EXHIBIT 10.2.19
________________________________
PURCHASE AND SALE AGREEMENT
________________________________
Seller: POLO TRACE MANAGEMENT, INC.,
a Florida corporation
Buyer: GOLF TRUST OF AMERICA, L.P.,
a Delaware limited partnership
Property: The Links at Polo Trace
Delray Beach, Florida
Purchase
Price: $12,300,000
Effective
Date: May 28, 1998
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS; RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . . . . . 2
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(a) Act of Bankruptcy . . . . . . . . . . . . . . . . . . . . . 2
(b) Additional Purchase Price . . . . . . . . . . . . . . . . . 3
(c) Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . 3
(d) Assignment and Assumption Agreement . . . . . . . . . . . . 3
(e) Authorizations . . . . . . . . . . . . . . . . . . . . . . 3
(f) Bill of Sale - Personal Property. . . . . . . . . . . . . . 3
(g) Closing . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(h) Closing Date. . . . . . . . . . . . . . . . . . . . . . . . 3
(i) Closing Statements. . . . . . . . . . . . . . . . . . . . . 3
(j) Country Club. . . . . . . . . . . . . . . . . . . . . . . . 4
(k) Current Assets. . . . . . . . . . . . . . . . . . . . . . . 4
(l) Deed. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(m) Developer . . . . . . . . . . . . . . . . . . . . . . . . . 4
(n) Development Agreement Estoppel Certificates . . . . . . . . 4
(o) Disclosure Schedule . . . . . . . . . . . . . . . . . . . . 4
(p) Due Diligence Period. . . . . . . . . . . . . . . . . . . . 4
(q) Effective Date. . . . . . . . . . . . . . . . . . . . . . . 4
(r) Employment Agreements . . . . . . . . . . . . . . . . . . . 4
(s) Environmental Claim . . . . . . . . . . . . . . . . . . . . 4
(t) Environmental Laws. . . . . . . . . . . . . . . . . . . . . 5
(u) Equipment Leases. . . . . . . . . . . . . . . . . . . . . . 5
(v) Escrow Agent. . . . . . . . . . . . . . . . . . . . . . . . 5
(w) FIRPTA Certificate. . . . . . . . . . . . . . . . . . . . . 5
(x) First Mortgage. . . . . . . . . . . . . . . . . . . . . . . 5
(y) First Mortgagee . . . . . . . . . . . . . . . . . . . . . . 5
(z) Golf Club . . . . . . . . . . . . . . . . . . . . . . . . . 5
(aa) Golf Course Lease . . . . . . . . . . . . . . . . . . . . . 5
(ab) Governmental Body . . . . . . . . . . . . . . . . . . . . . 6
(ac) Hazardous Substances. . . . . . . . . . . . . . . . . . . . 6
(ad) Improvements. . . . . . . . . . . . . . . . . . . . . . . . 6
(ae) Intangible Personal Property. . . . . . . . . . . . . . . . 6
(af) Inventory . . . . . . . . . . . . . . . . . . . . . . . . . 6
(ag) Joint Development Agreement . . . . . . . . . . . . . . . . 6
(ah) Land. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(ai) Lender's Estoppel Certificate . . . . . . . . . . . . . . . 6
(aj) Loan Documents. . . . . . . . . . . . . . . . . . . . . . . 6
(ak) Mortgage Indebtedness . . . . . . . . . . . . . . . . . . . 6
(al) Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(am) Operating Agreements. . . . . . . . . . . . . . . . . . . . 7
(an) Owner's Title Policy. . . . . . . . . . . . . . . . . . . . 7
(ao) Permitted Title Exceptions. . . . . . . . . . . . . . . . . 7
(ap) Person. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(aq) Preliminary Title Report. . . . . . . . . . . . . . . . . . 7
(ar) Property. . . . . . . . . . . . . . . . . . . . . . . . . . 7
(as) Purchase Price. . . . . . . . . . . . . . . . . . . . . . . 7
(at) Real Property . . . . . . . . . . . . . . . . . . . . . . . 7
(au) Restaurant Supplies . . . . . . . . . . . . . . . . . . . . 7
(av) SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(aw) State . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(ax) Summary Sheet . . . . . . . . . . . . . . . . . . . . . . . 8
(ay) Survey. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(az) Tangible Personal Property. . . . . . . . . . . . . . . . . 8
(ba) Title Company . . . . . . . . . . . . . . . . . . . . . . . 8
(bb) Title Objections. . . . . . . . . . . . . . . . . . . . . . 8
(bc) Seller's Organizational Documents . . . . . . . . . . . . . 8
(bd) Utilities . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.2 Rules of Construction. . . . . . . . . . . . . . . . . . . . . . 8
(a) Gender. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(b) Section References. . . . . . . . . . . . . . . . . . . . . 8
(c) Headings. . . . . . . . . . . . . . . . . . . . . . . . . . 8
(d) Construction. . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 2
PURCHASE AND SALE; PAYMENT OF PURCHASE PRICE . . . . . . . . . . . . . . . 9
2.1 Purchase and Sale. . . . . . . . . . . . . . . . . . . . . . . . 9
2.2 Due Diligence Period . . . . . . . . . . . . . . . . . . . . . . 9
(a) Site Inspection.. . . . . . . . . . . . . . . . . . . . . . 9
(b) Inspection of Documents.. . . . . . . . . . . . . . . . . 10
(c) Survey. . . . . . . . . . . . . . . . . . . . . . . . . . 10
(d) Preliminary Title Report. . . . . . . . . . . . . . . . . 11
(e) Disclosure Schedule.. . . . . . . . . . . . . . . . . . . . 12
(f) UCC Search. . . . . . . . . . . . . . . . . . . . . . . . . 12
(g) Financial Statements. . . . . . . . . . . . . . . . . . . . 12
(h) Liquor License. . . . . . . . . . . . . . . . . . . . . . . 12
(i) Consent to Assumption . . . . . . . . . . . . . . . . . . . 12
(j) Development Agreement Estoppel Certificate. . . . . . . . . 12
2.3 Payment of Purchase Price. . . . . . . . . . . . . . . . . . . . 13
ARTICLE 3
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . . . . . . 14
3.1 Organization and Power . . . . . . . . . . . . . . . . . . . . . 15
3.2 Authorization and Execution. . . . . . . . . . . . . . . . . . . 15
3.3 Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . 15
3.4 No Special Taxes . . . . . . . . . . . . . . . . . . . . . . . . 16
3.5 Compliance with Existing Laws. . . . . . . . . . . . . . . . . . 16
3.6 Real Property. . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.7 Personal Property. . . . . . . . . . . . . . . . . . . . . . . . 16
3.8 Operating Agreements . . . . . . . . . . . . . . . . . . . . . . 17
3.9 Warranties and Guaranties. . . . . . . . . . . . . . . . . . . . 17
3.10 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.11 Condemnation Proceedings; Roadways . . . . . . . . . . . . . . . 17
3.12 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.13 Labor Disputes and Agreements. . . . . . . . . . . . . . . . . . 18
3.14 Financial Information. . . . . . . . . . . . . . . . . . . . . . 18
3.15 Organizational Documents . . . . . . . . . . . . . . . . . . . . 19
3.16 Operation of Property. . . . . . . . . . . . . . . . . . . . . . 19
3.17 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.18 Land Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.19 Hazardous Substances . . . . . . . . . . . . . . . . . . . . . . 20
3.20 Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.21 Curb Cuts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.22 Leased Property. . . . . . . . . . . . . . . . . . . . . . . . . 20
3.23 Sufficiency of Certain Items . . . . . . . . . . . . . . . . . . 21
3.24 No Fixed Rate Election . . . . . . . . . . . . . . . . . . . . . 21
3.25 No Defaults Under Loan Documents . . . . . . . . . . . . . . . . 21
3.26 Survival of Representations. . . . . . . . . . . . . . . . . . . 21
ARTICLE 4
BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. . . . . . . . . . . . . 21
4.1 Organization and Power.. . . . . . . . . . . . . . . . . . . . . 22
4.2 Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . 22
4.3 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.4 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.5 Authorization and Execution. . . . . . . . . . . . . . . . . . . 22
ARTICLE 5
CONDITIONS AND ADDITIONAL COVENANTS. . . . . . . . . . . . . . . . . . . . 22
5.1 As to Buyer's Obligations. . . . . . . . . . . . . . . . . . . . 22
(a) Seller's Deliveries.. . . . . . . . . . . . . . . . . . . . 22
(b) Representations, Warranties and Covenants.. . . . . . . . . 23
(c) Title Insurance.. . . . . . . . . . . . . . . . . . . . . . 23
(d) Title to Property.. . . . . . . . . . . . . . . . . . . . . 23
(e) Condition of Property.. . . . . . . . . . . . . . . . . . . 23
(f) Utilities.. . . . . . . . . . . . . . . . . . . . . . . . . 23
5.2 As to Seller's Obligations . . . . . . . . . . . . . . . . . . . 23
(a) Buyer's Deliveries. . . . . . . . . . . . . . . . . . . . . 24
(b) Representations, Warranties and Covenants.. . . . . . . . . 24
(c) No Default Under Loan Documents.. . . . . . . . . . . . . . 24
ARTICLE 6
CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.1 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.2 Seller's Deliveries. . . . . . . . . . . . . . . . . . . . . . . 24
(a) Seller's Certificate. . . . . . . . . . . . . . . . . . . . 24
(b) The Deed. . . . . . . . . . . . . . . . . . . . . . . . . . 24
(c) The Bill of Sale - Personal Property. . . . . . . . . . . . 24
(d) Evidence of Title.. . . . . . . . . . . . . . . . . . . . . 24
(e) Title Requirements. . . . . . . . . . . . . . . . . . . . . 24
(f) The FIRPTA Certificate. . . . . . . . . . . . . . . . . . . 25
(g) Warranties. . . . . . . . . . . . . . . . . . . . . . . . . 25
(h) Organizational Documents. . . . . . . . . . . . . . . . . . 25
(i) Board Resolutions.. . . . . . . . . . . . . . . . . . . . . 25
(j) Certificate of Occupancy. . . . . . . . . . . . . . . . . . 25
(k) Improvement Plans.. . . . . . . . . . . . . . . . . . . . . 25
(l) Communication; Addresses. . . . . . . . . . . . . . . . . . 25
(m) Tax Bills.. . . . . . . . . . . . . . . . . . . . . . . . . 25
(n) Surveys.. . . . . . . . . . . . . . . . . . . . . . . . . . 25
(o) Tournament Schedule.. . . . . . . . . . . . . . . . . . . . 26
(p) Accounts Receivable.. . . . . . . . . . . . . . . . . . . . 26
(q) Lender's Estoppel Certificate . . . . . . . . . . . . . . . 26
(r) Development Agreement Estoppel Certificate. . . . . . . . . 26
(s) Tenant Notices. . . . . . . . . . . . . . . . . . . . . . . 26
(t) Miscellaneous.. . . . . . . . . . . . . . . . . . . . . . . 26
6.3 Buyer's Deliveries . . . . . . . . . . . . . . . . . . . . . . . 26
(a) Cash Portion of Purchase Price. . . . . . . . . . . . . . . 26
(b) Miscellaneous.. . . . . . . . . . . . . . . . . . . . . . . 26
6.4 Mutual Deliveries. . . . . . . . . . . . . . . . . . . . . . . . 26
(a) Closing Statements. . . . . . . . . . . . . . . . . . . . . 26
(b) Assignment and Assumption Agreement . . . . . . . . . . . . 26
(c) Liquor License Transfer Documents . . . . . . . . . . . . . 26
(d) Miscellaneous.. . . . . . . . . . . . . . . . . . . . . . . 27
6.5 Closing Costs. . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.6 Income and Expense Allocations . . . . . . . . . . . . . . . . . 27
(a) Rents and Fees. . . . . . . . . . . . . . . . . . . . . . . 27
(b) Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(c) Utilities.. . . . . . . . . . . . . . . . . . . . . . . . . 27
(d) Fuel. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(e) Municipal Improvement Liens.. . . . . . . . . . . . . . . . 28
(f) License and Permit Fees.. . . . . . . . . . . . . . . . . . 28
(g) Income and Expenses.. . . . . . . . . . . . . . . . . . . . 28
(h) Miscellaneous Prorations. . . . . . . . . . . . . . . . . . 28
6.7 Sales Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.8 Post-Closing Adjustments . . . . . . . . . . . . . . . . . . . . 28
(a) Accounts Receivable.. . . . . . . . . . . . . . . . . . . . 28
(b) Availability of Bills.. . . . . . . . . . . . . . . . . . . 28
ARTICLE 7
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.1 Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.2 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.3 Real Estate Broker . . . . . . . . . . . . . . . . . . . . . . . 29
(a) Representations and Warranties. . . . . . . . . . . . . . . 29
(b) Indemnities.. . . . . . . . . . . . . . . . . . . . . . . . 30
7.4 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 30
7.5 Liquor Licenses. . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 8
LIABILITY OF BUYER; INDEMNIFICATION BY SELLER;
TERMINATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.1 Liability of Buyer . . . . . . . . . . . . . . . . . . . . . . . 31
8.2 Indemnification by Seller. . . . . . . . . . . . . . . . . . . . 31
8.3 Termination by Buyer . . . . . . . . . . . . . . . . . . . . . . 31
8.4 Buyer's Indemnification. . . . . . . . . . . . . . . . . . . . . 32
8.5 Termination by Seller. . . . . . . . . . . . . . . . . . . . . . 33
8.6 Costs and Attorneys' Fees. . . . . . . . . . . . . . . . . . . . 33
ARTICLE 9
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.1 Liquidated Damages . . . . . . . . . . . . . . . . . . . . . . . 33
9.2 Seller's Membership Rights . . . . . . . . . . . . . . . . . . . 33
9.3 Bulk Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.4 Completeness; Modification . . . . . . . . . . . . . . . . . . . 34
9.5 Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.6 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 34
9.7 Time is of the Essence . . . . . . . . . . . . . . . . . . . . . 34
9.8 Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.9 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.12 Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.13 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.14 Incorporation by Reference . . . . . . . . . . . . . . . . . . . 35
9.15 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . 35
9.16 No Partnership . . . . . . . . . . . . . . . . . . . . . . . . . 35
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 - Special Warranty Deed
Exhibit G - Seller's FIRPTA Affidavit
Exhibit H - Contracts and Operating Agreements
Exhibit I - Due Diligence Request List
Exhibit J - Warranty Disclosure Schedule
Exhibit K - Seller's Certificate
Exhibit L - Assignment and Assumption Agreement
Exhibit M1- Development Agreement Estoppel Certificate (Seller)
Exhibit M2- Development Agreement Estoppel Certificate (Developer)
Exhibit M3- Development Agreement Estoppel Certificate (Country Club)
Exhibit N - Lender's Estoppel Certificate
PURCHASE AGREEMENT
SUMMARY SHEET
Buyer: GOLF TRUST OF AMERICA, L.P., a Delaware limited partnership
Seller: POLO TRACE MANAGEMENT, INC.,
a Florida corporation
Effective
Date: May 28, 1998
Golf Course: The Links at Polo Trace
Delray Beach, Florida
Trade Name: The Links at Polo Trace
Purchase
Price: Twelve Million Three Hundred Thousand Dollars
($12,300,000)
Notice Address
of Seller: Polo Trace Management, Inc.
13481 Polo Trace Drive
Delray Beach, Florida
Attention: Joseph Graffeo
with a
copy to: Lloyd Granet, Esq.
5200 Town Center Circle
Suite 302
Boca Raton, Florida 33486
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.
David G. Estes, Esq.
i
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 Course and related improvements
located on the real property more particularly described in EXHIBIT A attached
hereto (the "Land").
B. Subject to the terms of this Agreement, Seller hereby agrees to
sell to Buyer, and Buyer hereby agrees to buy from Seller, all of Seller's
right, title and interest in and to the following:
I. The Land, together with the golf course, driving range,
putting greens, clubhouse facilities, snack bar, restaurant, pro shop,
buildings, structures, parking lots, improvements, fixtures and other items
of real estate located on the Land, as more particularly described in EXHIBIT
B attached hereto (the "Improvements").
1. All rights, privileges, easements and appurtenances to the
Land and the Improvements, if any, including, without limitation, all of
Seller's right, title and interest, if any, in and to all mineral and water
rights and all easements, rights-of-way and other appurtenances used or
connected with the beneficial use or enjoyment of the Land and the
Improvements, including, without limitation, concession agreements for spas
and the like (the Land, the Improvements and all such easements and
appurtenances are sometimes collectively hereinafter referred to as the "Real
Property").
2. All items of tangible personal property and fixtures (if any)
owned 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, excluding Restaurant Supplies and Inventory, both as
hereafter defined (collectively 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.
3. 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
Links at Polo Trace, Polo Trace Golf and Country Club and Polo Trace),
guarantees, Authorizations (as hereinafter defined), general intangibles,
business records, plans and specifications, surveys and title insurance policies
pertaining to the Property, all licenses, permits and approvals with respect to
the construction, ownership, operation or maintenance of the Property, any
unpaid award for taking by condemnation or any damage to the Real Property by
reason of a change of grade or location of or access to any street or highway,
excluding 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
2
under the Federal Bankruptcy Code (as now or hereafter in effect) or any new
bankruptcy statute, (e) be adjudicated bankrupt or insolvent, (f) file a
petition seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up or composition or adjustment of debts,
(g) fail to controvert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary case or
proceeding under the Federal Bankruptcy Code (as now or hereafter in effect)
or any new bankruptcy statute, or (h) take any corporate or partnership
action for the purpose of effecting any of the foregoing; or if a proceeding
or case shall be commenced, without the application or consent of a party
hereto or any general partner thereof, in any court of competent jurisdiction
seeking (1) the liquidation, reorganization, dissolution or winding-up, or
the composition or readjustment of debts, of such party or general partner,
(2) the appointment of a receiver, custodian, trustee or liquidator or such
party or general partner or all or any substantial part of its assets, or (3)
other similar relief under any law relating to bankruptcy, insolvency,
reorganization, winding-up or composition or adjustment of debts, and such
proceeding or case shall continue undismissed; or an order (including an
order for relief entered in an involuntary case under the Federal Bankruptcy
Code, as now or hereafter in effect) judgment or decree approving or ordering
any of the foregoing shall be entered and continue unstayed and in effect,
for a period of sixty (60) consecutive days.
(b) "ADDITIONAL PURCHASE PRICE" shall have the meaning set forth in
Section 2.1.
(c) "AFFILIATE" shall mean, as applied to any Person, any other
Person directly or indirectly controlling, controlled by, or under common
control with, that Person.
(d) "ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean an agreement
pursuant to which Seller assigns all of its right, title and interest in, to and
under the Operating Agreements and Equipment Leases to Buyer, or Buyer's
designee, and Buyer, or Buyer's designee, assumes the obligations of Seller
under the Operating Agreements and Equipment Leases, substantially in the form
of EXHIBIT L attached hereto.
(e) "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.
(f) "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.
(g) "CLOSING" shall mean the time the Deed is delivered to Buyer and
the Title Company is irrevocably bound to issue the Owner's Title Policy to
Buyer.
(h) "CLOSING DATE" shall mean the date on which the Closing occurs.
3
(i) "CLOSING STATEMENTS" shall have the meaning set forth in Section
6.4(a).
(j) "COUNTRY CLUB" shall mean Polo Trace Country Club, Inc., a
Florida corporation.
(k) "CURRENT ASSETS" shall mean cash, accounts receivable (including
amounts due from credit card charges) applicable to the period prior to the
Closing Date and Inventory (as hereinafter defined) held by Seller prior to the
Closing Date.
(l) "DEED" shall mean a special warranty deed, substantially in the
form of EXHIBIT F attached hereto (or lease assignment, if the Property is owned
by Seller pursuant to a ground lease), in form and substance satisfactory to
Buyer, conveying the title of Seller to the Real Property, with such grant or
warranty covenants of title from Seller to Buyer as are customary in the state
in which the Property is located, subject only to Permitted Title Exceptions. If
there is any difference between the description of the Land, as shown on EXHIBIT
A attached hereto and the description of the Land as shown on the Survey, the
description of the Land to be contained in the Deed and the description of the
Land set forth in the Owner's Title Policy (as defined herein) shall conform to
the description shown on the Survey.
(m) "DEVELOPER" shall mean K. Hovnanian at Polo Trace, Inc., a
Florida corporation.
(n) "DEVELOPMENT AGREEMENT ESTOPPEL CERTIFICATES" shall mean
certificates relating to the Joint Development Agreement and related documents
executed by Seller, Developer and Country Club, substantially in the form of
EXHIBITS M-1, M-2 and M-3 attached hereto.
(o) "DISCLOSURE SCHEDULE" shall have the meaning set forth in Section
2.2(e).
(p) "DUE DILIGENCE PERIOD" shall mean the period commencing at 9:00
a.m., California time, on the Effective Date, and continuing through 5:00 p.m.,
California time, on the date that is twenty-eight (28) days from the Effective
Date.
(q) "EFFECTIVE DATE" shall mean the date set forth on the Summary
Sheet of this Agreement.
(r) "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.
(s) "ENVIRONMENTAL CLAIM" shall mean any administrative, regulatory
or judicial action, suit, demand, letter, claim, lien, notice of non-compliance
or violation,
4
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.
(t) "ENVIRONMENTAL LAWS" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C. Section 9601, et seq.; the Resource Conservation and Recovery Act,
42 U.S.C. Section 6901, et seq.; the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq.; the Hazardous Materials Transportation Act, as amended,
49 U.S.C. Section 1801, et seq.; the Superfund Amendments and reauthorization
Act of 1986, Pub. L. 99-499 and 99-563; the Occupational Safety and Health
Act of 1970, as amended, 29 U.S.C. Section 651, et seq.; the Clean Air Act,
as amended, 42 U.S.C. Section 7401, et seq.; the Safe Drinking Water Act, as
amended, 42 U.S.C. Section 201, et seq.; the Federal Water Pollution Control
Act, as amended, 33 U.S.C. Section 1251, et seq.; and all federal, state and
local environmental health and safety statutes, ordinance, codes, rules,
regulations, orders and decrees regulating, relating to or imposing liability
or standards concerning or in connection with Hazardous Substances.
(u) "EQUIPMENT LEASES" shall mean all leases of Tangible Personal
Property in force and effect as of the Effective Date, as more particularly set
forth on EXHIBIT H attached hereto.
(v) "ESCROW AGENT" shall mean Gold Coast Title Company, 75 SE 3rd
Street, Boca Raton, Florida 33432, Attn: Herman Dance.
(w) "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.
(x) "FIRST MORTGAGE" shall have the meaning set forth in Section
2.3(c).
(y) "FIRST MORTGAGEE" shall have the meaning set forth in Section
2.3(c).
(z) "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.
5
(aa) "GOLF COURSE LEASE" shall have the meaning set forth in Recital
C.
(bb) "GOVERNMENTAL BODY" shall mean any federal state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
(cc) "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).
(dd) "IMPROVEMENTS" shall have the meaning set forth in Recital B(1).
(ee) "INTANGIBLE PERSONAL PROPERTY" shall have the meaning set forth
in Recital B(4).
(ff) "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;
provided Inventory shall not include any obsolete or other equipment which
cannot be sold in the ordinary course of Seller's business.
(gg) "JOINT DEVELOPMENT AGREEMENT" shall mean that certain Joint
Development Agreement dated as of March 28, 1994 by and between Developer and
Country Club, as amended from time to time.
(hh) "LAND" shall have the meaning set forth in Recital A.
(ii) "LENDER'S ESTOPPEL CERTIFICATE" shall mean a certificate relating
to the Loan Documents executed by First Mortgagee, substantially in the from of
EXHIBIT N attached hereto.
(jj) "LOAN DOCUMENTS" shall have the meaning set forth in Section
3.25.
6
(kk) "MORTGAGE INDEBTEDNESS" shall mean any indebtedness of Seller
which is secured by a mortgage or deed of trust on the Property.
(ll) "NOTE" shall have the meaning set forth in Section 3.24.
(mm) "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. Operating Agreements shall not include any Equipment Leases.
(nn) "OWNER'S TITLE POLICY" shall mean a 1970 Form B American Land
Title Association extended coverage owner's policy of title insurance issued
to Buyer by the Title Company, pursuant to which the Title Company insures
Buyer's ownership of fee simple title (or ground lease interest, as
applicable) to the Real Property (including the marketability thereof)
subject only to Permitted Title Exceptions and shall include those title
endorsements required by Buyer. The Owner's Title Policy shall insure Buyer
in the amount designated by Buyer and shall be acceptable in form and
substance to Buyer.
(oo) "PERMITTED TITLE EXCEPTIONS" shall mean those exceptions to title
to the Real Property that are satisfactory to Buyer as determined under this
Agreement, and as evidenced by a pro forma title report.
(pp)"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.
(qq) "PRELIMINARY TITLE REPORT" shall have the meaning set forth in
Section 2.2(d).
(rr) "PROPERTY" shall have the meaning set forth in Recital B(4).
(ss) "PURCHASE PRICE" shall mean Twelve Million Three Hundred Thousand
Dollars ($12,300,000).
(tt) "REAL PROPERTY" shall have the meaning set forth in Recital B(2).
(uu) "RESTAURANT SUPPLIES" shall mean all unopened, bulk-style (i.e.,
stored in boxes, cans, bottles, jars or other air-tight containers or packaging)
consumable goods and supplies
7
(including beverages) located in any restaurant, bar, lounge or snack shop
located upon or within the Improvements as of the Closing Date.
(vv) "SEC" shall mean the United States Securities and Exchange
Commission.
(ww) "STATE" shall mean the state or commonwealth in which the
Property is located.
(xx) "SUMMARY SHEET" shall mean the summary page attached to this
Agreement and incorporated herein by reference.
(yy) "SURVEY" shall mean the survey prepared pursuant to Section
2.2(c).
(zz) "TANGIBLE PERSONAL PROPERTY" shall have the meaning set forth in
Recital B(3).
(aaa) "TITLE COMPANY" shall mean Escrow Agent, as agent for either
Lawyers Title Insurance Corporation or First American Title Insurance Company.
(bbb) "TITLE OBJECTIONS" shall have the meaning set forth in
Section 2.2(d).
(ccc) "SELLER'S ORGANIZATIONAL DOCUMENTS" shall mean the current
organizational documents of Seller.
(ddd) "UTILITIES" shall mean public sanitary and storm sewers,
natural gas, telephone, public water facilities, electrical facilities and all
other utility facilities and services necessary for the operation and occupancy
of the Property.
1.2 RULES OF CONSTRUCTION. The following rules shall apply to the
construction and interpretation of this Agreement:
(a) GENDER. Singular words shall connote the plural number as well
as the singular and vice versa, and the masculine shall include the feminine and
the neuter.
(b) SECTION REFERENCES. All references herein to particular
articles, sections, subsections, clauses or exhibits are references to articles,
sections, subsections, clauses or exhibits of this Agreement.
(c) HEADINGS. The table of contents and headings contained herein
are solely for convenience of reference and shall not constitute a part of this
Agreement nor shall they affect its meaning, construction or effect.
(d) CONSTRUCTION. Each party hereto and its counsel have reviewed
and revised (or requested revisions of) this Agreement and have participated in
the preparation of this
8
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. In addition, at Closing, Buyer
shall purchase the Restaurant Supplies and the Inventory. The purchase price
for the Restaurant Supplies and the Inventory (the "Additional Purchase Price")
shall be based on Seller's cost, as reasonably evidenced to Buyer. Hereinafter,
references to the Purchase Price shall be deemed to include the Additional
Purchase Price.
2.2 DUE DILIGENCE PERIOD.
(a) SITE INSPECTION. Upon twenty-four (24) hours notice to Seller,
Buyer shall have the right, during the Due Diligence Period, and thereafter if
Buyer notifies Seller that Buyer has elected to proceed to Closing in the manner
described below, to enter upon the Real Property and to perform, at Seller's
expense, such surveying, engineering, and environmental studies and
investigations as Buyer may deem appropriate. Buyer shall conduct such tests,
studies and investigations in a manner designed to minimize disruption to the
operations on the Property, to the extent reasonably possible. If such tests,
studies and investigations warrant, in Buyer's sole, absolute and unreviewable
discretion, the purchase of the Property for the purposes contemplated by Buyer,
then Buyer may elect to proceed to Closing and shall so notify Seller and the
Escrow Agent, in writing, prior to the expiration of the Due Diligence Period.
If for any reason Buyer does not so notify Seller and Escrow Agent of its
determination to proceed to Closing prior to the expiration of the Due Diligence
Period, or if Buyer notifies Seller and Escrow Agent, in writing, prior to the
expiration of the Due Diligence Period that it has determined not to proceed to
Closing, this Agreement automatically shall terminate and Buyer and Escrow Agent
shall be released from any further liability or obligation under this Agreement
and, if requested by Seller, Buyer will deliver to Seller all third-party
reports and materials prepared on behalf of Buyer in connection with its due
diligence of the Property (along with evidence of payment for such reports),
provided such deliveries shall be without representation or warranty by Buyer,
and Seller shall indemnify and hold Buyer harmless from any and all liability
with respect to any subsequent use of such reports. Buyer shall indemnify and
hold Seller harmless from and against any and all liability, loss, cost, damage
and expense caused or incurred by Seller in connection with such inspection;
provided, however, Buyer shall have no liability in connection with pre-existing
conditions on the Property which Buyer may discover during the course of its
9
due diligence investigations. Buyer's indemnity obligations under this
Section 2.2(a) shall survive Closing for a period of one (1) year.
(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, Operating Agreements, Equipment Leases and any and all other material
or information relating to the ownership and operation of the Property which are
in, or come into, Seller's possession or control. 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. The Phase I Environmental Report
referenced in EXHIBIT I shall be an update of the Phase I Environmental Report
for the Property dated December 23, 1996, and prepared by Dames & Moore, which
update shall be dated no earlier than March 1, 1998.
(c) SURVEY. Within twenty-one (21) days from the Effective Date,
Seller shall use its good faith efforts to deliver to Buyer an ALTA/ACSM survey
or a boundary survey, as reasonably required by Buyer, of the Land and the
Improvements, prepared by a surveyor licensed to practice as such in the State,
bearing a date not 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. Within
seven (7) days after receipt of the Survey, Buyer shall notify Seller of any
survey matters that Buyer is unwilling to accept, and the same shall be treated
for all purposes as Title Objections within the provisions of this Agreement.
Notwithstanding the foregoing,
10
if the Survey is received by Buyer after June 19, 1998, the Closing Date, if
not already extended pursuant to Section 6.1, shall automatically extend
seven (7) days from receipt of the Survey. This Section 2.2(c) shall not be
used to extend the Closing beyond July 9, 1998 unless the Survey is received
after July 2, 1998 in which case the final Closing Date shall be extended
seven (7) days from receipt of the Survey.
(d) PRELIMINARY TITLE REPORT. Seller agrees to provide to Buyer,
within five (5) business days following the Effective Date, a copy of any
existing title insurance policies which Seller may have in its possession or
control covering the Real Property, together with legible copies of all
exception documents referred to therein. During the Due Diligence Period,
Buyer, at its expense, shall cause an examination of title to the Property to be
made and a preliminary title report to be issued (the "Preliminary Title
Report"), and, within fifteen (15) days after the Effective Date, shall notify
Seller of any defects in title shown by such examination that Buyer is unwilling
to accept by delivering a pro forma copy of the Preliminary Title Report that
reflects such unacceptable defects in title, which shall be designated as the
Title Objections. Within ten (10) days after such notification, Seller shall
notify Buyer whether Seller is willing to cure such defects. Seller shall have
no obligation to cure any non-monetary defects. If Seller is willing to cure
such defects, Seller shall act promptly and diligently to cure such defects at
its expense. If any of such defects consist of mortgages, deeds of trust,
construction or mechanics' liens, tax liens or other liens or charges in a fixed
sum or capable of computation as a fixed sum, then, to that extent, and
notwithstanding the foregoing, Seller shall be obligated to pay and discharge
such defects at Closing. For such purposes, Seller may use all or a portion of
the cash to close. If Seller is unable to cure such defects by Closing, after
having attempted to do so diligently and in good faith, Buyer shall elect (1) to
waive such defects and proceed to Closing without any abatement in the Purchase
Price, or (2) to terminate this Agreement. Seller shall not, after the date of
this Agreement, subject the Property to any liens, encumbrances, leases,
covenants, conditions, restrictions, easements or other title matters or seek
any zoning changes or take any other action which may affect or modify the
status of title without Buyer's prior written consent. All title matters
revealed by Buyer's title examination and not objected to by Buyer as provided
above shall be deemed Permitted Title Exceptions. If Buyer shall fail to
examine title and notify Seller of any such Title Objections by the end of the
Due Diligence Period, all such title exceptions (other than those rendering
title unmarketable and those that are to be paid at Closing as provided above)
shall be deemed Permitted Title Exceptions. Notwithstanding the foregoing,
Buyer shall not be required to take title to the Property subject to any matters
which may arise subsequent to the effective date of its examination of title to
the Property made during the Due Diligence Period. Buyer acknowledges that
Developer has certain rights under the Joint Development Agreement to re-plat
and re-
11
zone the Property. To the extent that Seller has any approval rights over
such re-platting or re-zoning after the Effective Date, Seller shall not
grant any such approval without first obtaining Buyer's prior written
consent, which consent shall not be unreasonably withheld.
(e) DISCLOSURE SCHEDULE. Seller shall deliver to Buyer within
fourteen (14) days after the Effective Date a disclosure schedule that
accurately and completely identifies and describes (a) all Employment Agreements
(including name of employee, social security number, wage or salary, accrued
vacation benefits, other fringe benefits, etc.), and (b) an updated Golf Club
membership list, setting forth the names of the members of the Golf Club, the
length of their membership, the payment obligations of the members and a summary
of the terms of the memberships (the "Disclosure Schedule").
(f) UCC SEARCH. Seller shall deliver to Buyer within fifteen (15)
days after the Effective Date current searches of all Uniform Commercial Code
financing statements filed with the Secretary of State of the State respecting
Seller, together with searches for pending litigation, tax liens and bankruptcy
filings in all appropriate jurisdictions.
(g) FINANCIAL STATEMENTS. Seller shall deliver to Buyer certified
compiled financial statements for the Property for the twelve (12) months ended
December 31, 1997 and the three (3) months ended March 31, 1997 and 1998, within
fifteen (15) days after the Effective Date.
(h) LIQUOR LICENSE. During the Due Diligence Period, Buyer shall
determine whether it will be able to obtain all liquor licenses, alcoholic
beverage licenses and other permits and Authorizations necessary to operate the
restaurant, bars, snack shops and lounges presently located at the Property. To
that end, Seller and Buyer, or Buyer's nominee, shall cooperate with each other,
and each shall execute 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 necessary Authorizations.
(i) CONSENT TO ASSUMPTION. During the Due Diligence Period, Buyer
shall have received written consent to Buyer's assumption of the First Mortgage
from First Mortgagee. If Buyer has not received such written consent, Buyer
shall have the option at Closing to prepay all amounts outstanding under the
Note and acquire the Property, and Buyer shall receive a credit against the
Purchase Price in an amount equal the sum of (i) two percent (2%) of the amount
outstanding under the Note at the time of prepayment, and (ii) the amount of the
Assumption Fees Seller would have paid had Buyer assumed the First Mortgage.
(j) DEVELOPMENT AGREEMENT ESTOPPEL CERTIFICATES. During the Due
Diligence Period, Seller shall in good faith endeavor to obtain a commitment
from each of Developer and
12
Country Club that each will execute and deliver its respective Development
Agreement Estoppel Certificate to Buyer at Closing. If despite its good
faith efforts, Seller cannot obtain such a commitment from either Developer
or Country Club, Seller shall provide Buyer with written notice stating that
either, or both, of Developer and Country Club have failed to provide such
commitment. Such notice must be delivered to Buyer no later than five (5)
days prior to the expiration of the Due Diligence Period. Upon delivery of
such notice by Seller, the Closing delivery required pursuant to Section
6.2(r) shall be deemed to only require delivery of a Development Agreement
Estoppel Certificate executed by Seller and the party, if any, not named in
the notice delivered pursuant to the preceding sentence.
2.3 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid to
Seller in the following manner.
(a) Buyer has previously deposited in escrow with Escrow Agent an
initial earnest money deposit in the amount of Twenty-Five Thousand Dollars
($25,000) (the "Initial Deposit).
(b) Within three (3) business days after the Effective Date, Buyer
shall deposit in escrow with Escrow Agent an additional earnest money deposit in
immediately available funds in the amount of Seventy-Five Thousand Dollars
($75,000) (the "Additional Deposit"). The Initial Deposit and the Additional
Deposit are sometimes collectively referred to in this Agreement as the
"Deposit". The Deposit shall be held by Escrow Agent in an interest bearing
account insured by the federal government in an institution as directed by Buyer
and reasonably acceptable to Seller. If the purchase and sale of the Property
is consummated as contemplated hereunder, the Deposit shall be paid to Seller
and credited against the Purchase Price. If the purchase and sale of the
Property is not consummated because of the failure of any condition precedent
described in Section 5.1 below or any other reason except for a default under
this Agreement on the part of Buyer, the Deposit shall be immediately refunded
to Buyer. If the purchase and sale of the Property is not consummated because
of a default under this Agreement on the part of Buyer, the Deposit plus all
interest accrued thereon shall be paid to and retained by Seller pursuant to
Section 9.1 below. References to the "Deposit" shall include all interest
earned thereon. For state and federal income tax purposes, Buyer shall be
deemed to be the depositor of the Deposit prior to its distribution in
accordance with this Agreement and all tax reporting obligations and tax
liability associated with any interest thereon shall be the obligation or
liability, as applicable, of Buyer.
(c) At Closing, Buyer shall assume that certain Mortgage and Security
Agreement (as amended from time to time, the "First Mortgage") dated as of
December 23, 1996, made by Seller, as mortgagor, for the benefit of
NationsCredit Commercial Corporation ("First Mortgagee"), as mortgagee. Buyer
shall receive a credit against the Purchase Price for all outstanding
13
amounts due and owing to First Mortgagee as of the Closing. At Closing,
Seller shall pay to First Mortgagee all costs and expenses associated with
the assumption of the First Mortgage, including without limitation any
assumption or similar fee due First Mortgagee as a result of Buyer's
assumption of the First Mortgage (collectively, the "Assumption Fees").
Buyer agrees to use commercially reasonable efforts to obtain consent from
First Mortgagee to Buyer's assumption of the First Mortgage. Seller agrees
to reasonably cooperate with Buyer in these efforts.
(d) The balance of the Purchase Price over and above the amounts paid
by or credited to Buyer pursuant to SECTIONS 2.3(A), (B) and (C) above, less Two
Hundred Fifty Thousand Dollars ($250,000), shall be paid to Seller at the
Closing by wire transfer of immediately available funds, net of all prorations
as provided herein.
(e) Buyer shall pay Seller Two Hundred Fifty Thousand Dollars
($250,000) in immediately available funds on January 4, 1999 (the "Prepayment
Date"). Of such amount, Buyer will deposit in Escrow One Hundred
Twenty-Three Thousand Dollars ($123,000) (the "Net Worth Holdback") to be
released pursuant to Section 2.3(f).
(f) The Net Worth Holdback should be placed in Escrow in an
interest-bearing account for the benefit of Seller until expiration of the
survivability period referenced in Section 3.26 or, if later, until any claim
by Buyer in any court of competent jurisdiction for any breach of any
representations, warranties and covenants contained herein is finally
resolved (the "Holdback Period"). After the expiration of the Holdback
Period, unless Escrow Agent receives notice from Buyer that there is a claim
by Buyer pending against Seller, Escrow Agent shall release the Net Worth
Holdback together with any interest thereon to Seller. The Net Worth
Holdback shall be the sole extent of Seller's liability for monetary damages
under this Agreement and all closing documents executed pursuant to this
Agreement.
(g) On the Prepayment Date, and as a condition to Buyer's payment
obligation contained in Section 2.3(e), Seller shall pay to Buyer an amount
equal to two percent (2%) of the indebtedness then outstanding under the First
Mortgage.
(h) If Buyer does not pay all outstanding principal amounts under the
First Mortgage to the Lender on or before June 26, 1999, Buyer shall within five
(5) days repay to Seller all fees paid by Seller to Buyer under Section 2.3(g).
ARTICLE 3
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
14
To induce Buyer to enter into this Agreement and to purchase the
Property, and to pay the Purchase Price therefor, Seller hereby makes the
following representations, warranties and covenants with respect to the
Property, subject to the Warranty Disclosure Schedule attached hereto as EXHIBIT
J, upon each of which Seller acknowledges and agrees that Buyer is entitled to
rely and has relied:
3.1 ORGANIZATION AND POWER. Seller is duly formed or organized,
validly existing and in good standing under the laws of the state of its
formation and is qualified to transact business in the State and has all
requisite powers and all governmental licenses, authorizations, consents and
approvals to carry on its business as now conducted and to enter into and
perform its obligations under this Agreement and under any document or
instrument required to be executed and delivered by or on behalf of Seller under
this Agreement.
3.2 AUTHORIZATION AND EXECUTION. This Agreement has been, and each
of the agreements and certificates of Seller to be delivered to Buyer at Closing
as provided in Section 5.1 will be, duly authorized by all necessary action on
the part of Seller, has been duly executed and delivered by Seller, constitutes
the valid and binding agreement of Seller and is enforceable against Seller in
accordance with its terms. There is no other person or entity who has an
ownership interest in the Property or whose consent is required in connection
with Seller's performance of its obligations under this Agreement. All action
required of Seller pursuant to this Agreement necessary to effectuate the
transactions contemplated herein has been, or will at Closing be, taken promptly
and in good faith by Seller and its representatives and agents.
3.3 NONCONTRAVENTION. The execution and delivery of, and the
performance by Seller of its obligations under, this Agreement do not and will
not contravene, or constitute a default under, any provision of applicable law
or regulation, Seller's Organizational Documents or any agreement, judgment,
injunction, order, decree or other instrument binding upon Seller, or result in
the creation of any lien or other encumbrance on any asset of Seller. Except
for the Joint Development Agreement, there are no outstanding agreements
(written or oral) pursuant to which Seller (or any predecessor to or
representative of Seller) has agreed to contribute or has granted an option or
right of first refusal to purchase the Property or any part thereof. Other than
(i) the rights of tenants, as tenants only, under any leases of any portion of
the Property (copies of which have been provided to Buyer by Seller) and (ii)
the Joint Development Agreement, 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
15
to purchase or to otherwise acquire any interest or profit participation of
any kind in the Property or any part thereof. Notwithstanding the foregoing,
Buyer shall have the right to accept back-up offers for the Property that are
expressly contingent upon the termination of this Agreement.
3.4 NO SPECIAL TAXES. Seller has no knowledge of, nor has it
received any notice of, any special taxes or assessments relating to the
Property or any part thereof, including taxes relating to the business of the
Property, or any planned public improvements that may result in a special tax or
assessment against the Property, that are not otherwise disclosed in the
Preliminary Title Report. To the best of Seller's knowledge, there is not any
proposed increase in the assessed valuation of the Real Property for tax
purposes (except as may relate to the transfer contemplated by this Agreement).
3.5 COMPLIANCE WITH EXISTING LAWS. Seller possesses all
Authorizations, each of which is valid and in full force and effect, and, to
Seller's actual knowledge, no provision, condition or limitation of any of the
Authorizations has been breached or violated. Seller has not intentionally
misrepresented or failed to disclose any relevant fact in obtaining all
Authorizations, and Seller has no actual 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
actual 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. Seller has no actual knowledge, nor has it received notice
within the past three years, of any existing or threatened violation of any
provision of any applicable building, zoning, subdivision, environmental or
other governmental ordinance, resolution, statute, rule, order or regulation,
including but not limited to those of environmental agencies or insurance boards
of underwriters, with respect to the ownership, operation, use, maintenance or
condition of the Property or any part thereof, or requiring any repairs or
alterations other than those that have been made prior to the Effective Date.
3.6 REAL PROPERTY. To Seller's actual knowledge, (i) the
Improvements conform in all respects to all legal requirements, (ii) all
easements necessary or appropriate for the use or operation of the Property have
been obtained, (iii) all contractors and subcontractors retained by Seller who
have performed work on or supplied materials to the Property have been fully
paid, and all materials used at or on the Property have been fully paid for,
(iv) the Improvements have been completed in all material respects and (v) all
equipment reasonably necessary for the use or operation of the Property has been
installed and is presently operative in good working order. Seller has not
received any written notice which is still in effect that there is, and, to the
best of Seller's knowledge, there does not exist, any violation of a condition
or agreement contained in any
16
easement, restrictive covenant or any similar instrument or agreement
effecting the Real Property, or any portion thereof.
3.7 PERSONAL PROPERTY. Except for the Tangible Personal Property
subject to the Equipment Leases, all of the Tangible Personal Property and
Intangible Personal Property being conveyed by Seller to Buyer is free and clear
of all liens and encumbrances and will be so on the Closing Date and Seller has
good, merchantable title thereto and the right to convey same in accordance with
the terms of this Agreement.
3.8 OPERATING AGREEMENTS. Except as specifically set forth on
EXHIBIT H attached hereto, each of the Operating Agreements may be terminated
upon not more than thirty (30) days prior written notice and without the payment
of any penalty, fee, premium or other amount. Seller has performed all of its
obligations under each of the Operating Agreements and Equipment Leases 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 or Equipment Leases. Seller shall not enter into any new
Operating Agreements, Equipment Leases, supply contracts, vending or service
contracts or other agreements with respect to the Property, nor shall Seller
enter into any agreements modifying the Operating Agreements or Equipment
Leases, unless (a) any such agreement or modification will not bind Buyer or the
Property after the Closing Date, (b) Seller has obtained Buyer's prior written
consent to such agreement or modification or (c) with respect to Operating
Agreements only, such Operating Agreements are entered into in the ordinary
course of business and may be terminated upon not more than thirty (30) days
prior written notice and without the payment of any penalty, fee, premium or
other amount.
3.9 WARRANTIES AND GUARANTIES. Seller shall not before or after
Closing, release or modify any warranties or guarantees, if any, of
manufacturers, suppliers and installers relating to the Improvements and the
Personal Property or any part thereof, except with the prior written consent of
Buyer.
3.10 INSURANCE. All of Seller's insurance policies are valid and in
full force and effect, all premiums for such policies were paid when due and all
future premiums for such policies (and any replacements thereof) required to
keep the Property insured until the Closing Date 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
17
charged for similar properties in the vicinity of the Real Property. The
Property is fully insured in accordance with prudent and customary practice.
3.11 CONDEMNATION PROCEEDINGS; ROADWAYS. Seller has received no
notice of any condemnation or eminent domain proceeding pending or threatened
against the Property or any part thereof. Seller has no knowledge of any change
or proposed change in the route, grade or width of, or otherwise affecting, any
street or road adjacent to or serving the Real Property. To the best of
Seller's knowledge, no fact or condition exists which would result in the
termination or material impairment of access to the Real Property from adjoining
public or private streets or ways or which could result in discontinuation of
presently available or otherwise necessary sewer, water, electric, gas,
telephone or other utilities or services.
3.12 LITIGATION. Except as disclosed in writing to Seller, there is
no action, suit or proceeding pending or known to be threatened against or
affecting Seller or any of its properties in any court, before any arbitrator or
before or by any Governmental Body which (a) in any manner raises any question
affecting the validity or enforceability of this Agreement or any other
agreement or instrument to which Seller is a party or by which it is bound and
that is or is to be used in connection with, or is contemplated by, this
Agreement, (b) could materially and adversely affect the business, financial
position or results of operations of Seller, (c) could materially and adversely
affect the ability of Seller to perform its obligations under this Agreement, or
under any document to be delivered pursuant hereto, (d) could create a lien on
the Property, any part thereof or any interest therein, (e) the subject matter
of which concerns any past or present employee of Seller or its managing agent,
or (f) could otherwise adversely materially affect the Property, any part
thereof or any interest therein or the use, operation, condition or occupancy
thereof.
3.13 LABOR DISPUTES AND AGREEMENTS. There are no labor disputes
pending or, to Seller's actual 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 any 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.
18
3.14 FINANCIAL INFORMATION. To Seller's actual knowledge, all of
Seller's financial information, including, without limitation, all books and
records and financial statements, is correct and complete in all material
respects and presents accurately the results of the operations of the
Property for the periods indicated.
3.15 ORGANIZATIONAL DOCUMENTS. Seller's Organizational Documents
are in full force and effect and have not been modified or supplemented, and
no fact or circumstance has occurred that, by itself or with the giving of
notice or the passage of time or both, would constitute a default thereunder.
3.16 OPERATION OF PROPERTY. Seller covenants, that between the
Effective Date and the Closing Date, it will (a) operate the Property in the
usual, regular and ordinary manner consistent with Seller's prior practice,
(b) maintain its books of account and records in the usual, regular and
ordinary manner, in accordance with sound accounting principles applied on a
basis consistent with the basis used in keeping its books in prior years and
(c) use all reasonable efforts to preserve intact its present business
organization, keep available the services of its present officers, partners
and employees and preserve its relationships with suppliers and others having
business dealings with it. Except as otherwise permitted hereby, from the
Effective Date until Closing, Seller shall not take any action or fail to
take action the result of which would have a material adverse effect on the
Property or Buyer's ability to continue the operation thereof after the
Closing Date in substantially the same manner as presently conducted, or
which would cause any of the representations and warranties contained in this
Article III to be untrue as of Closing.
From and after the execution and delivery of this Agreement, Seller
shall not, other than in the ordinary course of business (which shall include
entering into off-season "charity cards" and booking tournaments), (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. Notwithstanding the foregoing, Buyer
acknowledges that it is Seller's customary practice to annually reduce green
fees during the "shoulder season" beginning on April 15. Between the
Effective Date and the Closing Date, if and to the extent requested by Buyer,
Seller shall deliver to Buyer such periodic information with respect to the
above information as Seller customarily keeps internally for its own use.
Seller agrees that it will operate the Property in accordance with the
provisions of this Section 3.16 between the Effective Date and the Closing
Date.
3.17 BANKRUPTCY. No Act of Bankruptcy has occurred with respect to
Seller.
19
3.18 LAND USE. To Seller's actual knowledge, the current use and
occupancy of the Property for golfing and all other related purposes
(including, without limitation, the sale of merchandise and food and
beverages) are permitted as a matter of right as a principal use under all
laws and regulations applicable thereto without the necessity of any special
use permit, special exception or other special permit, permission or consent
and Seller is not aware of any proposal to change or restrict such use.
Seller has all necessary certificates of occupancy or completion to operate
the Property as presently operated and, to Seller's actual knowledge, there
are no unfulfilled conditions respecting the development of the Property.
3.19 HAZARDOUS SUBSTANCES. Except as may be disclosed in the Phase
I environmental assessment report for the Property, to Seller's actual
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 the best
of Seller's knowledge, there currently exist no facts or circumstances that
could reasonably be expected to give rise to a material non-compliance with
Environmental Laws, material environmental liability or material
Environmental Claim. Seller has advised Buyer that federal legislation may
require removal of any underground storage tanks located on the Property in
the future. Buyer agrees that the costs of such removal shall be borne by
Buyer and not Seller.
3.20 UTILITIES. All Utilities required for the operation of the
Property either enter the Property through adjoining streets, or they pass
through adjoining land and do so in accordance with valid public easements or
private easements, and all of said Utilities are installed and are in good
working order and repair and operating as necessary for the operation of the
Property and all installation and connection charges therefor have been paid
in full. The sewage, sanitation, plumbing, water retention and detention,
refuse disposal and utility facilities in and on and/or servicing the Real
Property are adequate to service the Real Property as it is currently being
used and the Real Property's utilization of such facilities is in compliance
with all applicable governmental and environmental protection authorities'
laws, rules, regulations and requirements.
3.21 CURB CUTS. All curb cut street opening permits or licenses
required for vehicular access to and from the Property
20
from any adjoining public street have been obtained and paid for and are in
full force and effect.
3.22 LEASED PROPERTY. The Personal Property identified on EXHIBIT
C is all of the leased property at the Property, and such exhibit reflects
the date of each such lease, the name of the lessor, the name of the lessee,
the term of each such lease, the lease payment terms and a description of the
property demised by each such lease. All leases of such property are in good
standing and free from default.
3.23 SUFFICIENCY OF CERTAIN ITEMS. The Property, together with the
Current Assets, contain an amount of equipment and supplies, which is
sufficient to efficiently operate and maintain the Property in the manner in
which it is normally operated and maintained.
3.24 NO FIXED RATE ELECTION. Pursuant to Section 2.11 of that
certain Promissory Note (Secured) dated as of December 23, 1996, made by
Seller in favor of First Mortgagee in the original principal amount of Five
Million Two Hundred Thousand Dollars ($5,200,000) (the "Note"), Seller has
not elected to convert the Base Rate (as defined in the Note) to the Fixed
Rate (as defined in the Note).
3.25 NO DEFAULTS UNDER LOAN DOCUMENTS. Seller has performed all of
its obligations under each of the First Mortgage and the Note and all other
documents in connection with the loan evidenced thereby (collectively, the
"Loan Documents") 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 Loan Documents. Seller shall not enter into any
agreements modifying the Loan Documents.
3.26 SURVIVAL OF REPRESENTATIONS. Each of the representations,
warranties and covenants contained in this Article III are intended for the
benefit of Buyer. Each of said representations, warranties and covenants
shall not merge into the Deed or any other document or instrument executed
and delivered in connection herewith, and shall survive the Closing for a
period of one (1) year, at which time they shall expire unless prior to such
time Buyer has made a formal, written claim alleging a breach of one or more
of the representations, warranties or covenants. No investigation, audit,
inspection, review or the like conducted by or on behalf of Buyer shall be
deemed to terminate the effect of any such representations, warranties and
covenants, it being understood that Buyer has the right to rely thereon and
that each such representation, warranty and covenant constitutes a material
inducement to Buyer to execute this Agreement and to close the transaction
contemplated hereby and to pay the Purchase Price to Seller.
ARTICLE 4
BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
21
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 5.2 will be, duly authorized by all necessary
action on the part of Buyer, has been duly executed and delivered by Buyer,
constitutes the valid and binding agreement of Buyer and is enforceable
against Buyer in accordance with its terms. All action required pursuant to
this Agreement necessary to effectuate the transactions contemplated herein
has been, or will at Closing be, taken promptly and in good faith by Buyer
and its representatives and agents.
ARTICLE 5
CONDITIONS AND ADDITIONAL COVENANTS
5.1 AS TO BUYER'S OBLIGATIONS. Buyer's obligations under this
Agreement are subject to the satisfaction of the following conditions precedent
and the compliance by Seller with the following covenants:
22
(a) SELLER'S DELIVERIES. Seller shall have delivered to or for
the benefit of Buyer, as the case may be, on or before the scheduled Closing
Date, all of the documents listed in 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. Seller shall have performed all of its
covenants and other obligations under this Agreement and Seller shall have
executed and delivered to Buyer on the Closing Date a certificate dated as of
the Closing Date to the foregoing effect in the form of EXHIBIT K attached
hereto.
(c) TITLE INSURANCE. The Title Company shall have delivered the
Owner's Title Policy, subject only to the Permitted Title Exceptions.
(d) TITLE TO PROPERTY. 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 Section 7.2 of this
Agreement, the Real Property and the Tangible Personal Property (including
but not limited to the golf course, driving range, putting greens, mechanical
systems, plumbing, electrical wiring, appliances, fixtures, heating, air
conditioning and ventilating equipment, elevators, boilers, equipment, roofs,
structural members and furnaces) shall be in the same condition at Closing as
they are as of the Effective Date, reasonable wear and tear excepted. Prior
to Closing, Seller shall not have diminished the quality or quantity of
maintenance and upkeep services heretofore provided to the Real Property and
the Tangible Personal Property. Seller shall not have removed or caused or
permitted to be removed any part or portion of the Real Property or the
Tangible Personal Property unless the same is replaced, prior to Closing,
with similar items of at least equal quality.
(f) UTILITIES. All of the Utilities shall be installed in and
operating at the Property, and service shall be available for the removal of
garbage and other waste from the Property. Between the Effective Date and
the Closing Date, Seller shall have received no notice of any material
increase or proposed material increase in the rates charged for the Utilities
from the rates in effect as of the Effective Date.
Each of the conditions and additional covenants contained in this Section are
intended for the benefit of Buyer and may be waived in whole or in part by
Buyer, but only by an instrument in writing signed by Buyer.
23
5.2 AS TO SELLER'S OBLIGATIONS. Seller's obligations under this
Agreement 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 scheduled Closing Date, all of the
documents and payments listed in Section 6.3 of 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.
(c) NO DEFAULT UNDER LOAN DOCUMENTS. From and after the Closing
Date, Buyer shall not default in the performance of any of its obligations
under the Loan Documents nor shall Buyer elect to convert the Base Rate to
the Fixed Rate.
Each of the conditions and additional covenants contained in this Section are
intended for the benefit of Seller and may be waived in whole or in part, by
Seller, but only by an instrument in writing signed by Seller.
ARTICLE 6
CLOSING
6.1 CLOSING. Closing shall be held at 9:00 a.m., New York time,
at the offices of Escrow Agent on June 26, 1998; provided however, that Buyer
shall have the right to extend the Closing Date to July 9, 1998, at its sole
discretion by providing written notice to Seller at least three (3) business
days prior to the scheduled Closing Date. 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 and
those items specified in Section 3.3 of this Agreement.
6.2 SELLER'S DELIVERIES. At Closing, Seller shall deliver to
Buyer, to the extent not previously delivered, 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.
24
(d) EVIDENCE OF TITLE. Evidence of title acceptable to Buyer for
any vehicle owned by Seller and used in connection with the Property.
(e) TITLE REQUIREMENTS. Such agreements, affidavits or other
documents as may be required by the Title Company to issue the Owner's Title
Policy including those endorsements requested by Buyer, so that the Owner's
Title Policy will be subject only to the Permitted Title Exceptions,
including, without limitation, an appropriate mechanics' and construction
lien, possession and gap affidavit.
(f) THE FIRPTA CERTIFICATE.
(g) WARRANTIES. To the extent available, true, correct and
complete copies of all warranties, if any, of manufacturers, suppliers and
installers possessed by Seller and relating to the Property, or any part
thereof.
(h) ORGANIZATIONAL DOCUMENTS. Certified copies of Seller's
Organizational Documents.
(i) BOARD RESOLUTIONS. Appropriate resolutions of the board of
directors or partners, as the case may be, of Seller, certified by the
secretary or an assistant secretary of Seller or a general partner, as the
case may be, together with all other necessary approvals and consents of
Seller, authorizing (i) the execution on behalf of Seller of this Agreement
and the documents to be executed and delivered by Seller prior to, at or
otherwise in connection with Closing, and (ii) the performance by Seller of
its obligations under this Agreement and under such documents, or appropriate
resolutions of the partners of Seller, as the case may be.
(j) 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.
(k) IMPROVEMENT PLANS. To the extent available, a set or copies
of the plans and specifications for the Improvements.
(l) 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.
25
(m) TAX BILLS. All current real estate and personal property tax
bills in Seller's possession or under its control.
(n) SURVEYS. All surveys and plot plans of the Real Property in
possession of or in the control of Seller.
(o) TOURNAMENT SCHEDULE. A complete list of all scheduled
tournaments, functions and the like, in reasonable detail.
(p) 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.
(q) LENDER'S ESTOPPEL CERTIFICATE.
(r) DEVELOPMENT AGREEMENT ESTOPPEL CERTIFICATES (subject to
Section 2.2(j)).
(s) 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.
(t) MISCELLANEOUS. Any other document or instrument reasonably
necessary to facilitate the Closing; provided, however, that such document or
instrument does not materially increase Seller's economic obligations under
this Agreement.
6.3 BUYER'S DELIVERIES. At Closing, Buyer shall pay or deliver to
Seller the following:
(a) CASH PORTION OF PURCHASE PRICE. The cash portion of the
Purchase Price by federal funds wired to an account designated by Seller.
(b) MISCELLANEOUS. Any other document or instrument reasonably
necessary to facilitate the Closing; provided, however, that such document or
instrument does not materially increase Buyer's economic obligations under
this Agreement.
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) ASSIGNMENT AND ASSUMPTION AGREEMENT.
26
(c) LIQUOR LICENSE TRANSFER DOCUMENTS. Such other documents,
instruments and undertakings as may be required by the liquor authorities of
the State or of any county or municipality or Governmental Body having
jurisdiction with respect to the transfer or issue of any liquor licenses or
alcoholic beverage licenses or permits for the Property, to the extent not
theretofore executed and delivered.
(d) MISCELLANEOUS. Such other and further documents, papers and
instruments as may be reasonably required by the parties hereto or their
respective counsel in order to facilitate the Closing; provided, however,
that such documents, papers or instruments do not materially increase either
party's economic obligations under this Agreement.
6.5 CLOSING COSTS. Except as is otherwise provided in this
Agreement, each party hereto shall pay its own legal fees and expenses, and
Seller shall pay for the cost of any audit required by Buyer with respect to
the Property. All filing fees for the Deed and the real estate transfer,
recording or other similar taxes due with respect to the transfer of title
and all charges for title insurance premiums shall be paid by Seller. Seller
shall pay for preparation of the documents to be delivered by Seller under
this Agreement, and for the releases of any deeds of trust, mortgages and
other financing encumbering the Property and for any costs associated with
any corrective instruments, and for the cost of any due diligence reports and
surveys prepared by or for Buyer with respect to the Property. All other
closing costs shall be split between Buyer and Seller as is customary in the
sale of commercial property located in Palm Beach County, Florida.
6.6 INCOME AND EXPENSE ALLOCATIONS. All income and expenses with
respect to the Property, and applicable to the period of time before and
after Closing, determined in accordance with generally accepted accounting
principles consistently applied, shall be allocated between Seller and Buyer
(or, at Buyer's election, between Seller and the lessee under the Golf Course
Lease to the extent such income or expenses will be payable by or
attributable to such lessee). Seller shall be entitled to all income and
shall be responsible for all expenses for the period of time up to but not
including the Closing Date, and Buyer shall be entitled to all income and
shall be responsible for all expenses for the period of time from, after and
including the Closing Date. Such reconciliation shall occur within forty-five
(45) days of the Closing Date and each of the parties hereto shall furnish
the other with such supporting documentation as it shall reasonably require.
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.
27
(b) TAXES. Real estate and personal property taxes.
(c) UTILITIES. To the extent Buyer and Seller cannot obtain final
meter readings as of the Closing Date despite commercially reasonable
efforts, utility charges (including but not limited to charges for water,
sewer and electricity). Seller shall be entitled to a credit for any
deposits with applicable utility companies to the extent such utility
companies acknowledge in writing that such deposits shall be credited to
Buyer. If Seller has made deposits with utility companies and such companies
do not agree to credit such deposits to Buyer's account at Closing, Seller
shall be entitled to seek a refund of such deposits and Buyer shall be
responsible for arranging utility service from such companies, including the
payment of any required security deposits.
(d) FUEL. Value of fuel stored on the Property at the price paid
for such fuel by Seller, including any taxes.
(e) MUNICIPAL IMPROVEMENT LIENS. Municipal improvement liens
where the work has physically commenced (certified liens) shall be paid by
Seller at Closing. Municipal improvement liens which have been authorized,
but where the work has not commenced (pending liens) shall be assumed by
Buyer.
(f) LICENSE AND PERMIT FEES. License and permit fees, where
transferable.
(g) INCOME AND EXPENSES. All other income and expenses of the
Property, including, but not being limited to such things as restaurant and
snack bar income and expenses and the like.
(h) MISCELLANEOUS PRORATIONS. Such other items as are usually and
customarily prorated between Buyers and Sellers of golf course properties in
the area in which the Property is located shall be prorated as of the Closing
Date.
6.7 SALES TAXES. Seller shall be required to pay all sales taxes
and like impositions arising from the ownership and operation of the Property
currently through the Closing Date.
6.8 POST-CLOSING ADJUSTMENTS.
(a) ACCOUNTS RECEIVABLE. Buyer shall not be obligated to collect
any accounts receivable or revenues accrued prior to the Closing Date for
Seller, but if Buyer collects same, such amounts will be promptly remitted to
Seller in the form received. Buyer shall receive a credit at Closing for the
amount of any security deposits held by Seller under any lease of any portion
of the Property that is being assigned to Buyer in accordance herewith.
Seller shall have the right after Closing to collect those accounts
receivable relating to the period prior to Closing as specified in a schedule
delivered to Buyer at Closing.
28
(b) AVAILABILITY OF BILLS. If accurate allocations and prorations
cannot be made at Closing because current bills are not obtainable (as, for
example, in the case of utility bills and/or real estate or personal property
taxes), the parties shall allocate such income or expenses at Closing on the
best available information, subject to adjustment outside of escrow upon
receipt of the final bill or other evidence of the applicable income or
expense. Any income received or expense incurred by Seller or Buyer with
respect to the Property after the Closing Date shall be promptly allocated in
the manner described herein and the parties shall promptly pay or reimburse
any amount due. Seller shall pay at Closing all accrued special assessments
and taxes applicable to the Property.
ARTICLE 7
GENERAL PROVISIONS
7.1 CONDEMNATION. In the event of any actual or threatened
taking, pursuant to the power of eminent domain, of all or any portion 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. If any such loss or
damage which is reasonably anticipated by Buyer to cost more than Two Hundred
Fifty Thousand Dollars ($250,000) to repair or restore occurs prior to
Closing, Buyer shall have the right to terminate this Agreement pursuant to
Section 8.3. If Buyer elects not to terminate this Agreement or if the cost
to repair or restore the Property is reasonably anticipated by Buyer to be
less than Two Hundred Fifty Thousand Dollars ($250,000), Buyer shall purchase
the Property in accordance with the terms of this Agreement, all insurance
proceeds and rights to proceeds arising out of such loss or damage shall be
paid or assigned, as applicable, to Buyer at Closing and Buyer shall receive
a credit against the Purchase Price in the amount of Seller's insurance
deductible or for the amount of any uninsured casualty, as applicable.
7.3 REAL ESTATE BROKER.
(a) REPRESENTATIONS AND WARRANTIES. Seller and Buyer each
represent and warrant that they have not engaged or dealt with any broker,
finder or other person in connection with the transactions contemplated by
this Agreement which could result in any obligation of Buyer or Seller to pay
a fee or a commission,
29
except for First Tee Capital Advisors, Ltd. (dba Clubhouse Capital)
("Seller's Broker"). Seller shall be solely responsible for paying a
commission in the amount of Two Hundred Forty-Six Thousand Dollars ($246,000)
to Seller's Broker pursuant to a separate agreement between Seller and
Seller's Broker. Seller agrees that it shall pay Seller's Broker such
commission at Closing out of proceeds of the sale of the Property. Seller
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.
(b) INDEMNITIES. Buyer and Seller hereby agree to indemnify,
defend and hold the other harmless from and against all claims and losses,
whether or not taxable and whether or not any action is prosecuted to
judgment, incurred by the indemnified party in connection with any broker's,
finder's or other commission or fee payable in connection with the
transactions contemplated hereby claimed by any person or entity through the
indemnifying party. The foregoing obligations to indemnify shall survive the
Closing of any termination of this Agreement.
7.4 CONFIDENTIALITY. Except as hereinafter provided, from and
after the execution of this Agreement through the Closing Date, Buyer and
Seller shall keep the terms, conditions and provisions of this Agreement
confidential and neither shall make any public announcements hereof unless
the other first approves of same in writing, nor shall either disclose the
terms, conditions and provisions hereof, except to their respective
attorneys, accountants, engineers, surveyors, financiers and bankers.
Notwithstanding the foregoing, it is acknowledged that the Company is a
public company and will make a public announcement on or after the Closing
Date 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. In addition, Seller shall have
the right to disclose the existence of this Agreement (but not the identity
of Buyer) and the scheduled and actual Closing Date under this Agreement to
its service providers, Developer and Country Club. 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
30
Lease), if such nominee is Raymon R. Finch, Jr. or Raymon R. Finch, III or an
entity created by either, or a nominee of Buyer reasonably approved by
Seller, all liquor licenses and alcoholic beverage licenses, if any,
necessary to operate the restaurant, bars, snack bars and lounges presently
located within the Property, if any. To that end, Seller and Buyer, or
Buyer's nominee, shall cooperate each with the other, and each shall execute
such transfer forms, license applications and other documents as may be
necessary to effect such transfer. Buyer shall be responsible for the cost
of all transfer or application fees in connection with the transfer of the
liquor license. 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 (i) 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, and (ii) Seller obligations under this
sentence shall terminate as of six (6) months after the Closing Date.
ARTICLE 8
LIABILITY OF BUYER; INDEMNIFICATION;
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
31
other document delivered by Seller pursuant hereto, for a period of one (1)
year following the Closing. The provisions of this section shall survive
termination of this Agreement by Buyer or Seller.
8.3 TERMINATION BY BUYER. If any condition set forth herein for
the benefit of Buyer cannot or will not be satisfied prior to Closing, or
upon the occurrence of any other event that would entitle Buyer to terminate
this Agreement and its obligations under this Agreement, and Seller fails to
cure any such matter within ten (10) business days after notice thereof from
Buyer, Buyer, at its option, may elect either (a) to terminate this Agreement
and all other rights and obligations of Seller and Buyer under this Agreement
shall terminate immediately, or (b) to waive its right to terminate (but
without waiving any breach or default on the part of Seller) and, instead, to
proceed to Closing; provided, however that Buyer shall retain all remedies
accruing as a result of Seller's breach or default, including, without
limitation, specific performance. Except in the case of Seller's willful
failure to close the transaction contemplated by this Agreement, in an action
for damages against Seller, Buyer's recovery, exclusive of costs recoverable
pursuant to Section 8.6, shall be limited to One Hundred Thousand Dollars
($100,000).
8.4 BUYER'S INDEMNIFICATION. 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 be incurred by Seller relating to the period from and after
the Closing Date that arise under (i) the Operating Agreements or Equipment
Leases assumed by Buyer or Buyer's designee pursuant to the Assignment and
Assumption Agreement, (ii) the Note or First Mortgage or (iii) the Joint
Development Agreement.
[Remainder of this page intentionally left blank.]
32
8.5 TERMINATION BY SELLER. If any condition set forth herein for
the benefit of Seller (other than a default by Buyer) cannot or will not be
satisfied prior to Closing, and Buyer fails to cure any such matter within
ten (10) business days after notice thereof from Seller, Seller may, at its
option, elect either (a) to terminate this Agreement, in which event the
rights and obligations of Seller and Buyer hereunder shall terminate
immediately, or (b) to waive its right to terminate, and instead, to proceed
to Closing. If, prior to Closing, Buyer defaults in performing any of its
obligations under this Agreement (excluding its obligation to purchase the
Property, the remedy for which is set forth in Section 9.1), and Buyer fails
to cure any such default within ten (10) business days after notice thereof
from Seller, then Seller's remedy for such default shall be to terminate this
Agreement, provided, however, Seller shall retain all remedies accruing as a
result of Buyer's breach or default except for specific performance.
Notwithstanding the foregoing, in no event shall a default by Buyer extend
the Closing Date beyond the scheduled Closing Date.
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 LIQUIDATED DAMAGES. If Buyer defaults in its obligations to
close the purchase of the Property for any reason other than Seller's default
or a failure of a condition precedent described in Section 5.1, the Deposit
will be paid to and retained by Seller as full, agreed and liquidated
damages. The parties hereto expressly agree and acknowledge that Seller's
actual damages in the event of a default by Buyer would be extremely
difficult or impracticable to ascertain and that the amount of the deposit
represents the parties' reasonable estimate of such damages. Seller shall
have no other remedy whether at law or in equity for any default by Buyer.
Seller's initials: ____ Buyer's initials: _____
9.2 SELLER'S MEMBERSHIP RIGHTS. Joseph Graffeo, Harriet Rostoff,
Ira Smolev, Joseph Galante and Andrew Inelli (collectively, the "Players")
shall, free of charge, be afforded all rights of members of the Golf Course,
as the same may change from time to time, through the end of calendar year
2002. The Players shall be responsible for any additional charges incurred
by them in connection with their use of the Golf Course, including, without
limitation, cart fees, guest green fees, range fees and food and beverage
expenses.
33
9.3 BULK SALES. Seller and Buyer hereby waive compliance with any
bulk sales laws or similar laws (the "Bulk Sales Laws") applicable to the
transaction contemplated by this Agreement, if any. 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 or in connection with
non-compliance with the Bulk Sales Laws.
9.4 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.
9.5 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.
9.6 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure
to the benefit of the parties hereto and their respective successors and
assigns.
9.7 TIME IS OF THE ESSENCE. Time is of the essence of this
Agreement and the escrow provided herein.
9.8 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.
9.9 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.
9.10 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
34
counterparts hereof shall collectively constitute a single agreement.
9.11 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.
9.12 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.
9.13 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.
9.14 INCORPORATION BY REFERENCE. All of the exhibits attached
hereto are by this reference incorporated herein and made a part hereof.
9.15 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; provided, however, that such
agreements, instruments, papers, deeds, acts or things do not materially
increase either party's economic obligations under this Agreement.
9.16 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.
35
IN WITNESS WHEREOF, Seller and Buyer have hereunder affixed their
signatures to this Purchase and Sale Agreement, all as of the 28th day of
May, 1998.
"BUYER"
GOLF TRUST OF AMERICA, L.P., a Delaware limited
partnership
By: GTA GP, Inc., a Maryland corporation
Its: General Partner
By:
--------------------------------------------
Its:
-------------------------------------------
"SELLER"
POLO TRACE MANAGEMENT, INC.,
a Florida corporation
By:
--------------------------------------------
Its:
-------------------------------------------
S-1
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
See Attached
EXHIBIT B
DESCRIPTION OF IMPROVEMENTS
[to be agreed upon]
EXHIBIT C
TANGIBLE PERSONAL PROPERTY
See Attached
EXHIBIT D
INTANGIBLE PERSONAL PROPERTY
See Attached
EXHIBIT E
BILL OF SALE - PERSONAL PROPERTY
WHEREAS, by deed of even date herewith, POLO TRACE MANAGEMENT, INC., a
Florida corporation ("Seller") conveyed to GOLF TRUST OF AMERICA, L.P., a
Delaware limited partnership ("Buyer"), whose mailing address is 14 N. Adger's
Wharf, Charleston, South Carolina 29401, that certain tract of land more
particularly described in SCHEDULE 1 attached hereto as a part hereof, together
with all improvements located thereon (the "Property").
WHEREAS, in connection with the above described conveyance Seller desires
to transfer and convey to Buyer certain items of tangible personal property as
defined in the Purchase and Sale Agreement dated May 28, 1998, (the "Agreement")
including, without limitation, the items hereinafter described.
NOW, THEREFORE, in consideration of the receipt of TEN AND NO/100 DOLLARS
($10.00) and other good and valuable consideration paid in hand by Buyer to
Seller, the receipt and sufficiency of which are hereby acknowledged, Seller
has, without any representation or warranty whatsoever, except as set forth in
the last sentence of this Bill of Sale, GRANTED, CONVEYED, CONTRIBUTED,
TRANSFERRED, SET OVER and DELIVERED and by these presents does hereby GRANT,
CONTRIBUTE, TRANSFER, SET OVER and DELIVER to Buyer, its legal representatives,
successors and assigns, all items of tangible personal property and fixtures (if
any) owned or leased by Seller, 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 carts, 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, antiques or other decorations, and
equipment or machinery of every kind or nature located on or useful in the
operation of the Real Property whether on or off-site, including all warranties
and guaranties associated therewith (the "Tangible Personal Property"),
including, without limitation, the personal property described in SCHEDULE 2
attached hereto and 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,
guarantees, Authorizations (as defined in the Agreement), general intangibles,
business records relating to the operation of the Property, plans and
specifications, surveys and title insurance policies pertaining to the Property,
all licenses, permits and approvals with respect to the construction, ownership,
operation or maintenance of the Property, any unpaid award for taking by
condemnation or any damage to the Real Property by reason of a change of grade
or location of or access to any street or highway, excluding the Current Assets,
as defined in the Agreement (collectively, the "Intangible Personal Property"),
and to have and to hold, all and singular, the Tangible Personal Property and
the Intangible Personal Property unto Buyer forever. Except for the Tangible
Personal Property subject to the Equipment Leases (as defined in the Agreement),
all of the Tangible Personal Property and Intangible Personal Property being
conveyed by Seller to Buyer pursuant to this Bill of Sale is free and clear of
all liens and encumbrances and Seller has good, merchantable title thereto and
the right to convey the same.
EXECUTED this ____ day of ____________________, 19____.
Seller:
POLO TRACE MANAGEMENT, INC.,
a Florida corporation
By:__________________________
Its:______________________
SCHEDULE 1
DESCRIPTION OF PROPERTY
See Attached
SCHEDULE 2
DESCRIPTION OF PERSONAL PROPERTY
See Attached
EXHIBIT F
SPECIAL WARRANTY DEED
This Instrument Prepared By
and Return to:
O'MELVENY & MYERS LLP
275 Battery Street, 26th Floor
San Francisco, California 94111
Attn: Peter T. Healy, Esq.
THIS SPECIAL WARRANTY DEED made this _____ day of ____, 1998, by POLO
TRACE MANAGEMENT, INC., a Florida corporation ("Grantor"), whose office address
is: 13481 Polo Trace Drive, Delray Beach, Florida ________, Attn: Mr. Joseph
Graffeo, to GOLF TRUST OF AMERICA, L.P., a Delaware limited partnership, whose
office address is: 14 North Adger's Wharf, Charleston, South Carolina 29401
("Grantee").
WITNESSETH: That Grantor for and in consideration of the sum of Ten
Dollars ($10.00) and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, hereby grants, bargains, sells, aliens,
remises, conveys and confirms unto the Grantee all that certain real property
situated in Palm Beach County, Florida, more particularly described on SCHEDULE
A attached hereto and made a part hereof (the "Property").
TOGETHER with all the tenements, hereditaments and appurtenances
thereto belonging or in anywise appertaining.
AND Grantor hereby covenants with Grantee that Grantor is lawfully
seized of the Property in fee simple; that Grantor has good right and lawful
authority to sell and convey the Property; that Grantor hereby fully warrants
the title to the Property and will defend the same against the lawful claims of
all persons claiming by, through or under Grantor; and that the Property is free
of all encumbrances, except those matters listed on SCHEDULE B attached hereto
and made a part hereof.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, Grantor has caused these presents to be signed and
sealed the day and year first above written.
"Grantor"
POLO TRACE MANAGEMENT, INC.,
a Florida corporation
By: ______________________________
Its: ______________________________
By: ______________________________
Its: ______________________________
SCHEDULE A
PROPERTY
See Attached
SCHEDULE B
EXCEPTIONS TO TITLE
(to be attached by Title Company)
STATE OF __________________ )
) ss.
COUNTY OF _________________ )
On ________________, 19___, before me ___________________________, a
Notary Public in and for said State, personally appeared
____________________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity on
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
Notary Public, State of __________
EXHIBIT G
SELLER'S FIRPTA AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee of a
United States real property interest must withhold tax if the transferor is a
foreign person. To inform the transferee that withholding of tax is not
required upon the disposition of a United States real property interest by POLO
TRACE MANAGEMENT, INC., a Florida corporation ("Seller"), the undersigned hereby
certifies the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations); and
2. Seller's U.S. employer tax identification number is
______________________; and
3. Seller's office address is ______________________,
_______________________________________.
Seller understands that this certification may be disclosed to the Internal
Revenue Service by transferee and that any false statement contained herein
could be punished by fine, imprisonment, or both.
The undersigned officer of Seller declares that he/she has examined this
certification and to the best of his/her knowledge and belief it is true,
correct and complete, and he/she further declares that he/she has authority to
sign this document on behalf of Seller.
Dated: _____________, 1998
POLO TRACE MANAGEMENT, INC.,
a Florida corporation
By:__________________________
Its:______________________
EXHIBIT H
CONTRACTS AND OPERATING AGREEMENTS
See Attached
EXHIBIT I
DUE DILIGENCE REQUEST LIST
1. General Property Matters
(a) Preliminary title report.
(b) Phase I environmental site assessment report.
(c) Fuel tank integrity test for any underground storage tanks located on
Property.
(d) Structural engineering report covering the clubhouse and any other
major buildings.
(e) Long-term water quality and quantity reports.
(f) Wetlands delineation or compliance report.
(g) Other plans, specifications, appraisals, market studies, soil and
engineering reports, surveys, and environmental reports and studies in
Seller's possession.
(h) Any other reports reasonably required by the Buyer.
(i) Leases, concession and occupancy agreements, and service, utility and
supply contracts, together with a schedule indicating term, payment
obligation, parties and options to extend or cancel.
(j) Property tax bills and other assessments paid with respect to the
Property for the past five years, copies of all information regarding
collected sales taxes, FICA taxes, gross receipts taxes, income taxes
or any other taxes relating to the Property, any correspondence sent
to or received from the tax assessor or any taxing entity, including
tax appeals.
(k) All permits and licenses that are required to operate the Property,
including, but not limited to, a development agreement, building and
occupancy permit, liquor license, and business permit, copies of any
existing information relating to the Property's past non-compliance
with applicable laws.
(l) Copies of organizational documents of Seller and evidence that all
necessary approvals of Seller to enter into this Agreement have been
obtained.
(m) Such other documents and information as the Buyer may reasonably
request to determine the operating status of the Property and
credit-worthiness of the Owner.
(n) A description of all litigation, mechanic's liens, administrative or
condemnation proceedings, governmental investigations or inquiries,
pending or threatened, affecting the Property, including a description
of any significant disputes with vendors, concessionaires or employees
relating to the Property.
(o) A description of any known defects in the Property.
2. General Business Matters
(a) Name of owner.
(b) Form of ownership (i.e. C Corporation, S Corporation, Limited
Liability Co., Partnership, Limited Partnership and Proprietorship).
(c) Course location.
(d) Number of courses at this location.
(i) Public
(ii) Semi-Private
(iii) Private
Equity
Non-Equity
Hybrid
(e) Certified compiled statements (19___-19___).
(f) Number of daily fee paid rounds (19___-19___).
(g) Number of member rounds (19___-19___).
(h) Number of complimentary rounds (19___-19___).
(i) Total number of rounds (19___-19___).
(j) Description of replay policy.
(k) Annual gross revenues (19___-19___).
(i) Green fees
(ii) Dues
(iii) Initiation fees
(iv) Cart fees
(v) Food & Beverage
(vi) Merchandise
(vii) Other
(l) Net operating income.
(m) Operating statements for the Property for the past 5 years.
(n) Owner's projected operating statements for the Property for 19___ and
19___.
(o) Depreciation.
(p) Amortization.
(q) Balance Sheet.
(i) Total assets
(ii) Total liabilities
(iii) Net worth
(r) Debt.
(i) Secured
Long term
Short term
(ii) Unsecured
Long term
Short term
(s) Carts.
(i) Own
(ii) Lease
(t) Maintenance budget per 18 holes.
(u) Average annual capital expenditures.
(v) Equipment list/age.
(w) Mortgage over basis or negative capital account.
(x) A copy of the closing statement for any re-financing of any debt on
the Property within the last two (2) years.
EXHIBIT J
WARRANTY DISCLOSURE SCHEDULE
See Attached
EXHIBIT K
SELLER'S CERTIFICATE
Pursuant to SECTION 5.1(B) of that certain Purchase and Sale Agreement
(the "Agreement") by and between the undersigned ("Seller") and GOLF TRUST OF
AMERICA, L.P., a Delaware limited partnership ("Buyer") dated as of May 28, 1998
Seller hereby certifies to Buyer that all of its representations and warranties
set forth in ARTICLE 3 of the Agreement are true and correct, subject to the
following: ________________________________________________.
Dated: _________________, 1998
POLO TRACE MANAGEMENT, INC.,
a Florida corporation
By:__________________________
Its:______________________
EXHIBIT L
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT OF OPERATING AGREEMENTS
AND EQUIPMENT LEASES
(The Links at Polo Trace)
THIS ASSIGNMENT OF OPERATING AGREEMENTS AND EQUIPMENT LEASES (this
"Assignment") is entered as of this ____ day of _______, 1998 (the "Effective
Date"), by and between POLO TRACE MANAGEMENT, INC., a Florida corporation
("Assignor") and _______________________________, a ___________________
("Assignee").
a. Assignor has conveyed to Golf Trust of America, L.P., a Delaware
limited partnership ("Golf Trust") that certain real property more particularly
described in SCHEDULE A, attached hereto and incorporated herein (the
"Property") pursuant to that certain Purchase And Sale Agreement dated as of May
28, 1998 (the "Purchase and Sale Agreement") by and between Assignor, as seller,
and Golf Trust, as buyer.
b. Assignee has leased the Property from Golf Trust pursuant to that
certain Lease dated as of _________, 1998, by and between Golf Trust, as lessor,
and Assignee, as lessee.
c. Assignor now desires to assign and transfer to Assignee all of
Assignor's right, title and interest in, to and under the Warranties and
Guaranties, as hereinafter defined, and the Agreements, as hereinafter defined.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, Assignor hereby transfers, bargains and conveys
unto Assignee:
(A) the 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 A attached hereto (the "Operating Agreements"); and
(B) the leases of Tangible Personal Property (as defined in the
Purchase and Sale Agreement) in force and effect as of the Effective Date, as
more particularly set forth on EXHIBIT B attached hereto (the "Equipment
Leases").
ASSIGNOR AND ASSIGNEE FURTHER HEREBY AGREE AND COVENANT AS FOLLOWS:
1. ASSUMPTION. Assignee hereby assumes and agrees to perform the
obligations and duties of Assignor arising under and in connection with the
Operating Agreements and Equipment Leases on and after the Effective Date.
2. WARRANTIES. Assignor does hereby covenant with Assignee that
Assignor has the right to transfer and bargain the Operating Agreements and
Equipment Lease to Assignee (to the extent transferable). In the event that
consent to the assignment of any of the Operating Agreements or Equipment Leases
is a condition precedent to the effectiveness of any such assignment, Assignor
shall utilize its best efforts to obtain such consent.
3. INDEMNIFY, DEFEND AND HOLD HARMLESS.
(x) ASSIGNOR'S COVENANT. Assignor hereby agrees to indemnify,
defend and hold Assignee harmless from and against any and all claims, demands,
liabilities and/or obligations arising out of or resulting from any failure by
Assignor to perform its obligations pursuant to the Operating Agreements and
Equipment Leases prior to the Effective Date.
(y) ASSIGNEE'S COVENANT. Assignee hereby agrees to indemnify,
defend and hold Assignor harmless from and against any and all claims, demands,
liabilities and/or obligations arising out of or resulting from any failure by
Assignee to perform its obligations pursuant to the Operating Agreements and
Equipment Leases on and after the Effective Date.
4. ATTORNEYS' FEES. In the event of any litigation between Assignor
and Assignee arising out of the obligations of Assignor or Assignee under this
Assignment or concerning the meaning or interpretation of any provision
contained herein, the losing party shall pay the prevailing party's costs and
expenses of such litigation, including, without limitation, reasonable
attorneys' fees.
5. LIABILITY. Any liability which may arise as a consequence of the
execution of this Assignment by or on behalf of Assignee or Assignor shall be a
liability of the corporate entity only and not the personal liability of any
director or employee of Assignee or Assignor.
6. SUCCESSORS AND ASSIGNS. This Assignment and all of the terms
hereof shall survive the Effective Date and shall be binding on and inure to the
benefit of the parties hereto, their heirs, executors, administrators,
successors in interest and assigns.
7. COUNTERPARTS. This Assignment may be executed in counterparts,
each of which so executed shall, irrespective of the date of its execution and
delivery, be deemed an original, and the counterparts together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the Effective Date.
"ASSIGNOR"
POLO TRACE MANAGEMENT, INC.,
a Florida corporation
By: ______________________________
Its: ______________________________
"ASSIGNEE"
______________________________,
a__________________________
By:___________________________
Its:__________________________
SCHEDULE A
THE PROPERTY
See Attached
SCHEDULE B
OPERATING AGREEMENTS
None
SCHEDULE C
EQUIPMENT LEASES
See Attached
EXHIBIT M-1
DEVELOPMENT AGREEMENT ESTOPPEL CERTIFICATE
(SELLER)
[to be agreed upon]
EXHIBIT M-2
DEVELOPMENT AGREEMENT ESTOPPEL CERTIFICATE
(DEVELOPER)
[to be agreed upon]
EXHIBIT M-3
DEVELOPMENT AGREEMENT ESTOPPEL CERTIFICATE
(COUNTRY CLUB)
[to be agreed upon]
EXHIBIT N
LENDER'S ESTOPPEL CERTIFICATE
[to be agreed upon]