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REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
BY AND BETWEEN
ARADON CORPORATION,
A CALIFORNIA CORPORATION
AS SELLER
AND
GOLF TRUST OF AMERICA, L.P.,
A DELAWARE LIMITED PARTNERSHIP
AS BUYER
JANUARY 9, 1998
RELATING TO CERTAIN REAL PROPERTY
LOCATED IN THE COUNTY OF SANTA BARBARA
(AREA OF GOLETA), STATE OF CALIFORNIA
KNOWN AS "SANDPIPER GOLF COURSE"
AND CERTAIN ADJACENT REAL PROPERTY
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TABLE OF CONTENTS
SECTION PAGE
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1. PURCHASE AND SALE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1 Agreement to Buy and Sell. . . . . . . . . . . . . . . . . . . . . . . .1
1.2 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.3 Payment of Purchase Price. . . . . . . . . . . . . . . . . . . . . . . .2
1.4 Escrow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.5 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.6 Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
2. ACTIONS PENDING CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.1 Due Diligence Limited. . . . . . . . . . . . . . . . . . . . . . . . . .3
2.2 Buyer's Termination. . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.3 Seller's Termination . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.4 No Processing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
3. ADDITIONAL AGREEMENTS OF THE PARTIES. . . . . . . . . . . . . . . . . . . . . .5
3.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . .5
3.2 Reaffirmation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
3.3 Hazardous Material Release . . . . . . . . . . . . . . . . . . . . . . .6
3.4 Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
3.5 Damage or Destruction. . . . . . . . . . . . . . . . . . . . . . . . . .8
3.6 Development Conditions . . . . . . . . . . . . . . . . . . . . . . . . .8
3.7 Plaque . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
3.8 Golf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
4. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
4.1 Deposits Into Escrow . . . . . . . . . . . . . . . . . . . . . . . . . .9
4.2 Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
4.3 Payment of Closing Costs . . . . . . . . . . . . . . . . . . . . . . . 10
4.4 Closing of Escrow. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.5 Failure to Close; Cancellation . . . . . . . . . . . . . . . . . . . . 11
4.6 LIQUIDATED DAMAGES . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.7 Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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5. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.1 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.2 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.3 Legal Advice; Neutral Interpretation; Headings . . . . . . . . . . . . 12
5.4 Choice of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.5 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.6 Waiver of Covenants, Conditions or Remedies. . . . . . . . . . . . . . 13
5.7 Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.8 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.9 Relationship of Parties. . . . . . . . . . . . . . . . . . . . . . . . 13
5.10 Third Party Benefit. . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.11 Time of the Essence. . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.12 Further Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.13 Recordation; Actions to Clear Title. . . . . . . . . . . . . . . . . . 13
5.14 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.15 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.16 Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.17 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.18 Manner of Giving Notice. . . . . . . . . . . . . . . . . . . . . . . . 15
5.19 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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EXHIBIT LIST
EXHIBIT DESCRIPTION REFERENCE
Exhibit "A-1" LEGAL DESCRIPTION OF
SANDPIPER GOLF COURSE. . . . . . . . . Section 1.1.1
Exhibit "A-2" LEGAL DESCRIPTION OF THE
14-ACRE PROPERTY . . . . . . . . . . . Section 1.1.1
Exhibit "B" DEVELOPMENT . . . . . . . . . . . . . . . . Section 1.1.3
Exhibit "C" DISCLOSURES . . . . . . . . . . . . . . . . Section 2.1
Exhibit "D" ARCO AMENDMENT. . . . . . . . . . . . . . . Section 3.3.5
Exhibit "E" ARCO ASSUMPTION . . . . . . . . . . . . . . Section 3.3.5
Exhibit "F-1" GOLF COURSE GRANT DEED. . . . . . . . . . . Section 4.1.1(a)
Exhibit "F-2" 14-ACRE GRANT DEED. . . . . . . . . . . . . Section 4.1.1(a)
Exhibit "G" BILL OF SALE . . . . . . . . . . . . . . . Section 4.1.1(e)
Exhibit "H-1" TITLE EXCEPTIONS
GOLF COURSE PROPERTY. . . . . . . . . . . . Section 4.4.1
Exhibit "H-2" TITLE EXCEPTIONS
FOURTEEN ACRE PROPERTY. . . . . . . . . . . Section 4.4.1
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REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS REAL PROPERTY PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
(this "AGREEMENT") is entered into as of January 9, 1998 (the "EFFECTIVE
DATE"), by and between ARADON CORPORATION, a California corporation (the
"SELLER"), and GOLF TRUST OF AMERICA, L.P., a Delaware limited partnership
(the "BUYER").
RECITALS:
A. Seller is the fee owner of that certain real property located in
the County of Santa Barbara, State of California, consisting of (i) an
18-hole golf course (including club house and parking facilities) commonly
known as Sandpiper Golf Course, situated upon approximately 196 acres
(included within this site is an approximately 17.4 acre development site)
(the "GOLF COURSE"), and (ii) certain real property of approximately fourteen
(14) acres currently zoned for a housing site (the "FOURTEEN ACRES").
B. Buyer now desires to purchase that property, and Seller desires to
sell that property on the terms and conditions contained in this Agreement.
C. S. Piper Corporation, a California corporation ("SPC") is the
ground lessee of the golf course property pursuant to a lease dated December
30, 1994 (the "GROUND LEASE"). Concurrently with and conditioned upon the
"Closing"(as defined below), SPC is entering into an agreement with Buyer
(the "SPC AGREEMENT") terminating the Ground Lease with Seller and selling
SPC's assets to Buyer.
D. Sandpiper's Nineteenth Hole, Inc., a California corporation ("19TH
HOLE") operates the food and liquor concessions (the "CONCESSIONS") at the
Golf Course pursuant to a February 10, 1995 Gross Sublease/Concession
Agreement between 19th Hole and Seller (the "CONCESSION AGREEMENT").
Concurrently with and conditioned upon the Closing, 19th Hole is entering
into an agreement with Buyer (the "19TH HOLE AGREEMENT") terminating the
Concession Agreement with Seller and selling 19th Hole's assets to Buyer.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, Buyer and Seller agree as follows:
1. PURCHASE AND SALE
1.1 AGREEMENT TO BUY AND SELL. Subject to all of the terms and
conditions of this Agreement, and subject to and conditioned upon the
concurrent termination of the Ground Lease by Seller, the termination of the
Concession Agreement by Seller and the closing of the SPC Agreement and the
19th Hole Agreement, Seller hereby agrees to sell and convey to Buyer and
Buyer hereby agrees to acquire and purchase from Seller the following (all of
which are collectively called the "PROPERTY" in this Agreement):
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1.1.1 All of Seller's right, title and interest in those
certain parcels of real property (collectively, the "LAND") described on
EXHIBIT "A-1" (the "GOLF COURSE") and EXHIBIT "A-2" (the "FOURTEEN ACRES"),
attached hereto and made a part hereof, and all of Seller's right, title and
interest in and to all easements, rights and privileges appurtenant thereto,
water and water rights, development rights and permits, including any right,
title and interest of Seller in and to adjacent streets, alleys or rights of
way, together with all of Seller's right, title and interest in and to all
improvements, structures, equipment and fixtures currently located on the
land, but specifically excluding oil, gas and mineral rights, with no right
of surface entry.
1.1.2 All of Seller's right, title and interest in all
improvements, structures and fixtures (collectively, the "IMPROVEMENTS") now
or hereafter located on the Land.
1.1.3 All of Seller's right, title and interest in and to all
tangible personal property, if any, located on, affixed to or pertaining to
the Land or the Improvements and used in connection with the ownership,
operation or maintenance thereof, together with all intangible property now
or hereafter owned or held by Seller in connection with the Land or the
Improvements (collectively, the "PERSONAL PROPERTY"), including, without
limitation, studies, reports, permits, development rights, applications,
authorizations and all other entitlements, covering the housing development
(the "DEVELOPMENT"), including, but not limited to, those described in
EXHIBIT "B" attached hereto and made a part hereof or otherwise.
1.1.4 All of Seller's right, title and interest, if any, in
and to any and all leases, service contracts, landscaping contracts,
maintenance agreements, construction contracts, architect's agreements,
parking agreements, consultant agreements, warranties, guaranties, management
contracts, bonds and all other contracts and agreement relating to the
Property.
1.2 PURCHASE PRICE. The purchase price of the Property shall be
TWENTY FIVE MILLION SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($25,750,000) (the
"PURCHASE PRICE").
1.3 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be payable
as follows:
1.3.1 On Monday, January 12, 1998, Buyer shall deposit into
"Escrow" (defined below) TWO MILLION DOLLARS ($2,000,000) (the "DEPOSIT") by
certified check or wire transfer of federal funds, or in another immediately
available form. Buyer may not make any announcements, interview employees or
enter onto the Golf Course until Seller is in receipt of such funds. Subject
to Section 2.1, as set forth below, prior to the Effective Date, Buyer has
completed, to its satisfaction, its due diligence of the Property and of all
matters relating to the Property and has either approved in writing the same
or waived in writing its objections thereto, and, therefore, as of the
"Decision Date" (as defined below), the Deposit shall be non-refundable to
Buyer. Unless Buyer has previously terminated this Agreement pursuant to
Section 2.2, then, provided Seller is not in default, on the Decision Date,
without requiring further instructions from Buyer or Seller, "Escrow Holder"
(as defined below) shall release to the Seller the entire Deposit plus
interest accrued thereon while in Escrow by wire transfer in accordance with
wiring instructions to be provided to Escrow Holder by Seller. The Deposit,
interest accrued thereon while in Escrow and a sum equal to the interest that
would have additionally been earned while in Escrow until the Closing shall
be applied
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to the Purchase Price upon Closing. The Escrow Holder shall be entitled to
comply with this instruction without receipt of further instructions from the
Buyer or the Seller.
1.3.2 At least one (1) business day prior to the Closing
Date, Buyer shall deposit into Escrow the balance of the Purchase Price
(approximately $23,750,000), subject to adjustment by reason of any
applicable prorations and the allocation of closing costs described below and
subject to all of the terms and conditions of this Agreement. The deposit
required by this paragraph shall be made by wire transfer of federal funds or
in another immediately available form.
1.4 ESCROW. On the Effective Date, an escrow (the "ESCROW") shall be
opened with the Escrow Division of Chicago Title Insurance Company, whose
address is 2222 South Broadway, Suite G, Santa Maria, California 93454,
Attention: Cindy Ioimo, Escrow Officer ("ESCROW HOLDER"). The terms and
conditions set forth in this Agreement shall constitute both an agreement
between Seller and Buyer and escrow instructions for Escrow Holder.
1.5 CLOSING. As used in this Agreement, "Closing" means the
recordation of the "Deed" (as defined below) with the Office of the County
Recorder in the County of Santa Barbara, State of California in accordance
with the terms of this Agreement.
1.6 CLOSING DATE. Subject to the terms and conditions of this
Agreement, Escrow shall close on March 2, 1998 (the "CLOSING DATE"). Seller
has advised Buyer that this transaction must occur on the first (1st)
business day of a month in order for SPC to be able to pay off the existing
loan on the Property with Textron Financial Corporation (the "TEXTRON LOAN").
2. ACTIONS PENDING CLOSING
2.1 LIMITED DUE DILIGENCE. Except as set forth in this Section 2.1,
Buyer agrees that it has completed its due diligence investigation of the
Property, and that upon execution of this Agreement it shall have no further
right to terminate this Agreement or receive a refund of the Deposit due to
the condition of the Property, the Personal Property, or any matters relating
thereto. Buyer acknowledges that, prior to the Effective Date of this
Agreement, Seller has disclosed to Buyer the items listed on EXHIBIT "C"
attached hereto. Notwithstanding the foregoing, prior to the thirtieth
(30th) day from the Effective Date (the "DECISION DATE") Buyer shall confirm
to its reasonable satisfaction only the following:
2.1.1 that no material adverse change has occurred in the
condition of Property solely with respect to the environmental condition
represented in the "Reports" (as defined in Exhibit "C");
2.1.2 that no material adverse change has occurred in the
condition of Property solely with respect to the ALTA survey prepared by
Penfield & Smith dated 1990 ("SURVEY").
2.1.3 that the accountant prepared financials for years 1996
and 1997 provided by Seller to Buyer do not overstate total sales by greater
than ten percent (10%) in the aggregate and/or understate total expenses by
ten percent (10%) in the aggregate.
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In that regard, prior to the Decision Date, Buyer shall either waive the
foregoing condition(s) or cause an updated Phase I to be prepared, a limited
Survey to be prepared and an audit to be prepared. In order for Buyer to be
entitled to terminate this Agreement pursuant to this Section, such updates
or audit must indicate that a new material adverse condition(s) has occurred
since the last date of the Reports and/or the Survey, respectively, and such
material adverse condition was not referred to in the Reports or the Survey
or that total sales were overstated by greater than 10% or total expenses
understated by greater than 10%. If Buyer determines in its reasonable
discretion that such updates do reflect a new material adverse condition, or
such overstatement or understatement does in fact exist, then Buyer may
terminate this Agreement pursuant to Section 2.2. The truth and accuracy of
Section 2.1.1 shall be applicable also as a condition to Closing. If such a
material adverse condition were to occur prior to Closing, the Seller may, at
its option, terminate this Agreement pursuant to Section 2.2 below.
2.2 BUYER'S TERMINATION. Buyer shall have the right to terminate
this Agreement only in the event of a material default hereunder or under the
SPC Agreement or under the 19th Hole Agreement by Seller or pursuant to
Sections 2.1, 3.3.5, 3.4, 3.5 or 3.6 below. Except as provided in this
Section, Buyer shall have no right to terminate this Agreement as a result of
the condition of the Property, title to the Property, the Personal Property
or any matters relating thereto. If Buyer elects to terminate this Agreement
as a result of a material default by Seller or pursuant to Sections 2.1,
3.3.5, 3.4, 3.5 or 3.6 below, Buyer shall give Seller and Escrow Holder
written notice that Buyer elects to terminate this Agreement. In the event
Buyer elects to terminate this Agreement pursuant to this Section 2.2, Escrow
or Seller, as applicable, shall return to Buyer the Deposit with interest and
deemed interest, if applicable; Buyer shall deliver to Seller a duly executed
and acknowledged quitclaim deed as described in Section 5.13 below; Buyer
shall pay all title and escrow charges; unless due to Seller's material
default, in which case Seller shall pay same; Buyer shall have no further
right to purchase the Property; and neither party shall thereafter have any
further rights or obligations under this Agreement unless expressly provided
otherwise herein.
2.3 SELLER'S TERMINATION. Seller shall deliver to Buyer written
notice of any material default by Buyer. Buyer shall have seven (7) days
from the date of Seller's notice to cure such default. If Buyer has not
cured such default within such seven (7) day period, then Seller may
terminate this Agreement pursuant to this Section 2.3. If Seller elects to
terminate this Agreement because of an uncured material default by Buyer, the
termination of the SPC Agreement or the termination of the 19th Hole
Agreement, then Seller shall give Buyer and Escrow Holder written notice that
Seller elects to terminate this Agreement. In the event Seller elects to
terminate this Agreement pursuant to this Section 2.3, Seller shall retain
the Deposit as liquidated damages in accordance with Section 4.6; Buyer shall
deliver to Seller a duly executed and acknowledged quitclaim deed as
described in Section 5.13 below; Buyer shall pay all title and escrow
charges; Buyer shall have no further right to purchase the Property; and
neither party shall thereafter have any further rights or obligations under
this Agreement unless expressly provided otherwise herein.
2.4 NO PROCESSING. Until the Closing Date, without Seller's prior
written consent, which shall not be unreasonably withheld or delayed, Buyer
shall not make any application to any governmental agency for any permit,
approval, license or other entitlement for the Property or the use or
development thereof.
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3. ADDITIONAL AGREEMENTS OF THE PARTIES
3.1 REPRESENTATIONS AND WARRANTIES.
3.1.1 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer hereby
represents, warrants and covenants to and agrees with Seller as follows:
(a) BUYER'S INVESTIGATION. (i) Except as
otherwise provided herein, there are no representations or warranties of any
kind whatsoever, express or implied, made by Seller in connection with this
Agreement, the purchase of the Property by Buyer, the physical condition of
the Property or whether the Property is appropriate for Buyer's intended use;
(ii) Prior to the Effective Date hereof, Buyer, has to its satisfaction,
fully investigated the Property and all matters pertaining thereto; (iii)
Except as otherwise provided herein, Buyer is not relying on any statement or
representation of Seller, its agents or its representatives nor on any
information supplied by Seller, its agents or its representatives, except as
expressly provided in this Agreement; (iv) Buyer, in entering into this
Agreement and in completing its purchase of the Property, is relying entirely
on its own investigation of the Property, including the documents delivered
to Buyer hereunder, based on its extensive experience in and knowledge of
real property; (v) prior to the Decision Date hereof, Buyer has become aware,
to its satisfaction, of all zoning regulations, other governmental
requirements, site and physical conditions, and other matters affecting the
use and condition of the Property; and (vi) Buyer shall purchase the Property
in "AS IS" condition as of the date of Closing.
(b) AUTHORITY. Buyer is a Delaware limited
partnership duly formed and validly existing in the State of Delaware, and
will be qualified to do business in the State of California to the extent
necessary to do business. Buyer has the power and authority to own the
Property and to consummate the transactions contemplated by this Agreement.
This Agreement and all instruments, documents and agreements to be executed
by Buyer in connection herewith are or when delivered shall be duly
authorized, executed and delivered by Buyer and are valid, binding and
enforceable obligations of Buyer. Each individual executing this Agreement
on behalf of Buyer represents and warrants to Seller that he or she is duly
authorized to do so.
(c) CONSENTS. Buyer is not required to obtain any
consents or approvals to consummate the purchase of the Property contemplated
in this Agreement.
3.1.2 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller
hereby represents, warrants and covenants to and agrees with Buyer and Golf
Trust of America, Inc. as follows:
(a) AUTHORITY. Seller is a corporation duly
formed and validly existing in the State of California. Seller has the power
and authority to sell the Property and to consummate the transactions
contemplated by this Agreement. This Agreement and all instruments, documents
and agreements to be executed by Seller in connection herewith are or when
delivered shall be duly authorized, executed and delivered by Seller and are
valid, binding and enforceable obligations of Seller. Each individual
executing this Agreement on behalf of Seller represents and warrants to Buyer
that he or she is duly authorized to do so.
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(b) CONSENTS. Except as provided in Section 3.3.5
and except for SPC's and 19th Hole's concurrent closing and Ground Lease and
Concession Agreement terminations, Seller is not required to obtain any
consents or approvals to consummate the transactions contemplated in this
Agreement.
(c) DEVELOPMENT CONDITIONS. Seller hereby agrees
that it shall not undertake to change the conditions imposed upon the
Development in any material adverse manner and will undertake to obtain the
maximum extension of its preliminary development plan possible.
(d) FILES. Seller shall use its best efforts to
deliver to Buyer all material, non-privileged, information in its and in its
agents possession relating to the Property. Seller agrees to promptly
deliver any new information received by Seller relating to the Property.
(e) COUNTY FINANCIAL OBLIGATIONS. To Seller's
actual knowledge, other than real property taxes, there are no material
outstanding financial obligations owed to governmental agencies which are due
and owing and, except as provided herein, Seller shall be responsible for any
of its unknown outstanding financial obligations.
(f) TERMINATIONS. Concurrently with the Closing,
Seller shall cause the Ground Lease and the Concession Agreement to be
terminated.
3.2 REAFFIRMATION. The representations and warranties of Buyer and
Seller set forth in Section 3.1 are true and correct as of the Effective
Date and shall be true and correct as of the Closing. The Closing shall
constitute Buyer's and Seller's reaffirmation of those representations and
warranties as of the Closing. Seller shall be entitled to rely upon Buyer's
representations and warranties set forth in Section 3.1.1(a), notwithstanding
any inspection or investigation of the Property which was made or could have
been made by Buyer.
3.3 HAZARDOUS MATERIAL RELEASE.
3.3.1 RELEASE. If this transaction closes and Buyer acquires
title to the Property, Buyer, on behalf of itself, its successors, assigns
and successors-in-interest, hereby releases Seller, its officers, partners,
directors, employees, contractors, agents, subsidiaries, affiliates,
including SPC and 19th Hole, and its and their respective successors and
assigns ("INDEMNITEES"), from and against any and all liabilities, claims,
demands, suits, judgments, causes of action (including, but not limited to,
causes of action arising under the Comprehensive Environmental Response
Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601 et. SEQ.),
losses, costs, damages, injuries, penalties, enforcement actions, fines,
taxes, remedial actions, removal and disposal costs, investigation and
remediation costs and expenses (including, without limit, reasonable
attorneys' fees, litigation, arbitration and administrative proceeding costs,
expert and consultant fees and laboratory costs), sums paid in settlement of
claims, whether direct or indirect, known or unknown, arising out of, related
in any way to, or resulting from or in connection with, in whole or in part,
the presence or suspected presence of "Hazardous Materials" (defined below)
in, on, under, or about the Property. The foregoing release does not release
Seller from financial obligations to governmental agencies which are due and
owing as of the Closing.
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3.3.2 WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542. In that
connection, and in connection with any other release in this Agreement, Buyer,
on behalf of itself, its successors, assigns and successors-in-interest and
such other persons and entities, waives the benefit of California Civil Code
Section 1542, which provides as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor
at the time of executing the release, which if known by
him must have materially affected his settlement with
the debtor."
3.3.3 DEFINITION. "HAZARDOUS MATERIAL(S)" means any
chemical, substance, material, controlled substance, object, condition, waste
living organisms or combination thereof which is or may be hazardous to human
health or safety or to the environment due to its radioactivity,
ignitability, corrosivity, reactivity, explosivity, toxicity,
carcinogenicity, mutagenicity, phytotoxicity, infectiousness or other harmful
or potentially harmful properties or effects, including, without limitation,
petroleum hydrocarbons and petroleum products, lead, asbestos, radon,
polychlorinated biphenyls (PCBs) and all of those chemicals, substances,
materials, controlled substances, objects, conditions, wastes, living
organisms or combinations thereof which are now or become in the future
listed, defined or regulated in any manner by any federal, state or local law
based upon, directly or indirectly, such properties or effects.
3.3.4 NO LIMITATION TO LIABILITY. The provisions of this
Section 3.3 shall not be limited in any way by any other terms of this
Agreement including, but not limited to, Section 4.6 of this Agreement
(Liquidated Damages).
3.3.5 ARCO INDEMNITY. Seller purchased the Property from
Atlantic Richfield Company ("ARCO") on October 4, 1990. In connection with
such sale both ARCO and Seller committed in the Purchase and Sale Contract,
as amended by the First and Second Amendments (collectively, the "ARCO
CONTRACT") to continuing certain obligations, including, without limitation,
environmental indemnities. Subject to the restrictions contained in the
ARCO Contract, Seller agrees to assign its interests in the ARCO Contract to
Buyer. When ARCO executes the Third Amendment to the ARCO Contract (the "ARCO
AMENDMENT") attached hereto as EXHIBIT "D", Buyer agrees to assume, and be
primarily responsible for Seller's obligations under the ARCO Contract (the
"ARCO ASSUMPTION") attached hereto as EXHIBIT "E". ARCO's execution of the
ARCO Amendment is a condition to Closing. Seller's failure to obtain
ARCO's signature shall be a material breach by Seller entitling Buyer to
terminate this Agreement under Section 2.2 and receive the return of its
Deposit and interest thereon. ARCO's execution of the ARCO Amendment in the
attached form satisfies such condition. Seller, however, agrees to cooperate
with Buyer and discuss Buyer's suggested modifications to the ARCO Amendment
with ARCO, however, making any modification thereto is NOT a condition to
close or a contingency for Buyer's termination.
3.4 CONDEMNATION. If, prior to Closing, any portion of the Property
shall be condemned or becomes the subject of any pending or threatened
condemnation action, Seller shall promptly notify Buyer in writing thereof.
("MATERIAL" for purposes of this paragraph shall mean any portion of the
Property with a fair market value of $100,000 or greater.) If the portion of
the Property that shall be condemned or that has become the subject of any
pending or threatened condemnation
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action is not a Material portion of the Property, this Agreement shall remain
in full force and effect, regardless of such condemnation or threatened or
pending action, and if any condemnation award is received by Seller prior to
Closing, the amount of such award shall be applied as a credit against the
Purchase Price. Any condemnation awards received by Seller on or after
Closing shall be promptly delivered by Seller to Buyer. If the portion of
the Property that shall be condemned or that has become the subject of any
pending or threatened action is a Material portion of the Property, Buyer
shall have the right to terminate this Agreement pursuant to Section 2.2 by
providing Seller with written notice within ten (10) days after receipt of
Seller's notification thereof.
3.5 DAMAGE OR DESTRUCTION. In the event of any damage to or
destruction of the Property prior to the Closing, Seller shall provide Buyer
with prompt written notification thereof. If the damage or destruction would
cost less than $50,000 to repair, the Closing shall nevertheless occur as
otherwise provided for in this Agreement except Buyer shall receive a $50,000
credit against the Purchase Price. If the damage or destruction would cost
$50,000 or more to repair, Buyer shall have the right to either: (a)
terminate this Agreement pursuant to Section 2.2 by providing Seller with
written notice within ten (10) days after receipt of Seller's written
notification thereof; or (b) close and receive a $50,000 credit against the
Purchase Price, and Seller shall assign to Buyer upon the Closing all
insurance proceeds payable to Seller in connection with such occurrences over
and above $50,000. In no event shall Seller shall have an obligation to
repair such damage or destruction.
3.6 DEVELOPMENT CONDITIONS. It shall be a condition to Closing that
no materially adverse conditions are imposed upon the Development. In the
event that a material adverse condition is imposed upon the Development, then
Buyer may terminate this Agreement pursuant to Section 2.2 and receive the
return of its Deposit plus interest.
3.7 PLAQUE. Buyer shall maintain that certain bronze plaque
embedded in stone, in an area of high public visibility, as such may be moved
from time to time, memorializing Mr. Hunter's role in developing Sandpiper
Golf Course. Buyer shall cause the maintenance of such plaque until April 1,
2014.
3.8 GOLF. Pursuant to the Lease Termination, dated March 11, 1994,
previously executed by Seller, Mr. Kenneth H. Hunter, Jr. and his wife shall
be afforded unlimited no-fee playing privileges for themselves only during
Mr. Hunter's lifetime subject to normal reservation requirements. Also, Mr.
Hunter, during his lifetime, shall receive each year thirty (30) passes
entitling the holder and one guest to each play one eighteen hole round of
golf during that year only with no charge for the green fee. Buyer, at its
expense, shall honor all previously issued complementary golf/gift
certificates listed on the financials. Upon reasonable prior written notice
and subject to availability, a foursome reasonably designated by Seller or
its assignee, each calender year for the next fifteen (15) years, shall be
afforded three (3) no-fee for golf and carts playing privileges at Sandpiper
and three (3) no-fee for golf and carts, in the aggregate, at any other
courses owned by Buyer or its affiliates and its subsidiaries, including its
publicly traded REIT.
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4. CLOSING
4.1 DEPOSITS INTO ESCROW.
4.1.1 Prior to the Decision Date, Seller shall deposit into
Escrow (and such delivery shall be a condition to Closing and Buyer's
obligations hereunder):
(a) Duly executed grant deeds conveying the
Property to Buyer (the "DEED") substantially in the forms of and upon the
terms contained in EXHIBIT "F-1 AND F-2", attached hereto and incorporated
herein.
(b) An affidavit or qualifying statement which
satisfies the requirements of Section 1445 of the Internal Revenue Code of
1986, as amended, and the regulations thereunder (the "NON-FOREIGN
AFFIDAVIT").
(c) A Withholding Exemption Certificate, Form 590
(the "WITHHOLDING CERTIFICATE").
(d) A counterpart original of the ARCO Assumption
executed by Seller.
(e) A counterpart original of a Bill of Sale (the
"BILL OF SALE"), duly executed by Seller, assigning and conveying to Buyer
all of Seller's right, title and interest in and to the Personal Property.
The Bill of Sale shall be substantially in the form of and upon the terms
contained in EXHIBIT "G", attached hereto and incorporated herein.
(f) The ARCO Amendment, executed by ARCO and Seller.
4.1.2 At least one (1) business day prior to the Closing
Date, Buyer shall deposit into Escrow (and such delivery shall be a condition
to Closing and Seller's obligations hereunder):
(a) Funds in accordance with the provisions of
Section 1.3.2.
(b) A counterpart original of the ARCO Assumption
executed by Buyer.
(c) A counterpart original of the Bill of Sale duly
executed by Buyer.
(d) A counterpart original of the ARCO Amendment.
4.1.3 Seller and Buyer shall each deposit such other
instruments and funds as are reasonably required by Escrow Holder or
otherwise required to close Escrow and consummate the sale of the Property in
accordance with the terms of this Agreement.
4.2 PRORATIONS.
4.2.1 The following prorations shall be made as of 12:01 a.m.
on the day the Closing occurs on the basis of a 365-day year. At least five (5)
business days prior to the Closing
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Date, Escrow Holder shall deliver to Seller and Buyer a tentative proration
schedule setting forth a preliminary determination.
(a) Non-delinquent general and special real estate
taxes, assessments and levies shall be prorated as of the Closing on the
basis of the most recent tax statement for the Property. If prorations are
not made on the basis of the current tax year or if supplemental taxes are
assessed after the Closing for the period prior to the Closing, the parties
shall make any necessary adjustment after Closing by cash payment to the
party entitled thereto so that Seller shall have borne all taxes allocable to
the period prior to the Closing (including all supplemental taxes which are
allocable to the period prior to the Closing) and Buyer shall bear all taxes
allocable to the period after the Closing (including all supplemental taxes
which are allocable to the period after the Closing).
(b) All utility charges, costs of maintenance, and
other items of expense shall be prorated as customarily prorated in similar
transactions as of the Closing on the basis of schedules prepared by Seller
for that purpose and reasonably approved by Buyer prior to the Decision Date,
with post-closing adjustments made between Seller and Buyer by cash payment
upon demand to the party entitled thereto.
4.3 PAYMENT OF CLOSING COSTS.
4.3.1 CLOSING COSTS BORNE BY SELLER. Seller shall bear and
Escrow Holder shall discharge on Seller's behalf out of the sums payable to
Seller hereunder the following: (a) the portion of the costs associated with
the standard coverage premium for the "Owner's Policy" (defined below), equal
to the premium on a CLTA owner's policy of title insurance in the amount of
the Purchase Price; (b)the sums necessary to obtain and the cost of recording
any reconveyance required hereby; and (c) one-half of Escrow Holder's fee.
4.3.2 CLOSING COSTS TO BE BORNE BY BUYER. Buyer shall
deposit with Escrow Holder for disbursement by Escrow Holder the following:
(a) one-half of Escrow Holder's fee; (b) all costs and expenses of the
owner's policy in excess of the portion of the premium to be borne by Seller
(including, without limitation, any additional premium(s) charged for any
extended coverage title insurance policy and/or endorsements thereto,
requested by Buyer); (c) the cost of any survey that may be required by the
"Title Company" (as defined below); (d) recording fees required in connection
with the transfer of the Property to Buyer; and (e) documentary transfer tax
and all sales and use taxes required in connection with the transfer of the
Property to Buyer.
4.4 CLOSING OF ESCROW.
4.4.1 Escrow Holder shall hold the Closing on the Closing
Date if: (a) it has received in a timely manner all the funds and materials
required to be delivered into Escrow by Buyer and Seller; and (b) it has
received assurances satisfactory to it that, effective as of the Closing,
Chicago Title Company, 2222 South Broadway, Suite G, Santa Maria, California
93454 (the "TITLE COMPANY") will issue to Buyer its extended coverage title
insurance policy in the amount of the Purchase Price, insuring Buyer as the
owner of the Property, subject only to the "Permitted Exceptions" (defined
below) other than any encumbrance created by an act or omission of Buyer (the
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"OWNER'S POLICY"). ("PERMITTED EXCEPTIONS" means all exceptions set forth in
Chicago Title Company's Preliminary Title Report, Order No. 4970987-DL, dated
May 23, 1997 other than exceptions listed on EXHIBIT "H" ATTACHED HERETO, and
other than installments of general and special real property taxes and
assessments not then delinquent.) Notwithstanding the foregoing, Seller
agrees to take such actions and execute such documents, as are reasonably
requested by Buyer, to eliminate additional title exceptions prior to Closing.
4.4.2 To Close the Escrow, Escrow Holder shall:
(a) Cause the Deed, without transfer tax stamps
attached, to be recorded and thereafter mailed to Buyer, and deliver the
Owner's Policy, Non-Foreign Affidavit, Bill of Sale, Assignment and
Assumption Agreement, ARCO Assumption, the ARCO Amendment and Withholding
Certificate to Buyer; and
(b) Deliver to Seller the ARCO Assumption, a
counterpart original of the Bill of Sale, a counterpart original of the
Assignment and Assumption Agreement, and by wire transfer of federal funds,
funds in the amount of the Purchase Price, less the Deposit, plus or less any
net debit or credit to Seller by reason of the prorations and allocations of
closing costs provided for in this Agreement.
4.4.3 Pursuant to Section 6045 of the Internal Revenue Code,
Escrow Holder shall be designated the closing agent hereunder and shall be
solely responsible for complying with the tax reform act of 1986 with regard
to reporting all settlement information to the Internal Revenue Service.
4.5 FAILURE TO CLOSE; CANCELLATION. If the Escrow Holder is not in a
position to Close the Escrow on the Closing Date, then, except as provided in
Section 4.6, Escrow Holder shall return to the depositor thereof any
materials previously placed in Escrow. No such return shall relieve either
party of liability for any failure to comply with the terms of this Agreement.
4.6 LIQUIDATED DAMAGES. BUYER AND SELLER AGREE THAT IN THE EVENT OF
A MATERIAL DEFAULT OR BREACH HEREUNDER BY BUYER, THE DAMAGES TO SELLER WOULD
BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN, AND THAT THEREFORE, IN
THE EVENT OF A MATERIAL DEFAULT OR BREACH HEREUNDER BY BUYER, THE DEPOSIT IS
A REASONABLE ESTIMATE OF THE DAMAGES TO SELLER, SUCH DAMAGES INCLUDING COSTS
OF NEGOTIATING AND DRAFTING OF THIS AGREEMENT, COSTS OF COOPERATING IN
SATISFYING CONDITIONS TO CLOSING, COSTS OF SEEKING ANOTHER BUYER UPON BUYER'S
DEFAULT, OPPORTUNITY COSTS IN KEEPING THE PROPERTY OUT OF THE MARKETPLACE,
AND OTHER COSTS INCURRED IN CONNECTION HEREWITH. ACCORDINGLY, BUYER AND
SELLER AGREE THAT, EXCEPT FOR ANY DAMAGES, COSTS AND EXPENSES INCURRED IN
CONNECTION WITH OR RESULTING FROM BUYER'S DEFAULT, OR BREACH OF ITS
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OBLIGATIONS, UNDER SECTIONS 3.3.4, 5.13 AND 5.17, RECEIPT AND RETENTION OF
THE SPCEIFIED SUM SHALL BE THE SOLE LEGAL AND/OR EQUITABLE REMEDY OF SELLER
IN THE EVENT OF ANY BREACH OR DEFAULT BY BUYER HEREUNDER.
INITIALS OF BUYER: INITIALS OF SELLER:
(ILLEGIBLE) (ILLEGIBLE)
------------------- -------------------
4.7 POSSESSION. Possession of the Property shall be delivered to Buyer
upon Closing.
5. GENERAL PROVISIONS
5.1 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which, taken together,
shall constitute one and the same instrument.
5.2 ENTIRE AGREEMENT. This Agreement (and all Exhibits and closing
documents referenced herein), the SPC Agreement and the 19th Hole Agreement
contain the entire integrated agreement between the parties respecting the
subject matter of this Agreement and supersede all prior understandings and
agreements, whether oral or in writing, between the parties respecting the
subject matter of this Agreement. There are no representations, agreements,
arrangements or understandings, oral or in writing, between or among the
parties to this Agreement relating to the subject matter of this Agreement
which are not fully expressed in this Agreement. The terms of this Agreement
are intended by the parties as a final expression of their agreement with
respect to those terms and they may not be contradicted by evidence of any
prior agreement or of any contemporaneous agreement. The parties further
intend that this Agreement constitute the complete and exclusive statement of
its terms and that no extrinsic evidence whatsoever may be introduced in any
judicial proceeding involving this Agreement.
5.3 LEGAL ADVICE; NEUTRAL INTERPRETATION; HEADINGS. Each party has
received independent legal advice from its attorneys with respect to the
advisability of executing this Agreement and the meaning of the provisions
hereof. The provisions of this Agreement shall be construed as to their fair
meaning, and not for or against any party based upon any attribution to such
party as the source of the language in question. Headings used in this
Agreement are for convenience of reference only and shall not be used in
construing this Agreement.
5.4 CHOICE OF LAW. This Agreement shall be governed by the laws of
the State of California.
5.5 SEVERABILITY. If any term, covenant, condition or provision of
this Agreement, or the application thereof to any person or circumstance,
shall to any extent be held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, covenants,
conditions or provisions of this Agreement, or the application thereof to any
person or circumstance, shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby.
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5.6 WAIVER OF COVENANTS, CONDITIONS OR REMEDIES. The waiver by one
party of the performance of any covenant, condition or promise under this
Agreement shall not invalidate this Agreement nor shall it be considered a
waiver by it of any other covenant, condition or promise under this
Agreement. The waiver by either or both parties of the time for performing
any act under this Agreement shall not constitute a waiver of the time for
performing any other act or an identical act required to be performed at a
later time. The exercise of any remedy provided in this Agreement shall not
be a waiver of any consistent remedy provided by law, and the provision in
this Agreement for any remedy shall not exclude other consistent remedies
unless they are expressly excluded.
5.7 EXHIBITS. All exhibits to which reference is made in this
Agreement are deemed incorporated in this Agreement, whether or not actually
attached.
5.8 AMENDMENT. This Agreement may be amended at any time by the
written agreement of Buyer and Seller. All amendments, changes, revisions
and discharges of this Agreement, in whole or in part, and from time to time,
shall be binding upon the parties despite any lack of legal consideration, so
long as the same shall be in writing and executed by the parties hereto.
5.9 RELATIONSHIP OF PARTIES. The parties agree that their
relationship is that of seller and buyer, and that nothing contained herein
shall constitute either party the agent or legal representative of the other
for any purpose whatsoever, nor shall this Agreement be deemed to create any
form of business organization between the parties hereto, nor is either party
granted any right or authority to assume or create any obligation or
responsibility on behalf of the other party, nor shall either party be in any
way liable for any debt of the other.
5.10 THIRD PARTY BENEFICIARY. This Agreement is intended to benefit
only Golf Trust of America, Inc., a Maryland Corporation as a third party
beneficiary and the parties hereto agree that there shall be no other
assignees and no other person or entity has or shall acquire any rights
hereunder.
5.11 TIME OF THE ESSENCE. Time shall be of the essence as to all
dates and times of performance, whether contained herein or contained in any
escrow instructions to be executed pursuant to this Agreement, and all escrow
instructions shall contain a provision to this effect.
5.12 FURTHER ACTS. Each party agrees to perform any further acts and
to execute, acknowledge and deliver any documents which may be reasonably
necessary to carry out the provisions of this Agreement.
5.13 RECORDATION; ACTIONS TO CLEAR TITLE. Buyer shall not record this
Agreement, any memorandum of this Agreement, any assignment of this Agreement
or any other document which would cause a cloud on the title to the Property.
If Buyer fails to complete its purchase of the Property for any reason other
than solely as a result of Seller's default hereunder, or if this Agreement
shall terminate for any reason not solely due to Seller's default hereunder,
then Buyer shall, at no cost to Seller, promptly execute, acknowledge and
deliver to Seller, all within five (5) days after written request from
Seller, a quitclaim deed, in recordable form, in favor of Seller and
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any other documents reasonably requested by Seller to remove the cloud on
title to the Property that may exist as the result of the existence of this
Agreement or any escrow relating to this Agreement. In the event Buyer fails
to so execute and deliver any such document, in addition to any liquidated
damages payable to Seller pursuant to this Agreement, Buyer shall pay all
losses, damages, costs and expenses, including but not limited to Seller's
reasonable attorneys' fees, incurred in connection with Buyer's breach of its
obligations under this Section 5.13 or the clearing of any such cloud on
title.
5.14 ASSIGNMENT. Buyer shall not assign Buyer's rights or delegate
its obligations hereunder without the prior written consent of Seller in each
instance, which consent Seller may withhold in Seller's sole and absolute
discretion; provided that Buyer may assign its rights, under this Agreement
to either or both the Golf Course and Fourteen Acres to an affiliate who
assumes the liabilities set forth in this Agreement. If Buyer assigns its
rights or delegates its obligations hereunder in violation of this Section,
Seller shall have the right to terminate this Agreement pursuant to Section
2.3 above. Subject to the foregoing, this Agreement shall be binding upon and
shall inure to the benefit of the successors and assigns of the parties to
this Agreement.
5.15 ATTORNEYS' FEES. In the event of any litigation involving the
parties to this Agreement to enforce any provision of this Agreement, to
enforce any remedy available upon default under this Agreement, or seeking a
declaration of the rights of either party under this Agreement, the
prevailing party shall be entitled to recover from the other such attorneys'
fees and costs as may be reasonably incurred, including the costs of
reasonable investigation, preparation and professional or expert consultation
incurred by reason of such litigation. All other attorneys' fees and costs
relating to this Agreement and the transactions contemplated hereby shall be
borne by the party incurring the same.
5.16 BROKERS. Buyer and Seller each represent and warrant to the
other that (a) they have not dealt with any brokers or finders in connection
with the purchase and sale of the Property, and (b) insofar as such party
knows, no broker or other person is entitled to any commission or finder's
fee in connection with the purchase and sale of the Property. Seller and
Buyer each agree to indemnify and hold harmless the other against any loss,
liability, damage, cost, claim or expense incurred by reason of any brokerage
fee, commission or finder's fee which is payable or alleged to be payable to
any broker or finder because of any agreement, act, omission or statement of
the indemnifying party.
5.17 CONFIDENTIALITY. Pursuant to the terms of this Agreement, Seller
shall furnish to Buyer certain information concerning the condition,
development or value of the Property (the "INFORMATION") which is either
confidential, proprietary or otherwise not available to the public. Any such
information furnished to Buyer by a director, officer, employee, agent,
contractor or representative of Seller shall be deemed for purposes of this
Agreement to have been Information furnished by Seller. As a condition to
Seller furnishing the Information, Buyer hereby represents, warrants and
agrees that without the prior written consent of Seller, which consent may be
withheld in Seller's sole and absolute discretion, Buyer will: (a) Keep the
Information used by Buyer confidential, except information which is in the
public domain or which Buyer may have received from sources other than Seller
and except for disclosures to such advisors and consultants that Buyer
reasonably determines need to have access to such Information for purposes of
Buyer's Investigation of the Property and Buyer shall require such advisors
and consultants to maintain the confidentiality
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of such Information, and the Information will not be used other than in
connection with the Buyer's Investigation of the Property; (b) Use the same
efforts that Buyer would use to safeguard its own confidential or proprietary
information to safeguard the Information from unauthorized disclosure; (c) to
the extent legally permitted, not disclose to any person (i) that the
Information has been made available to Buyer, (ii) that Buyer has inspected
any portion of the Information, or (iii) any facts with respect to the sale.
Buyer shall indemnify Seller from and against any and all claims, demands,
causes of action, loss, damage or liability resulting from, arising out of or
in connection with Buyer's breach of its obligations under this Section 5.17.
5.18 MANNER OF GIVING NOTICE. All notices and demands which either
party is required or desires to give to the other shall be given in writing
by personal delivery, express courier service or by telecopy followed by next
day delivery of a hard copy to the address or telecopy number set forth below
for the respective party, provided that if any party gives notice of a change
of name, address or telecopy number notices to that party shall thereafter be
given as demanded in that notice. All notices and demands so given shall be
effective upon receipt by the party to whom notice or a demand is being given.
TO SELLER: WITH COPIES TO:
Aradon Corporation Lamb & Baute LLP
c/o Musick, Peeler & Garrett 601 South Figueroa Street
One Wilshire Blvd., Suite 2100 Suite 4100
Los Angeles, California 90071 Los Angeles, California 90017
Telephone: (213) 629-7600 Telephone: (213) 630-5000
Telecopier: (213) 624-1376 Telecopier: (213) 683-1225
Attn: Robert Y. Nagata, Esq. Attn: Kevin J. Lamb, Esq.
TO BUYER: WITH COPIES TO:
Golf Trust of America O'Melveny & Myers LLP
14 North Adgers Wharf Embarcadero Center West
Charleston, South Carolina 20401 275 Battery Street
Telephone: (803) 723-4653 San Francisco, CA 94111
Telecopier: (803) 723-0479 Telephone: (415) 984-8700
Attn: Mr. Bradley Blair Telecopier: (415) 984-8701
Mr. David J. Dick Attn: Peter T. Healy, Esq.
5.19 SURVIVAL. The provisions of Sections 2.1 Limited Diligence), 3.1
(Representations and Warranties), 3.2 (Reaffirmation), 3.3 (Hazardous
Material Release), 3.4 (Condemnation), 3.5 (Damage or Destruction), 3.6
(Development Conditions), 3.7 (Plaque), 3.8 (Golf) 4.2 (Prorations), 4.3
(Payment of Closing Costs), 4.6 (Liquidated Damages), 4.7 (Possession) and
Article 5 (General Provisions) shall survive the Closing and the consummation
of the transactions contemplated by this Agreement or the termination of this
Agreement for any reason without the conveyance of the Property to Buyer.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
"SELLER": "BUYER":
ARADON CORPORATION, GOLF TRUST OF AMERICA, L.P.,
a California corporation a Delaware limited partnership
By: GTA GP, INC.,
a Maryland corporation,
/s/ Robert Y. Nagata its General Partner
- -----------------------------
Robert Y. Nagata, President
By: /s/ W. Bradley Blair II
-----------------------------------
Name: W. Bradley Blair II
---------------------------------
Title: President
--------------------------------
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