--------------------------------
PURCHASE AND SALE AGREEMENT
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Seller: Meghan Associates, LLC,
a Limited Liability Company, and Tarpon Woods Restaurant
Corporation
Buyer: GOLF TRUST OF AMERICA, L.P.,
a Delaware limited partnership
Property: Tarpon Woods Golf Course
Purchase
Price: $5,700,000
Effective
Date: August 31, 1997
TABLE OF CONTENTS
PAGE
ARTICLE I - DEFINITIONS; RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . . . 2
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(a) "Act of Bankruptcy" . . . . . . . . . . . . . . . . . . . . . . . . 2
(b) "Authorizations" . . . . . . . . . . . . . . . . . . . . . . . . . 3
(c) "Bill of Sale - Personal Property". . . . . . . . . . . . . . . . . 3
(d) "Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(e) "Closing Date". . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(f) "Closing Statements". . . . . . . . . . . . . . . . . . . . . . . . 3
(g) Intentionally Omitted . . . . . . . . . . . . . . . . . . . . . . . 3
(h) "Deed". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(i) "Disclosure Schedule" . . . . . . . . . . . . . . . . . . . . . . . 4
(l) "Employment Agreements" . . . . . . . . . . . . . . . . . . . . . . 4
(m) "Environmental Claim" . . . . . . . . . . . . . . . . . . . . . . . 4
(n) "Environmental Laws". . . . . . . . . . . . . . . . . . . . . . . . 4
(o) "Escrow Agent". . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(p) "FIRPTA Certificate". . . . . . . . . . . . . . . . . . . . . . . . 5
(q) "Golf Club" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(r) Intentionally Omitted . . . . . . . . . . . . . . . . . . . . . . . 5
(s) "Governmental Body" . . . . . . . . . . . . . . . . . . . . . . . . 5
(t) "Hazardous Substances". . . . . . . . . . . . . . . . . . . . . . . 5
(u) "Improvements". . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(v) "Intangible Personal Property". . . . . . . . . . . . . . . . . . . 5
(w) Intentionally Omitted . . . . . . . . . . . . . . . . . . . . . . . 5
(x) "Land". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(y) "Mortgage Indebtedness" . . . . . . . . . . . . . . . . . . . . . . 6
(z) "Operating Agreements". . . . . . . . . . . . . . . . . . . . . . . 6
(aa) "Owner's Title Policy". . . . . . . . . . . . . . . . . . . . . . . 6
(ab) "Permitted Title Exceptions". . . . . . . . . . . . . . . . . . . . 6
(ac) "Preliminary Title Report". . . . . . . . . . . . . . . . . . . . . 6
(ad) "Property". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(ae) "Purchase Price". . . . . . . . . . . . . . . . . . . . . . . . . . 6
(af) "Real Property" . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(ag) "Restaurant Supplies" . . . . . . . . . . . . . . . . . . . . . . . 6
(ah) "SEC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(ai) "State" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(aj) "Summary Sheet" . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(ak) "Survey". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(al) "Tangible Personal Property". . . . . . . . . . . . . . . . . . . . 7
(am) "Title Company" . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(an) "Title Objections". . . . . . . . . . . . . . . . . . . . . . . . . 7
(ao) "Seller's Organizational Documents" . . . . . . . . . . . . . . . . 7
(ap) "Utilities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(aq) "WARN Act". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.2 Rules of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . 7
(a) Gender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(b) Section References. . . . . . . . . . . . . . . . . . . . . . . . . 7
(c) Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(d) Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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ARTICLE II - PURCHASE AND SALE; PAYMENT OF PURCHASE PRICE. . . . . . . . . . . . . 8
2.1 Purchase and Sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.2 Due Diligence Period . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(a) Site Inspection.. . . . . . . . . . . . . . . . . . . . . . . . . . 8
(b) Inspection of Documents.. . . . . . . . . . . . . . . . . . . . . . 8
(c) Survey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(d) Preliminary Title Report. . . . . . . . . . . . . . . . . . . . . . 9
(e) Disclosure Schedule.. . . . . . . . . . . . . . . . . . . . . . . . 10
(f) UCC Search. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(g) Audit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.3 Payment of Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . 10
(a) Earnest Money Deposit.. . . . . . . . . . . . . . . . . . . . . . . 10
(b) Payment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE III - SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . . . 11
3.1 Organization and Power . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.2 Authorization and Execution. . . . . . . . . . . . . . . . . . . . . . . 11
3.3 Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.4 No Special Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.5 Compliance with Existing Laws. . . . . . . . . . . . . . . . . . . . . . 12
3.6 Real Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.7 Personal Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.8 Operating Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.9 Warranties and Guaranties. . . . . . . . . . . . . . . . . . . . . . . . 14
3.10 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.11 Condemnation Proceedings; Roadways . . . . . . . . . . . . . . . . . . . 14
3.12 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.13 Labor Disputes and Agreements. . . . . . . . . . . . . . . . . . . . . . 15
3.14 Financial Information. . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.15 Organizational Documents . . . . . . . . . . . . . . . . . . . . . . . . 15
3.16 Operation of Property. . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.17 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.18 Land Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.19 Hazardous Substances . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.20 Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.21 Curb Cuts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.22 Leased Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.23 Sufficiency of Certain Items . . . . . . . . . . . . . . . . . . . . . . 17
3.24 Additional Representations and Warranties. . . . . . . . . . . . . . . . 17
3.25 Survival of Representations. . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IV - BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . . . . 18
4.1 Organization and Power.. . . . . . . . . . . . . . . . . . . . . . . . . 18
4.2 Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.3 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.4 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.5 Authorization and Execution. . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE V - CONDITIONS AND ADDITIONAL COVENANTS. . . . . . . . . . . . . . . . . . 19
5.1 As to Buyer's Obligations. . . . . . . . . . . . . . . . . . . . . . . . 19
(a) Seller's Deliveries.. . . . . . . . . . . . . . . . . . . . . . . . 19
(b) Representations, Warranties and Covenants.. . . . . . . . . . . . . 19
(c) Title Insurance.. . . . . . . . . . . . . . . . . . . . . . . . . . 19
(d) Title to Property.. . . . . . . . . . . . . . . . . . . . . . . . . 19
(e) Condition of Property.. . . . . . . . . . . . . . . . . . . . . . . 20
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(f) Utilities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(g) Liquor License. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(h) The Operation Permit. . . . . . . . . . . . . . . . . . . . . . . . 20
5.2 As to Seller's Obligations . . . . . . . . . . . . . . . . . . . . . . . 20
(a) Buyer's Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . 20
(b) Representations, Warranties and Covenants.. . . . . . . . . . . . . 20
ARTICLE VI - CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.1 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.2 Seller's Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(a) Seller's Certificate. . . . . . . . . . . . . . . . . . . . . . . . 21
(b) The Deed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(c) The Bill of Sale - Personal Property. . . . . . . . . . . . . . . . 21
(d) Evidence of Title.. . . . . . . . . . . . . . . . . . . . . . . . . 21
(e) Title Requirements. . . . . . . . . . . . . . . . . . . . . . . . . 21
(f) The FIRPTA Certificate. . . . . . . . . . . . . . . . . . . . . . . 21
(g) Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(h) Organizational Documents. . . . . . . . . . . . . . . . . . . . . . 22
(i) Board Resolutions.. . . . . . . . . . . . . . . . . . . . . . . . . 22
(j) Certificate of Occupancy. . . . . . . . . . . . . . . . . . . . . . 22
(k) Evidence of Bulk Sales Compliance.. . . . . . . . . . . . . . . . . 22
(l) Insurance Policies. . . . . . . . . . . . . . . . . . . . . . . . . 22
(m) Improvement Plans.. . . . . . . . . . . . . . . . . . . . . . . . . 22
(n) Communication; Addresses. . . . . . . . . . . . . . . . . . . . . . 22
(o) Tax Bills.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(p) Surveys.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(q) Tournament Schedule.. . . . . . . . . . . . . . . . . . . . . . . . 22
(r) Accounts Receivable.. . . . . . . . . . . . . . . . . . . . . . . . 23
(s) Payoff Statement. . . . . . . . . . . . . . . . . . . . . . . . . . 23
(t) Tenant Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(u) Miscellaneous.. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.3 Buyer's Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(a) Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(b) Miscellaneous.. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.4 Mutual Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(a) Closing Statements. . . . . . . . . . . . . . . . . . . . . . . . . 23
(b) Liquor License Transfer Documents.. . . . . . . . . . . . . . . . . 23
(c) Miscellaneous.. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.5 Closing Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.6 Income and Expense Allocations . . . . . . . . . . . . . . . . . . . . . 24
(a) Rents and Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(b) Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(c) Utilities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(d) Fuel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(e) Municipal Improvement Liens.. . . . . . . . . . . . . . . . . . . . 24
(f) License and Permit Fees.. . . . . . . . . . . . . . . . . . . . . . 24
(g) Income and Expenses.. . . . . . . . . . . . . . . . . . . . . . . . 25
(h) Miscellaneous Prorations. . . . . . . . . . . . . . . . . . . . . . 25
6.7 Sales Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.8 Post-Closing Adjustments . . . . . . . . . . . . . . . . . . . . . . . . 25
(a) Accounts Receivable.. . . . . . . . . . . . . . . . . . . . . . . . 25
(b) Availability of Bills.. . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE VII - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.1 Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
iii
7.2 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.3 Real Estate Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.4 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.5 Liquor Licenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE VIII - LIABILITY OF BUYER; INDEMNIFICATION BY SELLER;
TERMINATION RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . 27
8.1 Liability of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.2 Indemnification by Seller. . . . . . . . . . . . . . . . . . . . . . . . 28
8.3 Termination by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.4 Termination by Seller. . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.5 Costs and Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE IX -MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . 29
9.1 Completeness; Modification . . . . . . . . . . . . . . . . . . . . . . . 29
9.2 Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.3 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.4 Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.8 Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.9 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.10 Incorporation by Reference . . . . . . . . . . . . . . . . . . . . . . . 30
9.11 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.12 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.13 No Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.14 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
9.15 Like Kind Exchange Treatment . . . . . . . . . . . . . . . . . . . . . . 31
iv
EXHIBITS
Exhibit A - Legal Description of the Land
Exhibit B - Description of Improvements
Exhibit C - Tangible Personal Property
Exhibit C-1 Leases and Installment Agreements
Exhibit C-2 Inventory
Exhibit D - Intangible Personal Property
Exhibit E - Bill of Sale - Personal Property
Exhibit F - Deed
Exhibit G - FIRPTA Affidavit of Seller
Exhibit H - Contracts and Operating Agreements
Exhibit I - Letters from Spring Engineering and the County of Pinellas
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 partnership
Seller: Meghan Associates, LLC, a Limited Liability Company, and Tarpon
Woods Restaurant Corporation, hereafter collectively referred to
Seller as their interests may appear
Effective
Date: August 31, 1997
Golf Course: Tarpon Woods Golf
Purchase
Price: Five Million Seven Hundred Thousand Dollars
($5,700,000)
Notice Address
of Seller: Michael S. Muraco
Tarpon Woods
3001 James Street, 2nd Floor
Syracuse, NY 13206
Notice Address
of Buyer: Golf Trust of America, Inc.
14 North Adger's Wharf
Charleston, South Carolina 29401
Attention: W. Bradley Blair II
cc: David J. Dick
with a
copy to: O'Melveny & Myers LLP
275 Battery Street, Suite 2600
San Francisco, California 94111-3305
Attention: Peter T. Healy, Esq.
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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 Tarpon Woods Golf Courses 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:
I. 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").
1. 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").
2. All items of tangible personal property and fixtures (if any)
owned 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 and supplies, computers, with the exception of the Point of Sale
software, trade fixtures, golf course operation and maintenance equipment (with
the exception of the GMC truck), including mowers with the exception of the
Woods mower, tractors, aerators, sprinklers, sprinkler and irrigation facilities
and valves or rotors, driving range equipment, 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
1
EXHIBIT C, indicating whether such Tangible Personal Property is owned or
leased.
3.1 In addition to the Tangible Personal Property of paragraph 3
above, Buyer shall assume and be responsible for the payment of those leases and
installment agreements set forth in the attached Exhibit C-1 for the period
commencing on the Closing Date.
3.2 In addition to the purchase price as hereinafter set forth,
Buyer shall pay to the Seller for the inventory as set forth on Exhibit C-2.
4. All intangible personal property owned or possessed by Seller and
used in connection with the ownership, operation, 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, tradenames (including
Tarpon Woods), guarantees, Authorizations (as hereinafter defined), general
intangibles, business records, plans and specifications, surveys and title
insurance policies 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 any of the aforesaid rights that Buyer elects not
to acquire (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".)
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 or member 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)
2
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 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) "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.
(c) "BILL OF SALE - PERSONAL PROPERTY" shall mean a bill 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.
(d) "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.
(e) "CLOSING DATE" shall mean the date on which the Closing occurs.
(f) "CLOSING STATEMENTS" shall have the meaning set forth in Section
6.4(a).
(g) Intentionally Omitted
3
(h) "DEED" shall mean a grant deed or special 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 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.
(i) "DISCLOSURE SCHEDULE" shall have the meaning set forth in Section
2.2(e).
(j) "DUE DILIGENCE PERIOD" shall mean the period commencing at 9:00
a.m., California time, on the Effective Date, and continuing through 5:00 p.m.,
California time, on September 30, 1997.
(k) "EARNEST MONEY DEPOSIT" shall mean $250,000, as such amount may
be increased as provided herein.
(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
4
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.
(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) Intentionally Omitted
(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 of 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 Water
Act, 33 U.S.C. 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 seq. (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) Intentionally Omitted
5
(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 on the Property.
(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 the Commitment for Title Insurance dated August
15, 1997, on behalf of Commonwealth Land Title Insurance Company (the"Title
Report"), but excluding Exception Numbers 2,3,4 and 17, showing the easement
referred to in Exception 18 as a separately insured parcel, and clarifying that
the legal and beneficial interests under the water and sewer agreements with
Pinellas County (as referred to in Exceptions 10 and 11) are owned free and
clear of all liens and incumbrances by Seller and are being conveyed to the
Buyer pursuant hereto.
(ac) "PRELIMINARY TITLE REPORT" shall have the meaning set forth in
Section 2.2(d).
(ad) "PROPERTY" shall have the meaning set forth in Recital B(4).
(ae) "PURCHASE PRICE" shall mean Five Million Seven Hundred Thousand
Dollars ($5,700,000).
(af) "REAL PROPERTY" shall have the meaning set forth in Recital B(2).
(ag) "RESTAURANT SUPPLIES" shall mean the consumable goods, supplies
(including beverages but excluding unopened liquor bottles) and all silverware,
glassware, napkins, tablecloths, papers goods and related goods necessary to
6
efficiently operate the restaurant, bar, lounge or snack shop located upon or
within the Improvements.
(ah) "SEC" shall mean the United States Securities and Exchange
Commission.
(ai) "STATE" shall mean the state or commonwealth in which the
Property is located.
(aj) "SUMMARY SHEET" shall mean the summary page attached to this
Agreement and incorporated herein by reference.
(ak) "SURVEY" shall mean the survey prepared pursuant to Section
2.2(c).
(al) "TANGIBLE PERSONAL PROPERTY" shall have the meaning set forth in
Recital B(3).
(am) "TITLE COMPANY" shall mean a title insurance company selected by
Buyer and authorized to conduct a title insurance business in the State.
(an) "TITLE OBJECTIONS" shall have the meaning set forth in Section
2.2(d).
(ao) "SELLER'S ORGANIZATIONAL DOCUMENTS" shall mean the current
organizational documents of Seller.
(ap) "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.
(aq) "WARN ACT" shall mean the Worker Adjustment Retraining 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.
7
(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.
ARTICLE II
PURCHASE AND SALE; PAYMENT OF PURCHASE PRICE
2.1 PURCHASE AND SALE. Seller agrees to sell and Buyer agrees to
acquire the Property for the Purchase Price.
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 Buyer'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. Unless the Buyer provides
notice to Seller and Escrow Agent of a violation of any of the conditions set
forth in paragraph 2.3(a) below, Escrow Agent is directed to deliver to Seller
the Earnest Money Deposit being held by Escrow Agent.
(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.
8
(c) SURVEY. Prior to the Closing, Buyer shall obtain 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 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.
(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
9
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 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 has delivered to Buyer 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"). At Buyer's request, Seller shall cancel membership program at
closing, effective December 31, 1997, and Seller shall discontinue member cart
program and tournament schedule at closing, effective December 31, 1997.
(f) UCC SEARCH. Seller shall deliver to Buyer at least ten (10) days
prior to Closing current searches of all Uniform Commercial Code financing
statements filed with the Secretary of State of the State respecting Seller,
together with searches for pending litigation, tax liens and bankruptcy filings
in all appropriate jurisdictions.
(g) AUDIT. Seller shall deliver to Buyer financial statements
prepared by Seller's accountant based upon compilations for each of the Golf
Course within fifteen (15) days after the Effective Date.
2.3 PAYMENT OF PURCHASE PRICE.
(a) EARNEST MONEY DEPOSIT. Upon the execution of this Agreement,
Buyer will deliver to escrow with the Title Company the sum of $250,000 (the
"Earnest Money Deposit"), which sum shall be refundable to Buyer only if:
10
(i) Seller has materially misrepresented any fact that was and
is the basis upon which the Buyer has entered into this Agreement, or
(ii) Buyer gives notice to Seller that Buyer reasonably objects
to any matters which appear on the UCC Search referred to in Section 2.2(f) or
which appear on the current survey (other than the deletion of 3.5(+/-) acres
previously disclosed to Buyer) or an update of the Environmental Phase I report
(other than items which appeared on the Phase I report dated March 20, 1994, and
matters which are removed prior to closing) within seven (7) business days from
each of their receipt by Buyer, but not later than September 30, 1997. If Buyer
objects within the time periods as provided above to any environmental or survey
matters which Seller does not satisfy or remove prior to October 15, 1997, this
Agreement shall terminate with no further liability of the parties and Seller
shall cause the Escrow Agent to return to Buyer the Earnest Money Deposit.
Closing shall occur no later than October 15, 1997. Time is of the essence.
(b) PAYMENT. The Purchase Price shall be paid to Seller at closing.
ARTICLE III
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 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
11
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 any
predecessor to or 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 the Leases,
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 of 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 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,
12
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
(except for the irrigation wiring) 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 effecting the Real Property, or any portion
thereof. Subject to the foregoing, the condition of the Improvements and the
equipment is acceptable to Buyer as of the Effective Date.
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 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. Other than the contracts referred to in
item (1) on Exhibit C-1, each of the Operating Agreements may be terminated upon
not more than thirty (30) days prior written 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. Other than the contracts
referred to in item (1) on Exhibit C-1, Seller acknowledges that Buyer will not
assume any of the Operating
13
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 all
future premiums 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. At closing, Seller may cancel all insurance policies and any
refunds of premiums resulting therefrom shall be the property of the Seller.
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 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
14
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 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
15
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 principal use under
all laws and regulations applicable thereto without the necessity of any special
use permit, special exception or other special permit (other than the Operation
Permit referred to below) 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
there are no unfulfilled conditions respecting the development of the Property.
Seller has a valid permit to operate the Property within the zone of protection
from the County of Pinellas, Florida (the "Operation Permit"). The Operation
Permit is assignable to Buyer without the consent of Pinellas County, or any
other party.
3.19 HAZARDOUS SUBSTANCES. Except as may be disclosed in the Phase I
environmental assessment report dated March 20, 1994 for the Property, to the
best of Seller's knowledge, (i) no Hazardous Substances are or have been located
on (except in immaterial 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;
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
16
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 said Utilities 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 contains 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.
3.24 ADDITIONAL REPRESENTATIONS AND WARRANTIES.
(a) There are no Employment Agreements, contracts or
understandings that are binding on Buyer, its successors,
assignees or lessees.
(b) There is a bona fide, valid, binding and enforceable water
contract benefitting the Property with the local
municipality which will survive the closing pursuant to
which the Property will receive so long as it continues to
take a minimum number gallons per day of reclaimed water so
long as a golf course is operated on the Property.
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(c) No membership program exists or will exist after December
31, 1997.
3.25 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 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.
ARTICLE IV
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.
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4.4 BANKRUPTCY. No Act of Bankruptcy has occurred with respect to
Buyer.
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 V
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 instruments 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, to the Intangible Personal
Property, and to the Tangible Personal Property, free and clear of all liens,
encumbrances, restrictions, conditions and agreements except for 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
19
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 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. Prior to Closing, Seller shall not have diminished the 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.
(g) LIQUOR LICENSE. Seller shall have performed its obligations
under Section 7.5 below.
(h) THE OPERATION PERMIT. Seller shall have delivered to Buyer The
Operation Permit.
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.
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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 VI
CLOSING
6.1 CLOSING. Closing shall be held at 9:00 a.m., New York time, at
the offices of the Company (or counsel to the Company) on or before October 15,
1997; provided, however Buyer in its sole discretion, may extend the Closing for
up to an additional fifteen (15) days upon the payment of an additional
non-refundable deposit of Two Hundred Fifty Thousand Dollars ($250,000.00),
which sum shall constitute an increase in the Earnest Money Deposit. Time is of
the essence. 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 BILL 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 requested 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.
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(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.
(j) CERTIFICATE OF OCCUPANCY. Original copies of the letters from
Spring Engineering, Inc. and the County of Pinellas in the form attached as
Exhibit I, and a zoning certification letter issued by the County of Pinellas
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 (or indemnity with
respect to compliance) with 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.
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(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.
(u) MISCELLANEOUS. Any other document or instrument reasonably
requested by Buyer with respect to the Property, or in connection with the
Registered Offering.
6.3 BUYER'S DELIVERIES. At Closing, Buyer shall pay or deliver to
Seller the following:
(a) PURCHASE PRICE. The Purchase Price (as adjusted pursuant hereto)
by federal funds wire to the Escrow Agent.
(b) 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. All
filing fees for the Deed and the real estate
23
transfer, recording or other similar taxes due with respect to the transfer of
title and all charges for title insurance premiums shall be paid by 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. Buyer shall pay for all third party due diligence
reports. Buyer to pay for survey costs except 3.5+ acre tract currently
encompassing the pool and tennis areas not presently being used.
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 at
Closing:
(a) RENTS AND FEES. With the exception of prepaid annual dues and
prepaid Golf Club membership fees, all current and prepaid rents or 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.
24
(g) INCOME AND EXPENSES. All other income and expenses of the
Property, including, but not being 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 golf course properties in the
area in which the Property is located shall be prorated as of the Closing Date.
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 not be obligated to collect any
accounts receivable or revenues accrued prior to the Closing Date for Seller,
but if Buyer collects same, such amounts will be promptly remitted to Seller in
the form received. 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 bill or other 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.
ARTICLE VII
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 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
25
settle or compromise any such proceeding without Buyer's prior written consent.
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 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 Buyer (including, without limitation, Hallmark Partners/Alex
Coley) for whom Buyer accepts sole financial responsibility, and except for any
broker or finder who may have been engaged by Seller and for whom Seller accepts
sole financial responsibility, there is no real estate broker involved in this
transaction. Seller warrants and represents to Buyer that Seller has not dealt
with any other real estate broker in connection with this transaction, nor has
Seller been introduced to the Property or to Buyer by any other real estate
broker, and Seller shall indemnify Buyer and save and hold Buyer 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, or as a result of having introduced Seller to Buyer or to the
Property. In like manner, Buyer warrants and represents to Seller that Buyer
has not dealt with any real estate broker in connection with this transaction,
nor has Buyer been introduced to Seller by any 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 in
connection with this transaction. Buyer acknowledges that David J. Dick, 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
Buyer and/or its affiliates is subject to continuing disclosure requirements
under the Securities and Exchange Act of 1934 and that in connection with the
foregoing, Buyer will have the absolute right to prepare and file all necessary
or required registration statements,
26
annual, quarterly and current reports and other papers, documents and
instruments necessary or required in Buyer's judgment and that of its attorneys
and underwriters to comply with applicable SEC rules. The obligations of this
Section 7.4 shall survive any termination of this Agreement.
7.5 LIQUOR LICENSES. Seller shall transfer or cause to be
transferred to Buyer or, at Buyer's discretion, Buyer's nominee (which may
include the lessee under the Golf Course Lease), all liquor licenses and
alcoholic beverage licenses, if any, necessary to operate the restaurant, bars,
snack bars and lounges presently located within the Property, if any. To that
end, Seller and Buyer, or Buyer's nominee, shall cooperate each with the other,
and each shall execute such transfer forms, license applications and other
documents as may be necessary to effect such transfer. If permitted under the
laws of the jurisdiction in which the Property is located, the parties shall
execute and file all necessary transfer forms, applications and papers with the
appropriate liquor and alcoholic beverage authorities prior to Closing, to the
end that the transfer shall take effect, if possible, on the Closing Date,
simultaneously with Closing. If not so permitted, then the parties agree each
with the other that they will promptly execute all transfer forms, applications
and other documents required by the liquor authorities in order to effect such
transfer at the earliest date in time possible consistent with the laws of the
State in order that all liquor licenses may be transferred from Seller to Buyer,
or Buyer's nominee, at the earliest possible time. If under the laws of the
State such licenses cannot be transferred until after the Closing of the
transaction contemplated hereby, then Seller covenants and agrees that Seller
will cooperate with Buyer, or Buyer's nominee, in keeping open the bars and
liquor facilities of the Property between the Closing Date and the time when
such liquor license transfers actually become effective (but not to exceed 180
days), by exercising management and supervision of such facilities until such
time under Seller's licenses, provided, however, that: (i) Buyer shall
indemnify and hold Seller harmless from any costs, liability, damages or claims
encountered in connection with such operations during said period of time,
except for Seller's gross negligence or willful misconduct and (ii) Tarpon Woods
Restaurant Corporation shall be named as an additional insured on Buyer's
insurance policy.
ARTICLE VIII
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.
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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. 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 under Section 5.1 above 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, and Seller shall cause the Earnest Money
Deposit to be immediately returned to Buyer, 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, reserving any and all remedies Buyer may have,
including, without limitation, specific performance. 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 its obligations under this
Agreement, then Buyer shall retain all remedies accruing as a result thereof.
8.4 TERMINATION BY SELLER. If any condition set forth herein for the
benefit of Seller under Section 5.2 above 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, and instead, to proceed to Closing. If, prior to Closing,
Buyer defaults in performing any of its obligations under this Agreement
(including its obligation to purchase the Property), and Buyer fails to cure any
such default within ten (10) business days after notice thereof from Seller,
then Seller's sole remedy for such default shall be to terminate this Agreement
and Seller waives any claims for damages, actual, consequential or otherwise,
that it may possess against Buyer.
8.5 COSTS AND ATTORNEYS' 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
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recover its costs of prosecuting and/or defending same, including, without
limitation, reasonable attorneys' fees at trial and all appellate levels.
ARTICLE IX
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. 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.
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. Facsimile signatures shall be deemed to have the same legal effect
as original signatures. Original executed copies shall thereafter be exchanged
between the parties.
9.7 SEVERABILITY. If any term, covenant or condition of this
Agreement, or the application thereof to any person or
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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.
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.
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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 filing with the Securities and
Exchange Commission. 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
and the Registered Offering; provided, Seller shall have the right to provide
such information to its consultants and advisors.
9.15 LIKE KIND EXCHANGE TREATMENT. Buyer hereby acknowledges and
agrees that it is the intention of the Seller that any gain recognized by Seller
on the sale of the premises will be eligible for nonrecognition treatment
pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended.
Consistent with the foregoing, Seller anticipates entering into a Deferred
Exchange Agreement ("Exchange Agreement") with a party to be designated by
Seller and which Exchange Agreement will contemplate that the party designated
by Seller will be deemed to have conveyed the premises to Purchaser in
accordance with the terms and conditions provided for herein. Seller hereby
acknowledges and agrees that, in no event, will the Seller's execution of the
Exchange Agreement adversely affect Buyer to any extent under any of the other
terms and conditions set forth herein.
9.16 JOINT AND SEVERAL OBLIGATIONS. All obligations and liabilities
of Seller hereunder shall be the joint and several obligations of both Meghan
Associates, LLC and Tarpon Woods Restaurant Corporation.
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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 31st day of
August, 1997.
"BUYER"
GOLF TRUST OF AMERICA, L.P., A DELAWARE LIMITED
PARTNERSHIP
By: Golf Trust of America, Inc., a Maryland
corporation
Its: General Partner
By: /s/ W. Bradley Blair
------------------------------------
Its: President
------------------------------------
By:
------------------------------------
Its:
------------------------------------
"SELLER"
MEGHAN ASSOCIATES, LLC, A LIMITED LIABILITY
COMPANY,
By: /s/ Michael S. Muraco
------------------------------------
Michael S. Muraco
Its: President
------------------------------------
TARPON WOODS RESTAURANT CORPORATION
By: /s/ Michael S. Muraco
------------------------------------
Its: President
------------------------------------
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