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PURCHASE AND SALE AGREEMENT
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Seller: BONAVENTURE COUNTRY CLUB ASSOCIATES,
a Florida general partnership
Buyer: GOLF TRUST OF AMERICA, L.P.,
a Delaware limited partnership
Property: Bonaventure Golf Courses
Weston, Florida
Purchase
Price: $23,725,000
Effective
Date: November 26, 1997
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS; RULES OF CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . 2
1.1 Definitions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(a) Act of Bankruptcy. . . . . . . . . . . . . . . . . . . . . . . 2
(b) Affiliate. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(c) Authorizations . . . . . . . . . . . . . . . . . . . . . . . . 3
(d) Bill of Sale - Personal Property . . . . . . . . . . . . . . . 3
(e) Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(f) Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . 3
(g) Closing Statements . . . . . . . . . . . . . . . . . . . . . . 3
(h) Current Assets . . . . . . . . . . . . . . . . . . . . . . . . 3
(i) Deed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(j) Deposit. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(k) Schedule of Agreements . . . . . . . . . . . . . . . . . . . . 4
(l) Due Diligence Period . . . . . . . . . . . . . . . . . . . . . 4
(m) Employment Agreements. . . . . . . . . . . . . . . . . . . . . 4
(n) Environmental Claim. . . . . . . . . . . . . . . . . . . . . . 4
(o) Environmental Laws . . . . . . . . . . . . . . . . . . . . . . 4
(p) Escrow Agent . . . . . . . . . . . . . . . . . . . . . . . . . 5
(q) FIRPTA Certificate . . . . . . . . . . . . . . . . . . . . . . 5
(r) Golf Club. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(s) Golf Course Lease. . . . . . . . . . . . . . . . . . . . . . . 5
(t) Governmental Body. . . . . . . . . . . . . . . . . . . . . . . 5
(u) Hazardous Substances . . . . . . . . . . . . . . . . . . . . . 5
(v) Improvements . . . . . . . . . . . . . . . . . . . . . . . . . 5
(w) Intangible Personal Property . . . . . . . . . . . . . . . . . 5
(x) Inventory. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(y) Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(z) Management Agreement . . . . . . . . . . . . . . . . . . . . . 6
(aa) Mortgage Indebtedness. . . . . . . . . . . . . . . . . . . . . 6
(ab) Operating Agreements . . . . . . . . . . . . . . . . . . . . . 6
(ac) Owner's Title Policy . . . . . . . . . . . . . . . . . . . . . 6
(ad) Permitted Title Exceptions . . . . . . . . . . . . . . . . . . 6
(ae) Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(af) Preliminary Title Report . . . . . . . . . . . . . . . . . . . 6
(ag) Property . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(ah) Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . 6
(ai) Real Property. . . . . . . . . . . . . . . . . . . . . . . . . 7
(aj) Released Parcel. . . . . . . . . . . . . . . . . . . . . . . . 7
(ak) Restaurant Supplies. . . . . . . . . . . . . . . . . . . . . . 7
(al) SEC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(am) Seller's Organizational Documents. . . . . . . . . . . . . . . 7
(an) State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(ao) Summary Sheet. . . . . . . . . . . . . . . . . . . . . . . . . 7
(ap) Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(aq) Tangible Personal Property . . . . . . . . . . . . . . . . . . 7
(ar) Title Company. . . . . . . . . . . . . . . . . . . . . . . . . 7
(as) Title Objections . . . . . . . . . . . . . . . . . . . . . . . 7
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(at) Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(au) WARN Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.2 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . 7
(a) Gender.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(b) Section References.. . . . . . . . . . . . . . . . . . . . . . 8
(c) Headings.. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(d) Construction.. . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 2
PURCHASE AND SALE; PAYMENT OF PURCHASE PRICE. . . . . . . . . . . . . . . . 8
2.1 Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.2 Due Diligence Period. . . . . . . . . . . . . . . . . . . . . . . . 10
(a) Site Inspection. . . . . . . . . . . . . . . . . . . . . . . . 10
(b) Inspection of Documents. . . . . . . . . . . . . . . . . . . . 11
(c) Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(d) Preliminary Title Report . . . . . . . . . . . . . . . . . . . 12
(e) Environmental Remediation. . . . . . . . . . . . . . . . . . . 12
(f) Schedule of Agreements . . . . . . . . . . . . . . . . . . . . 13
(g) UCC Search . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(h) Financial Statements . . . . . . . . . . . . . . . . . . . . . 13
2.3 Payment of Purchase Price . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 3
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. . . . . . . . . . . . . 14
3.1 Organization and Power. . . . . . . . . . . . . . . . . . . . . . . 14
3.2 Authorization and Execution . . . . . . . . . . . . . . . . . . . . 14
3.3 Mortgage Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 14
3.4 Noncontravention. . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.5 No Special Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.6 Compliance with Existing Laws . . . . . . . . . . . . . . . . . . . 15
3.7 Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.8 Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.9 Operating Agreements. . . . . . . . . . . . . . . . . . . . . . . . 16
3.10 Warranties and Guaranties . . . . . . . . . . . . . . . . . . . . . 17
3.11 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.12 Condemnation Proceedings; Roadways. . . . . . . . . . . . . . . . . 17
3.13 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.14 Labor Disputes and Agreements . . . . . . . . . . . . . . . . . . . 18
3.15 Financial Information . . . . . . . . . . . . . . . . . . . . . . . 18
3.16 Organizational Documents. . . . . . . . . . . . . . . . . . . . . . 18
3.17 Operation of Property . . . . . . . . . . . . . . . . . . . . . . . 18
3.18 Bankruptcy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.19 Land Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.20 Hazardous Substances. . . . . . . . . . . . . . . . . . . . . . . . 19
3.21 Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.22 Curb Cuts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.23 Leased Property . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.24 Survival of Representations . . . . . . . . . . . . . . . . . . . . 20
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ARTICLE 4
BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. . . . . . . . . . . . . 21
4.1 Organization and Power. . . . . . . . . . . . . . . . . . . . . . . 21
4.2 Noncontravention. . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.3 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.4 Bankruptcy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.5 Authorization and Execution . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 5
CONDITIONS AND ADDITIONAL COVENANTS. . . . . . . . . . . . . . . . . . . . 23
5.1 As to Buyer's Obligations . . . . . . . . . . . . . . . . . . . . . 23
(a) Seller Deliveries. . . . . . . . . . . . . . . . . . . . . . . 23
(b) Representations, Warranties and Covenants. . . . . . . . . . . 23
(c) Title Insurance. . . . . . . . . . . . . . . . . . . . . . . . 23
(d) Title to Property. . . . . . . . . . . . . . . . . . . . . . . 23
(e) Condition of Property. . . . . . . . . . . . . . . . . . . . . 23
(f) Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(g) Liquor License . . . . . . . . . . . . . . . . . . . . . . . . 24
5.1.1 As to Seller's Obligations . . . . . . . . . . . . . . . . . . 24
(a) Buyer's Deliveries . . . . . . . . . . . . . . . . . . . . . . 24
(b) Representations, Warranties and Covenants. . . . . . . . . . . 24
ARTICLE 6
CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.2 Seller's Deliveries . . . . . . . . . . . . . . . . . . . . . . . . 25
(a) Seller's Certificate . . . . . . . . . . . . . . . . . . . . . 25
(b) The Deed . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(c) The Bill of Sale - Personal Property . . . . . . . . . . . . . 25
(d) Evidence of Title. . . . . . . . . . . . . . . . . . . . . . . 25
(e) Title Requirements . . . . . . . . . . . . . . . . . . . . . . 25
(f) The FIRPTA Certificate . . . . . . . . . . . . . . . . . . . . 25
(g) Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(h) Organizational Documents . . . . . . . . . . . . . . . . . . . 25
(i) Partner's Documents. . . . . . . . . . . . . . . . . . . . . . 25
(j) Assignment of Contracts. . . . . . . . . . . . . . . . . . . . 25
(k) Assignment of Facilities Agreement . . . . . . . . . . . . . . 25
(l) Certificate of Occupancy . . . . . . . . . . . . . . . . . . . 26
(m) Improvement Plans. . . . . . . . . . . . . . . . . . . . . . . 26
(n) Communication; Addresses . . . . . . . . . . . . . . . . . . . 26
(o) Tax Bills. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(p) Surveys. . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(q) Tournament Schedule. . . . . . . . . . . . . . . . . . . . . . 26
(r) Accounts Receivable. . . . . . . . . . . . . . . . . . . . . . 26
(s) Payoff Statement . . . . . . . . . . . . . . . . . . . . . . . 26
(t) Tenant Notices . . . . . . . . . . . . . . . . . . . . . . . . 26
(u) Letter from Contractor . . . . . . . . . . . . . . . . . . . . 26
(v) Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . 27
6.3 Buyer's Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . 27
(a) Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . 27
(b) Assignment of Contracts. . . . . . . . . . . . . . . . . . . . 27
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(c) Assignment of Facilities Agreement . . . . . . . . . . . . . . 27
(d) Assumption Agreement . . . . . . . . . . . . . . . . . . . . . 27
(e) Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . 27
6.4 Mutual Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . 27
(a) Closing Statements . . . . . . . . . . . . . . . . . . . . . . 27
(b) Liquor License Transfer Documents. . . . . . . . . . . . . . . 27
(c) Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . 27
6.5 Closing Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.6 Income and Expense Allocations. . . . . . . . . . . . . . . . . . . 28
(a) Rents and Fees . . . . . . . . . . . . . . . . . . . . . . . . 28
(b) Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(c) Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(d) Fuel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(e) Municipal Improvement Liens. . . . . . . . . . . . . . . . . . 28
(f) License and Permit Fees. . . . . . . . . . . . . . . . . . . . 28
(g) Income and Expenses. . . . . . . . . . . . . . . . . . . . . . 28
(h) Miscellaneous Prorations . . . . . . . . . . . . . . . . . . . 29
6.7 Sales Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.8 Accounts Receivable/Cash. . . . . . . . . . . . . . . . . . . . . . 29
6.9 Post-Closing Adjustments. . . . . . . . . . . . . . . . . . . . . . 29
(a) Accounts Receivable. . . . . . . . . . . . . . . . . . . . . . 29
(b) Availability of Bills. . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 7
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.1 Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.2 Risk of Loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.3 Real Estate Broker. . . . . . . . . . . . . . . . . . . . . . . . . 30
7.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.5 Liquor Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 8
LIABILITY OF BUYER; INDEMNIFICATION BY SELLER;
TERMINATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8.1 Liability of Buyer. . . . . . . . . . . . . . . . . . . . . . . . . 32
8.2 Indemnification by Seller . . . . . . . . . . . . . . . . . . . . . 32
8.3 Indemnification by Buyer. . . . . . . . . . . . . . . . . . . . . . 32
8.4 Termination by Buyer. . . . . . . . . . . . . . . . . . . . . . . . 32
8.5 Termination by Seller . . . . . . . . . . . . . . . . . . . . . . . 33
8.6 Costs and Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE 9
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.1 Completeness; Modification. . . . . . . . . . . . . . . . . . . . . 34
9.2 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.3 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . 34
9.4 Days. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.6 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.7 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.8 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.9 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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9.10 Incorporation by Reference. . . . . . . . . . . . . . . . . . . . . 35
9.11 No Partnership. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.12 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . 35
9.13 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.14 Radon Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . 36
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EXHIBITS
Exhibit A - Legal Description of the Land
Exhibit B - Description of Improvements
Exhibit C - Tangible Personal Property
Exhibit D - Intangible Personal Property
Exhibit E - Bill of Sale - Personal Property
Exhibit F - Deed
Exhibit G - FIRPTA Affidavit of Seller
Exhibit H - Contracts and Operating Agreements
Exhibit I - Due Diligence List
Exhibit J - Warranty Disclosure Schedule
Exhibit K - Seller's Certificate
Exhibit L - Permitted Title Exceptions
Exhibit M - Assignment of Contracts
Exhibit N - Assignment of Facilities Agreement
Exhibit O - Legal Description of Released Parcel
Exhibit P - Litigation, Claim or Proceedings
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PURCHASE AGREEMENT
SUMMARY SHEET
Buyer: GOLF TRUST OF AMERICA, L.P., a Delaware limited partnership
Seller: BONAVENTURE COUNTRY CLUB ASSOCIATES,
a Florida general partnership
Effective
Date: November 26, 1997
Golf Courses: Bonaventure Golf Courses (East and West Courses)
Trade Name: Bonaventure Country Club
Purchase
Price: Twenty-Three Million Seven Hundred Twenty-Five Thousand
Dollars ($23,725,000)
Notice Address
of Seller: Bonaventure Country Club Associates
c/o Ireland Companies
12000 Biscayne Boulevard
Miami, Florida 33181
Attention: Thomas K. Ireland
with a
copy to: Rubin Baum Levin Constant Friedman & Bilzin
2500 First Union Financial Center
Miami, Florida 33131-2336
Attention: Martin A. Schwartz, Esq.
Notice Address
of Buyer: Golf Trust of America, Inc.
14 North Adger's Wharf
Charleston, South Carolina 29401
Attention: W. Bradley Blair, II
Scott D. Peters
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 the 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:
1. The Land, together with two 18-hole golf courses, driving range,
putting greens, clubhouse facilities, snack bar, restaurant, pro shop,
buildings, structures, parking lots, improvements, fixtures and other items of
real estate located on the Land as more particularly described in EXHIBIT B
attached hereto (the "Improvements").
2. All rights, privileges, easements and appurtenances to the Land
and the Improvements, if any, including, without limitation, all of Seller's
right, title and interest, if any, in and to all mineral and water rights and
all easements, rights-of-way and other appurtenances used or connected with the
beneficial use or enjoyment of the Land and the Improvements, including, without
limitation, concession agreements for spas and the like, if any (the Land, the
Improvements and all such easements and appurtenances are sometimes collectively
hereinafter referred to as the "Real Property").
3. All items of tangible personal property and fixtures (if any)
owned or leased by Seller and located on or used in connection with the Real
Property, including, but not limited to, machinery, equipment, furniture,
furnishings, movable walls or partitions, phone systems and other control
systems, restaurant equipment, computers or trade fixtures, golf course
operation and maintenance equipment, including mowers, tractors, aerators,
sprinklers, sprinkler and irrigation facilities and equipment, valves or rotors,
driving range equipment, athletic training equipment, office equipment or
machines, other decorations, and equipment or machinery of every kind or nature
located on or used in connection with the operation of the Real Property whether
on or off-site, including all warranties and guaranties associated therewith
(the "Tangible Personal Property"). A schedule of the Tangible Personal
Property is attached to this Agreement as EXHIBIT C, indicating whether such
Tangible Personal Property is owned or leased.
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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 the
name "Bonaventure Country Club"), guarantees, Authorizations (as hereinafter
defined), general intangibles, business records, plans and specifications,
surveys all licenses, permits and approvals with respect to the construction,
ownership, operation or maintenance of the Property, to the extent transferable,
any unpaid award for taking by condemnation or any damage to the Real Property
by reason of a change of grade or location of or access to any street or
highway, excluding (a) any of the aforesaid rights that Buyer elects not to
acquire and, (b) subject to Section 2.1(c), the Current Assets, as hereinafter
defined (collectively, the "Intangible Personal Property"). A schedule of the
Intangible Personal Property is attached to this Agreement as EXHIBIT D. (The
Real Property, Tangible Personal Property and Intangible Personal Property are
sometimes collectively referred to as the "Property".)
C. Upon the acquisition by the Buyer of the Property, the Buyer will
lease the Property to a third-party lessee pursuant to a separate lease (the
"Golf Course Lease").
NOW, THEREFORE, in consideration of the mutual covenants, promises and
undertakings of the parties hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, it is agreed:
ARTICLE 1
DEFINITIONS; RULES OF CONSTRUCTION
1.1 DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meanings set forth on the Summary Sheet. The following terms shall
have the indicated meanings:
(a) "ACT OF BANKRUPTCY" shall mean if a party to this agreement or
any general partner thereof shall (a) apply for or consent to the appointment
of, or the taking of possession by, a receiver, custodian, trustee or liquidator
of itself or of all or a substantial part of its Property, (b) admit in writing
its inability to pay its debts as they become due, (c) make a general assignment
for the benefit of its creditors, (d) file a voluntary petition or commence a
voluntary case or proceeding under the Federal Bankruptcy Code (as now or
hereafter in effect) or any new bankruptcy statute, (e) be adjudicated bankrupt
or insolvent, (f) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up or composition
or adjustment of debts, (g) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case or proceeding
2
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) "AFFILIATE" shall mean, as applied to any Person, any other
Person directly or indirectly controlling, controlled by, or under common
control with, that Person.
(c) "AUTHORIZATIONS" shall mean all licenses, permits and approvals
required by any governmental or quasi-governmental agency, body or officer for
the ownership, operation and use of the Property or any part thereof as a golf
course with the existing uses and operations, including clubhouse, bar and
related facilities, as applicable.
(d) "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.
(e) "CLOSING" shall mean the time that 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 5.1.1, respectively, have been satisfied or
waived.
(f) "CLOSING DATE" shall mean the date on which the Closing occurs.
(g) "CLOSING STATEMENTS" shall have the meaning set forth in Section
6.4(a).
(h) "CURRENT ASSETS" shall mean cash, accounts receivable and
Inventory (as hereinafter defined) held by Seller prior to the Closing Date.
(i) "DEED" shall mean a special warranty deed, substantially in the
form of EXHIBIT F attached hereto (or lease
3
assignment, if the Property is owned by Seller pursuant to a ground lease),
conveying the title of Seller to the Real Property subject only to Permitted
Title Exceptions. If there is any difference between the description of the
Land, as shown on EXHIBIT A attached hereto and the description of the Land as
shown on the Survey, the description of the Land to be contained in the Deed and
the description of the Land set forth in the Owner's Title Policy (as defined
herein) shall conform to the description shown on the Survey.
(j) "DEPOSIT" shall mean the sum of Seven Hundred Fifty Thousand
Dollars ($750,000) together with accrued interest thereon, which shall be
deposited with Escrow Agent, and held in escrow by the Escrow Agent pursuant to
the provisions of this Agreement.
(k) "SCHEDULE OF AGREEMENTS" shall have the meaning set forth in
Section 2.2(f).
(l) "DUE DILIGENCE PERIOD" shall mean the period commencing at 9:00
a.m., Eastern Standard time, on the Effective Date, and continuing through 5:00
p.m., Eastern Standard time, on November 26, 1997.
(m) "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.
(n) "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.
(o) "ENVIRONMENTAL LAWS" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.;
the Hazardous Materials Transportation Act, as amended, 49 U.S.C. Section 1801,
et seq.; the Superfund Amendments and reauthorization Act of 1986, Pub. L.
99-499 and 99-563; the Occupational Safety and Health Act of 1970, as amended,
29 U.S.C. Section 651, et seq.; the Clean Air Act, as amended, 42 U.S.C. Section
7401, et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 201,
et seq.; the Federal Water Pollution
4
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.
(p) "ESCROW AGENT" shall mean the Title Company.
(q) "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.
(r) "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.
(s) "GOLF COURSE LEASE" shall have the meaning set forth in Recital
C.
(t) "GOVERNMENTAL BODY" shall mean any federal state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
(u) "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).
(v) "IMPROVEMENTS" shall have the meaning set forth in Recital B(1).
(w) "INTANGIBLE PERSONAL PROPERTY" shall have the meaning set forth
in Recital B(4).
(x) "INVENTORY" shall mean the merchandise located in any pro shop or
similar facility and held for sale in the ordinary course of Seller's business.
5
(y) "LAND" shall have the meaning set forth in Recital A.
(z) "MANAGEMENT AGREEMENT" shall mean that certain Golf Course
Facilities Management Agreement dated September 15, 1988, as amended, by and
between Seller and Johnny LaPonzina, Inc. for management of the Property.
(aa) "MORTGAGE INDEBTEDNESS" shall mean the indebtedness of Seller
which is secured by a mortgage or deed of trust on the Property made to Textron
Financial Corporation in the original principal amount of Seventeen Million Five
Hundred Thousand Dollars ($17,500,000).
(bb) "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.
(cc) "OWNER'S TITLE POLICY" shall mean a 1970 Form B American Land
Title Association extended coverage owner's policy of title insurance (with
mechanics' lien coverage) 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 and available under Florida law. The
Owner's Title Policy shall insure Buyer in the amount of the Purchase Price.
(dd) "PERMITTED TITLE EXCEPTIONS" shall mean those exceptions to title
to the Real Property described in EXHIBIT L and those that are evidenced by a
pro forma title report and not objected to by Buyer within the period described
in Section 2.2(d).
(ee) "PERSON" means and includes natural persons, corporations,
limited partnerships, limited liability companies, general partnerships,
joint stock companies, joint ventures, associations, companies, trusts,
banks, trusts companies, land trusts, business trusts, Indian tribes or other
organizations, whether or not legal entities, and governments and agencies
and political subdivisions thereof.
(ff) "PRELIMINARY TITLE REPORT" shall have the meaning set forth in
Section 2.2(d).
(gg) "PROPERTY" shall have the meaning set forth in Recital B(4).
(hh) "PURCHASE PRICE" shall mean Twenty-Three Million Seven Hundred
Twenty-Five Thousand Dollars ($23,725,000).
6
(ii) "REAL PROPERTY" shall have the meaning set forth in Recital B(2).
(jj) "RELEASED PARCEL" shall mean that certain parcel of land more
particularly described in EXHIBIT O attached hereto, which Seller proposes to
release from Property prior to or at Closing.
(kk) "RESTAURANT SUPPLIES" shall mean the consumable goods, supplies
(including beverages) and all silverware, glassware, napkins, tablecloths, paper
goods and related goods necessary to efficiently operate the restaurant, bar,
lounge or snack shop located upon or within the Improvements.
(ll) "SEC" shall mean the United States Securities and Exchange
Commission.
(mm) "SELLER'S ORGANIZATIONAL DOCUMENTS" shall mean the current
organizational documents of Seller.
(nn) "STATE" shall mean the state or commonwealth in which the
Property is located.
(oo) "SUMMARY SHEET" shall mean the summary page attached to this
Agreement and incorporated herein by reference.
(pp) "SURVEY" shall mean the survey prepared pursuant to Section
2.2(c).
(qq) "TANGIBLE PERSONAL PROPERTY" shall have the meaning set forth in
Recital B(3).
(rr) "TITLE COMPANY" shall mean a title insurance company selected by
Buyer and authorized to conduct a title insurance business in the State.
(ss) "TITLE OBJECTIONS" shall have the meaning set forth in Section
2.2(d).
(tt) "UTILITIES" shall mean public sanitary and storm sewers, natural
gas (if any exists), telephone, public water facilities, electrical facilities
and all other utility facilities and services necessary for the operation and
occupancy of the Property.
(uu) "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.
7
(b) SECTION REFERENCES. All references herein to particular
articles, sections, subsections, clauses or exhibits are references to articles,
sections, subsections, clauses or exhibits of this Agreement.
(c) HEADINGS. The table of contents and headings contained herein
are solely for convenience of reference and shall not constitute a part of this
Agreement nor shall they affect its meaning, construction or effect.
(d) CONSTRUCTION. Each party hereto and its counsel have reviewed
and revised (or requested revisions of) this Agreement and have participated in
the preparation of this Agreement, and therefore any usual rules of construction
requiring that ambiguities are to be resolved against a particular party shall
not be applicable in the construction and interpretation of this Agreement or
any exhibits hereto.
ARTICLE 2
PURCHASE AND SALE; PAYMENT OF PURCHASE PRICE
2.1 PURCHASE AND SALE. Seller agrees to sell and Buyer agrees to purchase
the Property for the Purchase Price.
(a) On or before November 25, 1997, Buyer shall deliver the Deposit
to Escrow Agent. The Deposit shall be placed in an interest-bearing account in
the name of Escrow Agent. The Deposit and interest thereon shall be tendered to
Seller or Buyer, as the case may be, in accordance with terms and conditions of
this Agreement. Escrow Agent shall hold the Deposit in accordance with the
terms of this Agreement. Escrow Agent has agreed to act as escrow agent for the
convenience of the Buyer and Seller without fee or other charges for such
service. Escrow Agent shall not be liable for: (i) any acts taken in good faith
but only for its intentional misconduct or gross negligence; (ii) any loss or
impairment of funds in the course of collection or on deposit in a financial
institution arising out of failure, insolvency or suspension of such financial
institution; (iii) expiration of any time limit or other consequence of delay
unless a properly executed written instruction, accepted by Escrow Agent, has
instructed Escrow Agent to comply with such time limit; (iv) default, error,
action or omission of any Party; (v) compliance with any legal process,
subpoena, writ, order, judgment or decree, whether issued with or without
jurisdiction and whether subsequently vacated, modified, set aside or reversed;
(vi) any legal effect, insufficiency or undesirability of any instrument
deposited with or delivered by Escrow Agent or exchanged by the parties to this
Agreement whether or not Escrow Agent prepared such instrument; or (vii) any
default, error, action or omission of any party to this Agreement. Escrow Agent
may rely upon the written notices, communications, orders or instructions given
by any Party or reasonably believed by it to be genuine. The Parties will
8
indemnify and hold Escrow Agent harmless against any matters directly or
indirectly related to the Deposit, including, without limitation, attorneys'
fees. Notwithstanding anything to the contrary in this Agreement, if prior to
Closing either Party makes a demand upon Escrow Agent for the Deposit, Escrow
Agent shall give notice to the other Party of such demand. Should Escrow Agent
not receive an objection from the non-demanding Party to the proposed payment
within 10 days after such notice, Escrow Agent is authorized to make payment to
the demanding Party; if an objection is received within such 10-day period or if
for any other reason Escrow Agent is in good faith uncertain about its
responsibilities, it shall continue to hold the Deposit until otherwise directed
by written instructions from Seller and Buyer or by final judgment of a court of
competent jurisdiction. In the event of any dispute, Escrow Agent may at any
time deposit the Deposit with the Clerk of the Court of the County in which the
Property is located and be relieved and discharged of all obligations under this
Agreement. Seller acknowledges that Rubin Baum Levin Constant Friedman & Bilzin
is acting as Escrow Agent and is counsel to Seller. In the event of any dispute
between Seller and Buyer, Rubin Baum Levin Constant Friedman & Bilzin shall be
permitted to continue to represent Buyer in such dispute, including, without
limitation, any litigation over payment of the Deposit.
(b) Buyer shall have the option, at its sole discretion, to accept
title to the Property subject to the Mortgage Indebtedness, provided Buyer can
obtain the consent of the holder of the Mortgage Indebtedness to the assumption
by Buyer. In the event the consent is obtained and Buyer elects to assume the
Mortgage Indebtedness, the outstanding principal balance of the Mortgage
Indebtedness shall be credited against the Purchase Price, and Buyer shall pay a
loan assumption fee of up to one percent (1%) of the outstanding Mortgage
Indebtedness. If the consent of the Mortgage Indebtedness holder cannot be
obtained, then Buyer shall pay off the Mortgage Indebtedness at Closing and pay
the prepayment penalty owed to the holder of the Mortgage Indebtedness, up to a
maximum of four percent (4%) of the amount of the Mortgage Indebtedness. Buyer
shall be responsible for all costs associated with Buyer's assumption of the
Mortgage Indebtedness, including, without limitation, the lender's legal fees,
the application fee, and any taxes associated with the assumption of the
Mortgage Indebtedness.
(c) Upon payment of the Purchase Price to Seller, Seller shall
transfer to Buyer or Buyer's designee Fifty Thousand Dollars ($50,000) worth of
Inventory, as reasonably determined by Buyer and Seller based on Seller's cost
and the wholesale replacement cost thereof. Buyer or its designee shall also
purchase the remainder of the Inventory (the "Remaining Inventory") for the
price which Buyer or Buyer's designee could have purchased the Remaining
Inventory had Buyer or Buyer's designee purchased the Remaining Inventory
directly from its suppliers.
9
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 Property
and to perform, at Seller's expense, such surveying, engineering, and
environmental studies and investigations as Buyer may deem appropriate. No
invasive inspection shall be performed without Seller's prior written consent
(which consent shall not be unreasonably withheld or delayed, but it shall be
deemed reasonable for Seller to refuse to consent to any inspections which would
be materially disruptive to Seller's business). Buyer shall give not less than
twenty-four (24) hours prior written notice to Seller prior to any entry upon
the Property for the purpose of conducting such inspections, and such entry
shall be scheduled and coordinated with Seller. At Seller's election,a
representative of Seller shall be present during any entry by Buyer or Buyer's
representative upon the Property for conducting said inspections. Buyer shall
not cause or permit any mechanic's liens, materialmen's liens, or other liens to
be filed against the Property as a result of the inspections. Buyer shall
repair and restore any damage to the Property caused by entry upon the Property
by Buyer or Buyer's representative. Buyer shall indemnify, defend, and hold
harmless Seller and Seller's officers, directors, shareholders, partners,
tenants, agents, and employees (collectively, the "Indemnified Parties"), from
and against any and all actions, losses, costs, damages, claims, liabilities,
and expenses (including court costs and reasonable attorneys' fees) brought,
sought, or incurred by or against any of the Indemnified Parties resulting from,
arising out of, or relating to, entry upon the Property or Improvements by Buyer
or any of the other Buyer's representatives. The foregoing indemnification and
repair and restoration obligations shall expressly survive the termination of
this Agreement but survival of such obligations for any physical damage to the
Property shall be limited to a period of six (6) months, at which time they
shall expire unless prior to such time a lawsuit is commenced against Buyer
alleging a breach of such obligations and then only to the extent of the
purported breach. 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
10
obligation under this Agreement and, Buyer will deliver such reports and
materials to Seller.
(b) INSPECTION OF DOCUMENTS. During the Due Diligence Period, Seller
shall make available to Buyer, its agents, auditors, engineers, attorneys and
other designees, for inspection and/or copying, copies of all existing
architectural and engineering studies, surveys, title insurance policies, zoning
and site plan materials, correspondence, environmental audits and reviews,
books, records, tax returns, bank statements, financial statements, fee
schedules and any and all other material or information relating to the Property
which are in, or come into, Seller's possession or control, or which Seller may
attain. Such information is more particularly described in EXHIBIT I attached
hereto, as the same may be amended or supplemented by Seller from time to time.
Buyer acknowledges receipt of the materials described in EXHIBIT I.
(c) SURVEY. Seller has delivered to Buyer all survey(s) of the
Property, or any portion thereof, in Seller's possession. In addition, Seller
shall cause the most recent survey of the Property to be certified to Buyer and
Buyer's designees, and shall deliver the same to Buyer prior to Closing. Buyer
may procure an ALTA/ACSM survey or a boundary survey 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. If Buyer
has any objection to survey matters, the same shall be treated for all purposes
as Title Objections within the provisions of this Agreement.
11
(d) PRELIMINARY TITLE REPORT. Seller has provided to Buyer a copy of
an existing title insurance policy covering the Real Property. 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
shall, within five (5) business days of receipt of the Preliminary Title Report
by Buyer's attorneys, 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. The matters described in
EXHIBIT L shall not be included in any 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 except as
otherwise provided for the Mortgage Indebtedness. For such purposes, Seller may
use all or a portion of the cash to close. If Seller is unable to cure such
defects by Closing, after having attempted to do so in good faith, or if Seller
has elected not to cure any title defects by notice to Buyer ("Seller's Non-Cure
Notice") 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
(which termination to be effective must be given within five (5) business days
following Buyer's receipt of Seller's Non-Cure Notice) in which case Escrow
Agent shall promptly return the Deposit to Buyer. 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 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) ENVIRONMENTAL REMEDIATION. Seller has entered into a contract
(the "Contract") with SECOR International, Inc. (the "Contractor") to complete
all environmental and asbestos remediation at the Property detailed in the
proposal dated June 30, 1997, prepared by SECOR for Mr. Scott Ireland, and in
Section
12
9.2 of the Limited Asbestos Survey Report for the Property dated February 21,
1997, prepared by SECOR (collectively, the "Remediation Work"). Seller shall
use its best efforts to ensure that the Remediation Work is completed by the
Contractor prior to Closing. The Remediation Work shall be performed at
Seller's sole cost and expense. If the Remediation Work is not completed prior
to Closing, Seller shall pay Contractor for all work completed as of the date of
Closing and Buyer shall receive a credit (the "Credit") against the Purchase
Price in the amount of all remaining sums unpaid under the Contract. In no
event shall Buyer be responsible for any costs due, or claimed to be due, to the
Contractor or any other person or entity in connection with the Remediation Work
over and above the amount of the Credit, and Seller hereby indemnifies and holds
Seller harmless from and against any and all claims, costs, penalties, damages,
losses, liabilities and expenses (including reasonable attorney's fees) arising
out of the cost of the Remediation Work.
(f) SCHEDULE OF AGREEMENTS. 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 and other matters is included in the list attached
hereto as EXHIBIT H (the "Schedule of Agreements").
(g) UCC SEARCH. Buyer shall, at its election, obtain at Buyer's
expense 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.
(h) FINANCIAL STATEMENTS. Seller has delivered to Buyer financial
statements for each of the following periods: Twelve (12) months ended December
31, 1996; January 1, 1997 through September 30, 1997 and shall deliver to Seller
five (5) days prior to the Closing Date for the period October 1, 1997 through
the date five (5) days prior to the Closing Date. Such statements shall be
certified to Buyer by Seller to be true, complete and accurate and to accurately
reflect the operations at the Property for the applicable period. On or before
December 5, 1997, Buyer may, at its sole cost and expense, cause such financial
statements, along with Seller's operating procedures, books and records, to be
reviewed by its independent certified public accountants (the "Auditor's
Report"). If the Auditor's Report determines that the net operating income from
the Property for the twelve (12) months ending December 31, 1996 is at least
$100,000 less than the net operating income represented in the financial
statements delivered by Seller, Buyer may elect to either (i) terminate this
Agreement by written notice to Seller,
13
and receive a prompt refund of the Deposit, or (ii) proceed with the transaction
contemplated by this Agreement without a reduction in the Purchase Price.
2.3 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid to Seller
at closing.
ARTICLE 3
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
To induce Buyer to enter into this Agreement and to purchase the
Property, and to pay the Purchase Price therefor, Seller hereby makes the
following representations, warranties and covenants with respect to the
Property, subject to the Warranty Schedule of Agreements 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 Florida and is
qualified to transact business in the state of Florida 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 other than the
holder of the Mortgage Indebtedness. All action required pursuant to this
Agreement necessary to effectuate the transactions contemplated herein has been,
or will at Closing be, taken promptly and in good faith by Seller and its
representatives and agents.
3.3 MORTGAGE INDEBTEDNESS. As of the Effective Date and as of the Closing
there shall exist no defaults under the Mortgage Indebtedness or any documents
executed by Seller or any Affiliate of Seller in connection therewith, with or
without the giving of notice or the passage of time. Seller is responsible for
all payments and all obligations, including but not limited
14
to, any taxes, fees or additional payments, related to the release of the
Released Parcel, which is currently subject to the lien of the Mortgage
Indebtedness.
3.4 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 (excluding the
agreements evidencing the Mortgage Indebtedness), 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. Except as indicated on
EXHIBIT L 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. Except as indicated on EXHIBIT L, 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, except as described in item no. 4 listed on EXHIBIT L.
3.5 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 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) over the assessed valuation for
1997.
3.6 COMPLIANCE WITH EXISTING LAWS. Seller possesses all Authorizations,
each of which is valid and in full force and effect, and, to Seller's knowledge,
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. To Seller's knowledge, 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. Except as disclosed in item nos. 1 and 2 of EXHIBIT J
attached hereto, Seller has no knowledge, nor
15
has it received written notice within the past three years, of any existing or
threatened violation of any provision of any applicable building, zoning,
subdivision, environmental or other governmental ordinance, resolution, statute,
rule, order or regulation, including but not limited to those of environmental
agencies or insurance boards of underwriters, with respect to the ownership,
operation, use, maintenance or condition of the Property or any part thereof, or
requiring any repairs or alterations other than those that have been made prior
to the Effective Date.
3.7 REAL PROPERTY. To Seller's knowledge, (i) the Improvements conform in
all material 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 prior to the Closing Date or
will be fully paid for in the ordinary course of business by Seller after the
Closing Date, and Buyer shall have no responsibility for paying such contractors
and subcontractors or paying for such materials, (iv) the Improvements have been
completed in all material respects, and (v) all equipment necessary or
appropriate for the use or operation of the Property has been installed and is
presently operative in good working order. Seller has not received any written
notice which is still in effect that there is, and, to 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.
3.8 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 other than the Mortgage Indebtedness 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 except to
the extent of approvals necessary to transfer any leased property.
3.9 OPERATING AGREEMENTS. The Management Agreement will be terminated by
Seller effective as of the Closing Date. 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)
16
Seller has obtained Buyer's prior written consent to such agreement or
modification.
3.10 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.
3.11 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. Seller covenants that at least seven (7) days prior to Closing,
Seller shall deliver to Buyer evidence reasonably satisfactory to Buyer that all
of Seller's insurance policies are valid and in full force and effect and that
all premiums for such policies have been paid.
3.12 CONDEMNATION PROCEEDINGS; ROADWAYS. Seller has received no written
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.
3.13 LITIGATION. Except as disclosed in EXHIBIT P, there is no action,
suit or proceeding pending or threatened in writing 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
17
the ability of Seller to perform its obligations under this Agreement, or under
any document to be delivered pursuant hereto, (d) could create a lien on the
Property, any part thereof or any interest therein, (e) the subject matter of
which concerns any past or present employee of Seller or its managing agent, or
(f) could otherwise adversely materially affect the Property, any part thereof
or any interest therein or the use, operation, condition or occupancy thereof.
3.14 LABOR DISPUTES AND AGREEMENTS. There are no labor disputes pending
or, to 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.
3.15 FINANCIAL INFORMATION. To 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.
3.16 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.
3.17 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
18
fail to take action the result of which would have a material adverse effect on
the Property or Buyer's ability to continue the operation thereof after the
Closing Date in substantially the same manner as presently conducted, or which
would cause any of the representations and warranties contained in this Article
III to be untrue as of Closing in any material respect.
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 3.17 between the Effective Date and the Closing Date.
3.18 BANKRUPTCY. No Act of Bankruptcy has occurred with respect to Seller.
3.19 LAND USE. The current use and occupancy of the Property for golfing
and all other related purposes (including, without limitation, the sale of
merchandise and food and beverages) are permitted as a matter of right as a
principal use under all laws and regulations applicable thereto without the
necessity of any special use permit, special exception or other special permit,
(other than an alcoholic beverage permit and a food service permit) permission
or consent and Seller is not aware of any proposal to change or restrict such
use. Seller has all necessary certificates of occupancy or completion to
operate the Property as presently operated and there are no unfulfilled
conditions respecting the development of the Property.
3.20 HAZARDOUS SUBSTANCES. Except as may be disclosed in the documents
described in the Warranty Disclosure Schedule, to 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
environmental and occupational health and safety matters and Hazardous
Substances. To Seller's knowledge, there currently exist no facts or
circumstances that could reasonably be expected to give rise to a
19
material non-compliance with Environmental Laws, material environmental
liability or material Environmental Claim except as may be disclosed by the
documents described in the Warranty Disclosure Schedule.
3.21 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 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, to Seller's
knowledge, the Real Property's utilization of such facilities is in compliance
with all applicable governmental and environmental protection authorities' laws,
rules, regulations and requirements.
3.22 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.
3.23 LEASED PROPERTY. The Personal Property identified as item nos. 7, 8,
9, 10, 11, 17 and 25 on EXHIBIT H 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.
3.24 SURVIVAL OF REPRESENTATIONS. Each of the representations, warranties
and covenants contained in this Article III are intended for the benefit of
Buyer. Except for the matters contained in sections 3.3, 3.11, 3.21 and 3.22
which shall not survive Closing, 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 a lawsuit is commenced against
Seller alleging such breach and then only to the extent of the purported breach.
In the event the Buyer determines based on any third party report, due diligence
document or other written documentation delivered by Seller to Buyer
specifically disclosing such breach that there is a breach of any
representation, warranty or covenant of Seller prior to Closing, or if Buyer's
internal documentation created prior to the Closing indicates the presence of
such a breach, Buyer's sole remedy shall be to terminate this Agreement and
receive a return of the Deposit. No breach of any representation, warranty or
covenant of Seller shall be actionable following Closing if such breach is
specifically
20
disclosed in the due diligence documents delivered to Buyer or is otherwise
disclosed to Buyer in writing as indicated above prior to Closing but Buyer
nevertheless elected to close. As used in this Agreement, the phrase "to
Seller's knowledge" or words of similar import shall mean the actual, and not
imputed or constructive, knowledge of Johnny LaPonzina or Thomas K. Ireland, and
Seller represents that Johnny LaPonzina and Thomas K. Ireland are the persons
with the primary oversight responsibility for the Property.
ARTICLE 4
BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
To induce Seller to enter into this Agreement and to sell the Property,
Buyer hereby makes the following representations, warranties and covenants, upon
each of which Buyer acknowledges and agrees that Seller is entitled to rely and
has relied:
4.1 ORGANIZATION AND POWER. Buyer is duly formed or organized, validly
existing and in good standing under the laws of the state of its formation and
has all governmental licenses, Authorizations, consents and approvals required
to carry on its business as now conducted and to enter into and perform its
obligations under this Agreement and any document or instrument required to be
executed and delivered on behalf of Buyer under this Agreement.
4.2 NONCONTRAVENTION. The execution and delivery of this Agreement and
the performance by Buyer of its obligations hereunder do not and will not
contravene, or constitute a default under, any provisions of applicable law or
regulation, or any agreement, judgment, injunction, order, decree or other
instrument binding upon Buyer or result in the creation of any lien or other
encumbrance on any asset of Buyer.
4.3 LITIGATION. There is no action, suit or proceeding, pending or known
to be threatened, against or affecting Buyer in any court or before any
arbitrator or before any administrative panel or otherwise that (a) could
materially and adversely affect the business, financial position or results of
operations of Buyer, or (b) could materially and adversely affect the ability of
Buyer to perform its obligations under this Agreement, or under any document to
be delivered pursuant hereto.
4.4 BANKRUPTCY. No Act of Bankruptcy has occurred with respect to Buyer.
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 5.1.1 will be, duly authorized by all necessary action on
the part of Buyer, has been duly executed and delivered by Buyer, constitutes
the
21
valid and binding agreement of Buyer and is enforceable against Buyer in
accordance with its terms. All action required pursuant to this Agreement
necessary to effectuate the transactions contemplated herein has been, or will
at Closing be, taken promptly and in good faith by Buyer and its representatives
and agents.
ARTICLE 5
CONDITIONS AND ADDITIONAL COVENANTS
5.1 AS TO BUYER'S OBLIGATIONS. Buyer's obligations under this Agreement
are subject to the satisfaction of the following conditions precedent and the
compliance by Seller with the following covenants:
(a) SELLER 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 required to be delivered pursuant to Section 6.2 of this Agreement.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS. All of Seller's
representations and warranties made in this Agreement shall be true and correct
in all material respects 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. Subject to the payment of the appropriate
premium, Buyer shall be able to obtain the Owner's Title Policy, subject only to
the Permitted Title Exceptions.
(d) TITLE TO PROPERTY. Seller shall be the sole owner of good and
marketable fee simple title (or ground lease interest, as applicable) to the
Real Property and to the Tangible Personal Property, free and clear of all
liens, encumbrances, restrictions, conditions and agreements except for
Permitted Title Exceptions. Seller shall not have taken any action or permitted
or suffered any action to be taken by others from the Effective Date and through
and including the Closing Date that would adversely affect the status of title
to the Real Property or to the Tangible Personal Property.
(e) CONDITION OF PROPERTY. Subject to the provisions of Section 7.2,
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,
22
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.
(g) LIQUOR LICENSE. Seller and Seller's principals and Buyer, or
Buyer's nominee, shall have cooperated with each other, and each shall have
executed such transfer forms, license applications and other documents as may be
necessary to effect the obtaining of the liquor licenses, alcoholic beverage
licenses and other Authorizations required hereby.
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.
5.1.1 AS TO SELLER'S OBLIGATIONS. Seller's obligations under this are
subject to the satisfaction of the following conditions precedent and the
compliance by Buyer with the following covenants:
(a) BUYER'S DELIVERIES. Buyer shall have delivered to or for the
benefit of Seller, on or before the Closing Date, all of the documents and
payments required of Buyer pursuant to this Agreement.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS. All of Buyer's
representations and warranties made in this Agreement shall be true and correct
as of the Effective Date and as of the Closing Date as if then made and Buyer
shall have performed all of its covenants and other obligations under this
Agreement.
Each of the conditions and additional covenants contained in this Section are
intended for the benefit of Seller and may be waived in whole or in part, by
Seller, but only by an instrument in writing signed by Seller.
23
ARTICLE 6
CLOSING
6.1 CLOSING. Closing shall be held at 9:00 a.m., New York time, at the
offices of Escrow Agent on January 2, 1998, as such date may be extended by
mutual agreement of Buyer and Seller. 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 affidavits or other documents as may be
customarily required by the Title Company to issue the Owner's Title Policy
including those endorsements reasonably 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.
(h) ORGANIZATIONAL DOCUMENTS. Copies of Seller's Organizational
Documents certified by Seller.
(i) PARTNER'S DOCUMENTS. Approvals and consents of the partners of
Seller and their partners, 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
24
appropriate resolutions of the partners of Seller, as the case may be together
with good standing certificates of Seller's general partners.
(j) ASSIGNMENT OF CONTRACTS. As assignment of the leases, contracts
and agreements described in EXHIBIT H (except for item no. 1) in the form
attached hereto as EXHIBIT M (the "Assignment of Contracts").
(k) ASSIGNMENT OF FACILITIES AGREEMENT. An assignment of the golf
facilities agreement described as item no. 1 in EXHIBIT H in the form attached
hereto as EXHIBIT N.
(l) CERTIFICATE OF OCCUPANCY. To the extent in existence, a valid,
final and unconditional certificate of occupancy for the Real Property and
Improvements, issued by the appropriate Governmental Body allowing for the use
of the Real Property as a golf course and permitting the continued operation of
the improvements as presently operated.
(m) IMPROVEMENT PLANS. To the extent available, a set or copies of
the plans and specifications for the Improvements.
(n) COMMUNICATION; ADDRESSES. A written instrument executed by
Seller, conveying and transferring to Buyer all of Seller's right, title and
interest in any telephone numbers, fax numbers or internet or electronic mail
addresses (if applicable) relating solely to the Property, and, if Seller
maintains a post office box solely with respect to the Property, conveying to
Buyer all of its interest in and to such post office box and the number
associated therewith, so as to assure a continuity in operation and
communication.
(o) TAX BILLS. All current real estate and personal property tax
bills in Seller's possession or under its control.
(p) SURVEYS. All surveys and plot plans of the Real Property in
possession of or in the control of Seller.
(q) TOURNAMENT SCHEDULE. A complete list of all scheduled
tournaments, functions and the like, in reasonable detail.
(r) ACCOUNTS RECEIVABLE. A list of Seller's outstanding accounts
receivable as of midnight on the date prior to the Closing, specifying the name
of each account and the amount due Seller.
(s) PAYOFF STATEMENT. A payoff or beneficiary statement prepared by
the holder of Mortgage Indebtedness setting forth the amount, including accrued
interest, outstanding principal balance, escrow accounts held by the holder of
the Mortgage Indebtedness and any other amounts outstanding and prepayment
penalties, with respect to the Mortgage Indebtedness.
25
(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) LETTER FROM CONTRACTOR. A letter from the Contractor certifying
that all Remediation Work performed prior to Closing has been paid for by
Seller, specifying the scope of Remediation Work still to be performed under the
Contract and reciting the amount remaining to be paid under the Contract for
completion of the Remediation Work.
(v) MISCELLANEOUS. Any other document or instrument reasonably
requested by Buyer with respect to the Property.
6.3 BUYER'S DELIVERIES. At Closing, Buyer shall pay or deliver to Seller
the following:
(a) PURCHASE PRICE. The Purchase Price by federal funds wire to an
account designated by Seller, net of the Mortgage Indebtedness if the same is to
be assumed.
(b) ASSIGNMENT OF CONTRACTS. A countersigned copy of the Assignment
of Contracts.
(c) ASSIGNMENT OF FACILITIES AGREEMENT. A countersigned copy of the
Assignment of Facilities Agreement.
(d) ASSUMPTION AGREEMENT. An assumption of the Mortgage Indebtedness
together with all other documents reasonably requested from Buyer by the holder
of the Mortgage Indebtedness, unless the Mortgage Indebtedness is to be
satisfied on the Closing Date.
(e) 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
26
theretofore executed and delivered. Seller shall cause Seller's principals to
join in the transfer application, if required by the state of Florida.
(c) MISCELLANEOUS. Such other and further documents, papers and
instruments as may be reasonably required by the parties hereto, their
respective counsel or the Title Company.
6.5 CLOSING COSTS. Each party hereto shall pay its own legal fees and
expenses. All filing fees for the Deed and the real estate transfer taxes
(documentary stamps), or other similar taxes due with respect to the transfer of
title shall be paid by Seller and all charges for title insurance premiums shall
be paid by Buyer. . Seller shall pay for any costs associated with any
corrective instruments, and for the cost of any due diligence reports and
surveys (except for the Survey) prepared by or for Buyer with respect to the
Property (copies of which have previously been delivered to Buyer as provided in
Section 2.2(e) of this Agreement).
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 January 1, 1998, and
Buyer shall be entitled to all income and shall be responsible for all expenses
for the period of time from, after and including January 1, 1998. 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. Current and prepaid rents or fees, including,
without limitation, prepaid Golf Club membership fees, function receipts and
other reservation receipts.
(b) TAXES. Real estate and personal property taxes.
(c) UTILITIES. Utility charges (including but not limited to charges
for water, sewer and electricity).
(d) FUEL. Value of fuel stored on the Property at the price paid for
such fuel by Seller, including any taxes.
(e) MUNICIPAL IMPROVEMENT LIENS. Municipal improvement liens where
the work has physically commenced
27
(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 and utility
deposits, where transferable.
(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 January 1, 1998,
in accordance with Section 6.6. If Buyer elects to assume the Mortgage
Indebtedness, Buyer shall pay to Seller at Closing an amount equal to the amount
of any real estate tax or insurance impound account maintained by the holder of
the Mortgage Indebtedness as security for the performance of Seller's
obligations under the documents securing the Mortgage Indebtedness, provided
such amount is confirmed in writing by the holder of the Mortgage Indebtedness.
Seller shall disclose to Buyer the amount of any such escrows at least twenty
(20) days prior to Closing.
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 ACCOUNTS RECEIVABLE/CASH. Seller shall be entitled to retain (and the
same shall not be deemed included in the sale to Buyer) all accounts receivable
and cash attributable to events and operations at the Property for the period
prior to January 1, 1998. Buyer shall be entitled to a credit at Closing for
all deposits and prepaid items (I.E., membership dues, deposits, etc.) for
periods after December 31, 1997.
6.9 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. Seller shall
retain the right to collect all accounts receivable to which it is entitled
following Closing.
(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
28
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 7
GENERAL PROVISIONS
7.1 CONDEMNATION. In the event of any actual taking or threatened taking
(by written notice to Seller), 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 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. In the event that damage or
destruction of the Property, or any part thereof, by fire or other casualty
occurs prior to Closing which is in excess of Three Hundred Thousand Dollars
($300,000) Buyer shall, within ten (10) days after receipt from Seller of
written notice of the occurrence of such damage or destruction elect, in
writing, at its option, one of the following:
(a) To terminate this Agreement, in which event each party shall be
released from all obligations hereunder, and the Deposit shall immediately be
returned to Buyer;
(b) To accept from Seller the assignment of any insurance proceeds
payable by reason of such damage or destruction and proceed with Closing.
In the event that damage or destruction occurs prior to Closing which is less
than Three Hundred Thousand Dollars ($300,000), then Seller shall (i) assign to
Buyer any insurance proceeds payable by reason of such damage or destruction,
and (ii) give Buyer a credit against the Purchase Price in the amount of any
deductible in connection with such insurance, and Buyer and Seller shall proceed
with Closing.
29
7.3 REAL ESTATE BROKER. Except for Barrington Financial Advisors, Inc.
("Broker"), Seller and Buyer each warrant and represent that it has not dealt
with any other real estate broker in connection with this transaction. Each
party shall indemnify the other and save and hold each other 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 the indemnifying party or as a result of having introduced such party to
the Property or the other party, but Buyer will not indemnify Seller against any
fees owed, or claimed to be owed, to Broker. Seller accepts sole financial
responsibility for Broker and shall pay all fees due Broker pursuant to a
separate agreement with Broker. 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 (a) the Company
is a public company and will make a public announcement concerning this
transaction and that the Company anticipates that it will seek to sell shares of
its common stock and other securities (collectively, the "Securities") to the
general public pursuant to a public offering and that in connection therewith,
Buyer will have the absolute right to market the Securities and prepare and file
all necessary or required registration statements, and other papers, documents
and instruments necessary or required in Buyer's judgment and that of its
attorneys and underwriters to file a registration statement with respect to the
Securities with the SEC and/or similar state authorities and to cause same to
become effective and to disclose therein and thus to its underwriters, to the
SEC and/or to similar state authorities and to the public all of the terms,
conditions and provisions of this Agreement, and (b) after Closing, both Seller
and Buyer may disclose, without the consent of the other, the transfer of the
Property, the name of Buyer and Seller and the Purchase Price. 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
30
with the other, and each shall execute such transfer forms, license applications
and other documents as may be necessary to effect such transfer at Buyer's
expense. 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, by exercising management and supervision of such facilities until
such time under Seller's licenses, provided, however, that Buyer shall indemnify
and hold Seller harmless from any liability, damages or claims encountered in
connection with such operations during said period of time, except for Seller's
gross negligence or willful misconduct.
ARTICLE 8
LIABILITY OF BUYER; INDEMNIFICATION BY SELLER;
TERMINATION RIGHTS
8.1 LIABILITY OF BUYER. Except for any obligation expressly assumed or
agreed to be assumed by Buyer under this Agreement, Buyer does not assume any
obligation of Seller or any liability for claims arising out of any occurrence
prior to Closing.
8.2 INDEMNIFICATION BY SELLER. Seller hereby indemnifies and holds Buyer
harmless from and against any and all claims, costs, penalties, damages, losses,
liabilities and expenses (including reasonable attorneys' fees) that may at any
time be incurred by Buyer, whether before or after Closing, as a result of any
breach by Seller of any of its representations, warranties, covenants or
obligations set forth herein or in any other document delivered by Seller
pursuant hereto which are intended to survive Closing, 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 INDEMNIFICATION BY BUYER. Buyer hereby indemnifies and holds Seller
harmless from and against any and all claims, costs, penalties, damages, losses,
liabilities and expenses (including reasonable attorneys' fees) that may at any
31
time be incurred by Seller, 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 Buyer
pursuant hereto which are intended to survive Closing, 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.
8.4 TERMINATION BY BUYER. If any condition set forth herein for the
benefit of Buyer cannot or will not be satisfied prior to Closing, or upon the
occurrence of any other event that would entitle Buyer to terminate this
Agreement and its obligations under this Agreement, and Seller fails to cure any
such matter within ten (10) business days after notice thereof from Buyer,
Buyer, at its option, may elect either (a) to terminate this Agreement and all
other rights and obligations of Seller and Buyer under this Agreement shall
terminate immediately and Escrow Agent shall promptly return the Deposit to
Buyer, or (b) to waive its right to terminate (waiving any breach or default on
the part of Seller) and, instead, to proceed to Closing. If Buyer terminates
this Agreement as a consequence of a misrepresentation or breach of a warranty
or covenant by Seller, or a failure by Seller to perform its obligations under
this Agreement, then Buyer shall retain all remedies accruing as a result
thereof, including, without limitation, specific performance; provided, however,
in an action for damages, Buyer shall be limited to recovering its actual
out-of-pocket damages, including all due diligence costs and third party costs,
including attorneys' fees, up to a maximum amount of $750,000, provided such
limitation will not limit any damages based on a claim for intentional breach by
reason of refusal to transfer title to the Property. In no event shall Seller
be liable for any damages for any breach of any representations and warranties
disclosed in any written instrument delivered to Buyer prior to the Effective
Date.
8.5 TERMINATION BY SELLER. IN THE EVENT THAT THIS TRANSACTION DOES NOT
CLOSE AS A CONSEQUENCE OF DEFAULT BY BUYER, SELLER MAY TERMINATE THIS AGREEMENT
BY WRITTEN NOTICE TO BUYER, AND BUYER SHALL PAY TO SELLER, AS LIQUIDATED
DAMAGES, THE DEPOSIT AND EACH PARTY'S OBLIGATIONS AND LIABILITIES UNDER THIS
AGREEMENT SHALL TERMINATE, EXCEPT TO THE EXTENT OF BUYER'S INDEMNITY OBLIGATIONS
UNDER SECTION 2.2(a) OF THIS AGREEMENT. THE PARTIES AGREE THAT (A) SELLER'S
ACTUAL DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE IF BUYER DEFAULTS,
(B) THE DEPOSIT IS THE BEST ESTIMATE OF THE AMOUNT OF DAMAGES SELLER WOULD
SUFFER, AND (C) THE PAYMENT OF THE DEPOSIT TO SELLER AS LIQUIDATED DAMAGES IS
NOT A PENALTY. THE DEPOSIT SHALL BE THE AMOUNT THAT SELLER IS ENTITLED TO
RECEIVE AS LIQUIDATED DAMAGES; AND SELLER SHALL HAVE NO RIGHT, AND HEREBY WAIVES
THE RIGHT, TO AN ACTION FOR SPECIFIC PERFORMANCE OF THIS AGREEMENT OR ANY OTHER
REMEDY AVAILABLE AT LAW OR IN EQUITY. THE PARTIES WITNESS THEIR AGREEMENT TO
THIS LIQUIDATED DAMAGES PROVISION AND SELLER'S WAIVER OF SPECIFIC PERFORMANCE BY
INITIALING THIS SECTION BELOW.
Seller: /s/R. Scott Ireland Buyer:
------------------------- --------------------------
President
32
8.6 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 recover its
costs of prosecuting and/or defending same, including, without limitation,
reasonable attorneys' fees at trial and all appellate levels.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 COMPLETENESS; MODIFICATION. This Agreement constitutes the entire
agreement between the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior discussions, understandings,
agreements and negotiations between the parties hereto. This Agreement may be
modified only by a written instrument duly executed by the parties hereto.
9.2 ASSIGNMENTS. Buyer may assign its rights under this Agreement to an
Affiliate of Buyer without the consent of Seller. 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.
33
9.7 SEVERABILITY. If any term, covenant or condition of this Agreement,
or the application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term, covenant or condition to other persons or circumstances, shall not be
affected thereby, and each term, covenant or condition of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
9.8 COSTS. Regardless of whether Closing occurs under this Agreement, and
except as otherwise expressly provided in this Agreement, each party to this
Agreement shall be responsible for its own costs in connection with this
Agreement and the transactions contemplated hereby, including without
limitation, fees of attorneys, engineers and accountants.
9.9 NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be delivered by hand,
transmitted by facsimile transmission, sent prepaid by Federal Express (or a
comparable overnight delivery service) or sent by the United States mail,
certified, postage prepaid, return receipt requested, at the addresses and with
such copies as on the Summary Sheet or to such other address as the intended
recipient may have specified in a notice to the other party. Any party hereto
may change its address or designate different or other persons or entities to
receive copies by notifying the other party and Escrow Agent in a manner
described in this Section. Any notice, request, demand or other communication
delivered or sent in the manner aforesaid shall be deemed given or made (as the
case may be) when actually delivered to the intended recipient.
9.10 INCORPORATION BY REFERENCE. All of the exhibits attached hereto are
by this reference incorporated herein and made a part hereof.
9.11 NO PARTNERSHIP. This Agreement does not and shall not be construed to
create a partnership, joint venture or any other relationship between the
parties hereto except the relationship of Seller and Buyer specifically
established hereby.
9.12 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, to the extent the same are customarily used in
Broward County, Florida for the transfer of property similar to the Property.
9.13 CONFIDENTIALITY. Any confidential information delivered by Seller to
Buyer under this Agreement shall be used
34
solely for the purpose of acquiring the Property and Buyer will keep such
information confidential; provided Buyer shall have the right to provide such
information to its consultants and advisors and to disclose such information as
Buyer determines is necessary or appropriate in connection with any public
offering of the Securities. If Buyer does not acquire the Property, it shall
deliver to Seller all copies of all due diligence information delivered to Buyer
by Seller. Seller agrees to keep confidential the terms and conditions of this
Agreement provided, Seller shall have the right to provide such information to
its consultants and advisors and, after the Closing, may disclose the name of
Buyer and the Purchase Price.
9.14 RADON DISCLOSURE. In accordance with Section 404.056(7) of Florida
Statutes, Buyer is advised that radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from the county public health unit. The foregoing disclosure is
provided to comply with state law and is for informational purposes only.
Seller represents that it has not conducted radon testing with respect to the
Property, is not aware of any specific radon problems at the Property and
specifically disclaims any and all representations and warranties as to the
absence of radon gas or radon producing conditions in connection with any
building and the Property.
35
IN WITNESS WHEREOF, Seller and Buyer have hereunder affixed their
signatures to this Purchase and Sale Agreement, all as of the 26th day of
November 1997.
"BUYER"
GOLF TRUST OF AMERICA, L.P., A DELAWARE LIMITED
PARTNERSHIP
By: GTA GP, Inc., a Maryland
corporation
Its: General Partner
By: /s/W. Bradley Blair, II
--------------------------------
Its: President
--------------------------------
"SELLER"
BONAVENTURE COUNTRY CLUB ASSOCIATES,
A FLORIDA GENERAL PARTNERSHIP
BY: IRELAND HOTEL & SPA, LTD., PARTNER
BY: IRELAND HOTEL & SPA, INC.,
GENERAL PARTNER
By: /s/R. Scott Ireland
---------------------------------
R. Scott Ireland, President
S-1