INSURANCE. The Title Company shall have delivered the
Owner's Title Policy, subject only to the Permitted Title Exceptions.
(d) TITLE TO PROPERTY. Buyer shall have determined that Seller is
the sole owner of good and marketable fee simple title (or ground lease
interest, as applicable ) to the Real Property and to the Tangible Personal
Property, free and clear of all liens, encumbrances, restrictions, conditions
and agreements except for, with regard to the Real Property only, Permitted
Title Exceptions. Seller shall not have taken any action or permitted or
suffered any action to be taken by others from the Effective Date and through
and including the Closing Date that would adversely affect the status of title
to the Real Property or to the Tangible Personal Property.
(e) CONDITION OF PROPERTY. The Real Property and the Tangible
Personal Property (including but not limited to the golf
18
course, driving range, putting greens, mechanical systems, plumbing,
electrical wiring, appliances, fixtures, heating, air conditioning and
ventilating equipment, elevators, boilers, equipment, roofs, structural
members and furnaces) shall be in the same condition at Closing as they are
as of the Effective Date, reasonable wear and tear excepted, and in
connection therewith, Inventory levels will increase or decrease in the
ordinary course of business. Prior to Closing, except in the ordinary course
of business, Seller shall not have materially changed the overall quality or
quantity of maintenance and upkeep services heretofore provided to the Real
Property and the Tangible Personal Property. Seller shall not have removed
or caused or permitted to be removed any part or portion of the Real Property
or the Tangible Personal Property unless the same is replaced, prior to
Closing, with similar items of at least equal quality and acceptable to
Buyer.
(f) UTILITIES. All of the Utilities shall be installed in and
operating at the Property, and service shall be available for the removal of
garbage and other waste from the Property. Between the Effective Date and the
Closing Date, Seller shall have received no notice of any material increase or
proposed material increase in the rates charged for the Utilities from the rates
in effect as of the Effective Date.
Each of the conditions and additional covenants contained in this Section are
intended for the benefit of Buyer and may be waived in whole or in part by
Buyer, but only by an instrument in writing signed by Buyer.
5.2 AS TO SELLER'S OBLIGATIONS. Seller's obligations under this are
subject to the satisfaction of the following conditions precedent and the
compliance by Buyer with the following covenants:
(a) BUYER'S DELIVERIES. Buyer shall have delivered to or for the
benefit of Seller, on or before the Closing Date, all of the documents and
payments required of Buyer pursuant to this Agreement.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS. All of Buyer's
representations and warranties made in this Agreement shall be true and correct
as of the Effective Date and as of the Closing Date as if then made and Buyer
shall have performed all of its covenants and other obligations under this
Agreement.
Each of the conditions and additional covenants contained in this Section are
intended for the benefit of Seller and may be waived in whole or in part, by
Seller, but only by an instrument in writing signed by Seller.
ARTICLE 6
CLOSING
6.1 CLOSING. Closing shall be held at the offices of Escrow Agent on
March 9, 1998; provided, however, that the Closing Date
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may be extended for an additional thirty (30) days by Buyer, at its sole
discretion by providing written notice to Seller prior to March 9, 1998. If
the Closing Date falls on a Saturday, Sunday or other legal holiday, the
Closing shall take place on the first following business day thereafter.
Possession of the Property shall be delivered to Buyer at Closing, subject
only to Permitted Title Exceptions.
6.2 SELLER'S DELIVERIES. At Closing, Seller shall deliver to Buyer all of
the following instruments, each of which shall have been duly executed and,
where applicable, acknowledged and/or sworn on behalf of Seller and shall be
dated as of the Closing Date.
(a) SELLER'S CERTIFICATE. The certificate required by Section
5.1(b).
(b) THE DEED.
(c) THE ▇▇▇▇ OF SALE - PERSONAL PROPERTY
(d) EVIDENCE OF TITLE. Evidence of title acceptable to Buyer for any
vehicle owned by Seller and used in connection with the Property.
(e) TITLE REQUIREMENTS. Such agreements, affidavits or other
documents as may be required by the Title Company to issue the Owner's Title
Policy including those endorsements required by Buyer, and to eliminate the
standard exceptions as exceptions thereto, so that the Owner's Title Policy will
be subject only to the Permitted Title Exceptions, including, without
limitation, an appropriate mechanics' and construction lien, possession and gap
affidavit.
(f) THE FIRPTA CERTIFICATE.
(g) WARRANTIES. To the extent available, true, correct and complete
copies of all warranties, if any, of manufacturers, suppliers and installers
possessed by Seller and relating to the Property, or any part thereof.
(h) ORGANIZATIONAL DOCUMENTS. Certified copies of Seller's
Organizational Documents.
(i) BOARD RESOLUTIONS. Appropriate resolutions of the board of
directors or partners, as the case may be, of Seller, certified by the secretary
or an assistant secretary of Seller or a general partner, as the case may be,
together with all other necessary approvals and consents of Seller, authorizing
(i) the execution on behalf of Seller of this Agreement and the documents to be
executed and delivered by Seller prior to, at or otherwise in connection with
Closing, and (ii) the performance by Seller of its obligations under this
Agreement and under such documents, or appropriate resolutions of the partners
of Seller, as the case may be.
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(j) CERTIFICATE OF OCCUPANCY. A valid, final (except to the extent
continued compliance with local laws is required) certificate of occupancy for
the Real Property and Improvements, issued by the appropriate Governmental Body
allowing for the use of the Real Property as a golf course and permitting the
continued operation of the improvements as presently operated.
(k) EVIDENCE OF BULK SALES COMPLIANCE. Such proof as Buyer may
reasonably require with respect to Seller's compliance with, or exemption from,
the bulk sales laws or similar statutes.
(l) INSURANCE POLICIES. Copy of each and every existing insurance
policy covering the Property and certificates evidencing such coverage.
(m) IMPROVEMENT PLANS. To the extent available, a set or copies of
the plans and specifications for the Improvements.
(n) COMMUNICATION; ADDRESSES. A written instrument executed by
Seller, conveying and transferring to Buyer all of Seller's right, title and
interest in any telephone numbers, fax numbers or Internet or electronic mail
addresses (if applicable) relating solely to the Property, and, if Seller
maintains a post office box solely with respect to the Property, conveying to
Buyer all of its interest in and to such post office box and the number
associated therewith, so as to assure a continuity in operation and
communication.
(o) TAX BILLS. All current real estate and personal property tax
bills in Seller's possession or under its control.
(p) SURVEYS. All surveys and plot plans of the Real Property in
possession of or in the control of Seller.
(q) TOURNAMENT SCHEDULE. A complete list of all scheduled
tournaments, functions and the like, in reasonable detail.
(r) ACCOUNTS RECEIVABLE. A list of Seller's outstanding accounts
receivable as of midnight on the date prior to the Closing, specifying the name
of each account and the amount due Seller.
(s) PAYOFF STATEMENT. A payoff statement prepared by any holder of
Mortgage Indebtedness setting forth the amount, including accrued interest and
prepayment penalties, to pay off the Mortgage Indebtedness.
(t) TENANT NOTICES. Written notice executed by Seller notifying all
interested parties, including all tenants under any leases of the Property, that
the Property has been conveyed to Buyer and directing that all payments,
inquiries and the like be forwarded to Buyer at the address to be provided by
Buyer.
21
(u) MISCELLANEOUS. Any other document or instrument reasonably
requested by Buyer with respect to the Property.
6.3 BUYER'S DELIVERIES. At Closing, Buyer shall pay or deliver to Seller
the following:
(a) PURCHASE PRICE. A portion of the Purchase Price equal to
$7,300,000.00 shall be remitted by Buyer to Seller by federal funds wire to an
account designated by Seller.
(b) PROMISSORY NOTE. A non-interest bearing Promissory Note in favor
of Seller, the form and content of which shall be mutually agreed to by Buyer
and Seller, in the amount of $200,000.00 in which $100,000.00 shall be paid to
Seller on each of the first and second anniversary dates of the Closing Date.
(c) MISCELLANEOUS. Any other document or instrument reasonably
requested by Seller relating to the transaction contemplated hereby.
6.4 MUTUAL DELIVERIES. At Closing, Buyer and Seller shall mutually
execute and deliver each to the other:
(a) CLOSING STATEMENTS. A closing statement for Seller and a closing
statement for Buyer (collectively, the "Closing Statements") reflecting the
Purchase Price and the adjustments and prorations required under this Agreement
and the allocation of income and expenses required hereby.
(b) LIQUOR LICENSE TRANSFER DOCUMENTS. Such other documents,
instruments and undertakings as may be required by the liquor authorities of the
State or of any county or municipality or Governmental Body having jurisdiction
with respect to the transfer or issue of any liquor licenses or alcoholic
beverage licenses or permits for the Property, to the extent not theretofore
executed and delivered.
(c) MISCELLANEOUS. Such other and further documents, papers and
instruments as may be reasonably required by the parties hereto or their
respective counsel.
6.5 CLOSING COSTS. Except as is otherwise provided in this Agreement,
each party hereto shall pay its own legal fees and expenses, and Seller shall
pay for the cost of any audit required by Buyer with respect to the Property.
All filing fees for the Deed and the real estate transfer, recording or other
similar taxes due including any deed stamps with respect to the transfer of
title shall be shared equally by Seller and Buyer. Seller shall pay for
preparation of the documents to be delivered by Seller under this Agreement, and
for the releases of any deeds of trust, mortgages and other financing
encumbering the Property and for any costs associated with any corrective
instruments, and for the cost of any due diligence reports and surveys prepared
by or for Buyer with
22
respect to the Property. All charges for title insurance premiums shall be
paid by Buyer.
6.6 INCOME AND EXPENSE ALLOCATIONS. All income and expenses with respect
to the Property, and applicable to the period of time before and after Closing,
determined in accordance with generally accepted accounting principles
consistently applied, shall be allocated between Seller and Buyer (or, at
Buyer's election, between Seller and the lessee under the Golf Course Lease to
the extent such income or expenses will be payable by or attributable to such
lessee). Seller shall be entitled to all income and shall be responsible for
all expenses for the period of time up to but not including the Closing Date,
and Buyer shall be entitled to all income and shall be responsible for all
expenses for the period of time from, after and including the Closing Date.
Such adjustments shall be shown on the Closing Statements (with such supporting
documentation as the parties hereto may require being attached as exhibits to
the Closing Statements) and shall increase or decrease (as the case may be) the
Purchase Price payable by Buyer. Without limiting the generality of the
foregoing, the following items of income and expense shall be prorated as of the
Closing Date:
(a) RENTS AND FEES. Current and prepaid rents or fees, including,
without limitation, prepaid Golf Club membership fees, function receipts and
other reservation receipts.
(b) TAXES. Real estate and personal property taxes.
(c) UTILITIES. Utility charges (including but not limited to charges
for water, sewer and electricity).
(d) FUEL. Value of fuel stored on the Property at the price paid for
such fuel by Seller, including any taxes.
(e) MUNICIPAL IMPROVEMENT LIENS. Municipal improvement liens where
the work has physically commenced (certified liens) shall be paid by Seller at
Closing. Municipal improvement liens which have been authorized, but where the
work has not commenced (pending liens) shall be assumed by Buyer.
(f) LICENSE AND PERMIT FEES. License and permit fees, where
transferable.
(g) INCOME AND EXPENSES. All other income and expenses of the
Property, including, but not limited to such things as restaurant and snack bar
income and expenses and the like.
(h) MISCELLANEOUS PRORATIONS. Such other items as are usually and
customarily prorated between Buyers and Sellers of commercial properties in the
area in which the Property is located shall be prorated as of the Closing Date.
23
6.7 SALES TAXES. Seller shall be required to pay all sales taxes and like
impositions arising from the ownership and operation of the Property currently
through the Closing Date.
6.8 POST-CLOSING ADJUSTMENTS.
(a) ACCOUNTS RECEIVABLE. Buyer shall use commercially reasonable
efforts to collect any accounts receivable or revenues accrued prior to the
Closing Date for Seller, and if Buyer collects same, such amounts (net of
Buyer's cost to collect same) will be promptly remitted to Seller in the form
received. Subsequent to the Closing Date, Seller may continue to pursue
collection of accounts receivable and revenues accrued prior to the Closing Date
and Buyer agrees to cooperate with Seller in this regard. Buyer shall receive a
credit at Closing for the amount of any security deposits held by Seller under
any lease of any portion of the Property that is being assigned to Buyer in
accordance herewith.
(b) AVAILABILITY OF BILLS. If accurate allocations and prorations
cannot be made at Closing because current bills are not obtainable (as, for
example, in the case of utility bills and/or real estate or personal property
taxes), the parties shall allocate such income or expenses at Closing on the
best available information, subject to adjustment outside of escrow upon receipt
of the final ▇▇▇▇ or the evidence of the applicable income or expense. Any
income received or expense incurred by Seller or Buyer with respect to the
Property after the Closing Date shall be promptly allocated in the manner
described herein and the parties shall promptly pay or reimburse any amount due.
Seller shall pay at Closing all accrued special assessments and taxes applicable
to the Property.
(c) ACCOUNTS PAYABLE ON INVENTORY. Buyer agrees to assume payment of
accounts payable on all Inventory ordered but not yet received as of the Closing
Date, provided that such orders were made in the ordinary course of business.
ARTICLE 7
GENERAL PROVISIONS
7.1 CONDEMNATION. In the event of any actual or threatened taking,
pursuant to the power of eminent domain, of all or any portion (except for an
immaterial portion) of the Real Property, or any proposed sale in lieu thereof,
Seller shall give written notice thereof to Buyer promptly after Seller learns
or receives notice thereof. If all or any part of the Real Property is, or is
to be, so condemned or sold, Buyer shall have the right to terminate this
Agreement pursuant to Section 8.3. If Buyer elects not to terminate this
Agreement, all proceeds, awards and other payments arising out of such
condemnation or sale (actual or threatened) shall be paid or assigned, as
applicable, to Buyer at Closing. Seller will not settle or compromise any such
proceeding without Buyer's prior written consent.
24
7.2 RISK OF LOSS. The risk of any loss or damage to the Property prior to
the Closing Date shall remain upon Seller. If any such loss or damage occurs
prior to Closing, Buyer shall have the right to terminate this Agreement
pursuant to Section 8.3. If Buyer elects not to terminate this Agreement, all
insurance proceeds and rights to proceeds (except for proceeds or rights to
proceeds from any business interruption insurance maintained by Seller that are
applicable to the period prior to Closing) arising out of such loss or damage
shall be paid or assigned, as applicable, to Buyer at Closing.
7.3 REAL ESTATE BROKER. Except for a broker or finder who may have been
engaged by Seller and for whom Seller accepts sole financial responsibility, and
except for any broker or finder who may have been engaged by Buyer and for whom
Buyer accepts sole financial responsibility, there is no real estate broker
involved in this transaction. Buyer warrants and represents to Seller that
Buyer has not dealt with any other real estate broker in connection with this
transaction, nor has Buyer been introduced to the Property or to Seller by any
other real estate broker, and Buyer shall indemnify Seller and save and hold
Seller harmless from and against any claims, suits, demands or liabilities of
any kind or nature whatsoever arising on account of the claim of any person,
firm, or corporation to a real estate brokerage commission or a finder's fee as
a result of having dealt with Buyer, or as a result of having introduced Buyer
to Seller or to the Property. In like manner, Seller warrants and represents to
Buyer that Seller has not dealt with any real estate broker in connection with
this transaction, nor has Seller been introduced to Buyer by any real estate
broker, and Seller shall indemnify Buyer and save and hold harmless from and
against any claims, suits, demands or liabilities of any kind or nature
whatsoever arising on account of the claim of any person, firm or corporation to
a real estate brokerage commission or a finder's fee as a result of having dealt
with Seller in connection with this transaction. Buyer represents that ▇▇▇▇▇ ▇.
▇▇▇▇, an officer of the Buyer, is a licensed California real estate broker but
is not acting as a broker in relation to this Agreement.
7.4 CONFIDENTIALITY. Except as hereinafter provided, from and after the
execution of this Agreement, Buyer and Seller shall keep the terms, conditions
and provisions of this Agreement confidential and neither shall make any public
announcements hereof unless the other first approves of same in writing, nor
shall either disclose the terms, conditions and provisions hereof, except to
their respective attorneys, accountants, engineers, surveyors, financiers and
bankers. Notwithstanding the foregoing, it is acknowledged that the Company is
a public company and will make a public announcement (which announcement shall
not be made earlier than the Closing Date without prior written notice to
Seller) concerning this transaction and that the Company anticipates that it
will seek to sell shares of its common stock and other securities (collectively,
the "Securities") to the general public pursuant to a public offering and that
in connection therewith,
25
Buyer will have the absolute right to market the Securities and prepare and
file all necessary or required registration statements, and other papers,
documents and instruments necessary or required in Buyer's judgment and that
of its attorneys and underwriters to file a registration statement with
respect to the Securities with the SEC and/or similar state authorities and
to cause same to become effective and to disclose therein and thus to its
underwriters, to the SEC and/or to similar state authorities and to the
public all of the terms, conditions and provisions of this Agreement. The
obligations of this Section 7.4 shall survive any termination of this
Agreement.
7.5 LIQUOR LICENSES. Buyer acknowledges that Seller has informed Buyer
that Shelby County, Kentucky, the county in which the Property is located, is a
"dry" county and that consequently there are no liquor licenses or alcoholic
beverage licenses held by Seller, or any Affiliates of Seller, in connection
with the Property.
ARTICLE 8
LIABILITY OF BUYER; INDEMNIFICATION BY SELLER;
TERMINATION RIGHTS
8.1 LIABILITY OF BUYER. Except for any obligation expressly assumed or
agreed to be assumed by Buyer under this Agreement, Buyer does not assume any
obligation of Seller or any liability for claims arising out of any occurrence
prior to Closing.
8.2 INDEMNIFICATION BY SELLER. Seller hereby indemnifies and holds Buyer
harmless from and against any and all claims, costs, penalties, damages, losses,
liabilities and expenses (including reasonable attorneys' fees) that may at any
time be incurred by Buyer, whether before or after Closing, as a result of any
breach by Seller of any of its representations, warranties, covenants or
obligations set forth herein or in any other document delivered by Seller
pursuant hereto, for a period of one (1) year following the Closing, provided
written notice to such breach is given to Seller prior to expiration of such one
(1) year period. The provisions of this section shall survive termination of
this Agreement by Buyer or Seller.
8.3 TERMINATION BY BUYER. If any condition set forth herein for the
benefit of Buyer cannot or will not be satisfied prior to Closing, or upon the
occurrence of any other event that would entitle Buyer to terminate this
Agreement and its obligations under this Agreement, and Seller fails to cure any
such matter within ten (10) business days after notice thereof from Buyer,
Buyer, at its option, may elect either (a) to terminate this Agreement and all
other rights and obligations of Seller and Buyer under this Agreement shall
terminate immediately, or (b) to waive its right to terminate (but without
waiving any breach or default on the part of Seller) and, instead, to proceed to
Closing. If Buyer terminates this Agreement as a consequence of a
misrepresentation or breach of a warranty or covenant by Seller, or a failure by
Seller to perform
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its obligations under this Agreement, then Buyer shall retain all remedies
accruing as a result thereof, including, without limitation, specific
performance.
8.4 TERMINATION BY SELLER. If any condition set forth herein for the
benefit of Seller (other than a default by Buyer) cannot or will not be
satisfied prior to Closing, and Buyer fails to cure any such matter within ten
(10) business days after notice thereof from Seller, Seller may, at its option,
elect either (a) to terminate this Agreement, in which event the rights and
obligations of Seller and Buyer hereunder shall terminate immediately, or (b) to
waive its right to terminate (but without waiving any breach or default on the
part of Buyer), and instead, to proceed to Closing, If, Seller terminates this
Agreement as a consequence of a misrepresentation or breach of warranty or
covenant by Buyer, or a failure by Buyer to perform its obligations under this
Agreement, then Seller shall retain all remedies accruing as a result thereof,
including, without limitation, specific performance.
8.5 COSTS AND ATTORNEY'S FEES. In the event of any litigation or dispute
between the parties arising out of or in any way connected with this Agreement,
resulting in any litigation, arbitration or other form of dispute resolution,
then the prevailing party in such litigation shall be entitled to recover its
costs of prosecuting and/or defending same, including, without limitation,
reasonable attorneys' fees at trial and all appellate levels.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 COMPLETENESS; MODIFICATION. This Agreement constitutes the entire
agreement between the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior discussions, understandings,
agreements and negotiations between the parties hereto. This Agreement may be
modified only by a written instrument duly executed by the parties hereto.
9.2 ASSIGNMENTS. Buyer may assign its rights under this Agreement to an
Affiliate of Buyer without the consent of Seller. Such assignment shall not
release Buyer from its obligations under this Agreement. Buyer may not
otherwise assign its interest herein without the prior written consent of
Seller. Seller may not assign any of its rights pursuant to this Agreement
without the prior written consent of Buyer, which may be withheld in Buyer's
sole and absolute discretion.
9.3 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns.
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9.4 DAYS. If any action is required to be performed, or if any notice,
consent or other communication is given, on a day that is a Saturday or Sunday
or a legal holiday in the jurisdiction in which the action is required to be
performed or in which is located the intended recipient of such notice, consent
or other communication, such performance shall be deemed to be required, and
such notice, consent or other communication shall be deemed to be given, on the
first business day following such Saturday, Sunday or legal holiday. Unless
otherwise specified herein, all references herein to a "day" or "days" shall
refer to calendar days and not business days.
9.5 GOVERNING LAW. This Agreement and all documents referred to herein
shall be governed by and construed and interpreted in accordance with the laws
of the State.
9.6 COUNTERPARTS. To facilitate execution, this Agreement may be executed
in as many counterparts as may be required. It shall not be necessary that the
signature on behalf of both parties hereto appear on each counterpart hereof.
All counterparts hereof shall collectively constitute a single agreement.
9.7 SEVERABILITY. If any term, covenant or condition of this Agreement,
or the application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term, covenant or condition to other persons or circumstances, shall not be
affected thereby, and each term, covenant or condition of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
9.8 COSTS. Regardless of whether Closing occurs under this Agreement, and
except as otherwise expressly provided in this Agreement, each party to this
Agreement shall be responsible for its own costs in connection with this
Agreement and the transactions contemplated hereby, including without
limitation, fees of attorneys, engineers and accountants.
9.9 NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be delivered by hand,
transmitted by facsimile transmission, sent prepaid by Federal Express (or a
comparable overnight delivery service) or sent by the United States mail,
certified, postage prepaid, return receipt requested, at the addresses and with
such copies as on the Summary Sheet or to such other address as the intended
recipient may have specified in a notice to the other party. Any party hereto
may change its address or designate different or other persons or entities to
receive copies by notifying the other party and Escrow Agent in a manner
described in this Section. Any notice, request, demand or other communication
delivered or sent in the manner aforesaid shall be deemed given or made (as the
case may be) when actually delivered to the intended recipient.
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9.10 INCORPORATION BY REFERENCE. All of the exhibits attached hereto are
by this reference incorporated herein and made a part hereof.
9.11 SURVIVAL. Except as expressly provided in Section 3, all of the
representations, warranties, covenants and agreements of Seller and Buyer made
in, or pursuant to, this Agreement shall survive Closing and shall not merge
into the Deed or any other document or instrument executed and delivered in
connection herewith.
9.12 FURTHER ASSURANCES. Seller and Buyer each covenant and agree to sign,
execute and deliver, or cause to be signed, executed and delivered, and to do or
make, or cause to be done or made, upon the written request of the other party,
any and all agreements, instruments, papers, deeds, acts or things,
supplemental, confirmatory or otherwise, as may be reasonably required by either
party hereto for the purpose of or in connection with consummating the
transactions described herein.
9.13 NO PARTNERSHIP. This Agreement does not and shall not be construed to
create a partnership, joint venture or any other relationship between the
parties hereto except the relationship of Seller and Buyer specifically
established hereby.
9.14 CONFIDENTIALITY. Any confidential information delivered by Seller to
Buyer under this Agreement shall be used solely for the purpose of acquiring the
Property and Buyer will keep such information confidential; provided Buyer shall
have the right to provide such information to its consultants and advisors and
to disclose such information as Buyer determines is necessary or appropriate in
connection with any public offering of the Securities. If Buyer does not
acquire the Property, it shall deliver to Seller copies of all proprietary
information delivered to Buyer by Seller. Seller agrees to keep confidential
the terms and conditions of this Agreement provided, Seller shall have the right
to provide such information to its consultants and advisors.
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IN WITNESS WHEREOF, Seller and Buyer have hereunder affixed their
signatures to this Purchase and Sale Agreement, all as of the 28th day of
February, 1998.
"BUYER"
GOLF TRUST OF AMERICA, L.P., A DELAWARE
LIMITED PARTNERSHIP
By: GTA, Inc., a Maryland corporation
Its: General Partner
By: /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Its: President and CEO
---------------------------------
"SELLER"
PERSIMMON RIDGE GOLF CLUB, L.P.,
A DELAWARE LIMITED PARTNERSHIP
By: International Golf Group, Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
30