_______________________________
PURCHASE AND SALE AGREEMENT
_______________________________
Seller: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. AND ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
husband and wife
Buyer: GOLF TRUST OF AMERICA, L.P.,
a Delaware limited partnership
Property: Ohio Prestwick Country Club
Green, Summit County, Ohio
Purchase
Price: $6,400,000.00
Effective
Dated: July 17, 1998
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS; RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . 3
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Act of Bankruptcy. . . . . . . . . . . . . . . . . . . . . . 3
(b) Affiliate. . . . . . . . . . . . . . . . . . . . . . . . . . 3
(c) Authorizations . . . . . . . . . . . . . . . . . . . . . . . 4
(d) ▇▇▇▇ of Sale - Personal Property . . . . . . . . . . . . . . 4
(e) Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(f) Closing Date . . . . . . . . . . . . . . . . . . . . . . . . 4
(g) Closing Statements . . . . . . . . . . . . . . . . . . . . . 4
(h) Current Assets . . . . . . . . . . . . . . . . . . . . . . . 4
(i) Deed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(j) Disclosure Schedule. . . . . . . . . . . . . . . . . . . . . 4
(k) Due Diligence Period . . . . . . . . . . . . . . . . . . . . 5
(l) Employment Agreements. . . . . . . . . . . . . . . . . . . . 5
(m) Environmental Claim. . . . . . . . . . . . . . . . . . . . . 5
(n Environmental Laws . . . . . . . . . . . . . . . . . . . . . 5
(o) Escrow Agent . . . . . . . . . . . . . . . . . . . . . . . . 5
(p) FIRPTA Certificate . . . . . . . . . . . . . . . . . . . . . 5
(q) Golf Club. . . . . . . . . . . . . . . . . . . . . . . . . . 6
(r) Golf Course Lease. . . . . . . . . . . . . . . . . . . . . . 6
(s) Governmental Body. . . . . . . . . . . . . . . . . . . . . . 6
(t) Hazardous Substances . . . . . . . . . . . . . . . . . . . . 6
(u) Improvements . . . . . . . . . . . . . . . . . . . . . . . . 6
(v) Intangible Personal Property . . . . . . . . . . . . . . . . 6
(w) Inventory. . . . . . . . . . . . . . . . . . . . . . . . . . 6
(x) Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(y) Mortgage Indebtedness. . . . . . . . . . . . . . . . . . . . 7
(z) Operating Agreements . . . . . . . . . . . . . . . . . . . . 7
(aa) Owner's Title Policy . . . . . . . . . . . . . . . . . . . . 7
(ab) Permitted Title Exceptions . . . . . . . . . . . . . . . . . 7
(ac) Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(ad) Preliminary Title Report . . . . . . . . . . . . . . . . . . 7
(ae) Property . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(af) Purchase Price . . . . . . . . . . . . . . . . . . . . . . . 8
(ag) Real Property. . . . . . . . . . . . . . . . . . . . . . . . 8
(ah) Restaurant Supplies. . . . . . . . . . . . . . . . . . . . . 8
(ai) SEC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(aj) State. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(ak) Summary Sheet. . . . . . . . . . . . . . . . . . . . . . . . 8
(al) Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
i
(am) Tangible Personal Property . . . . . . . . . . . . . . . . . 8
(an) Title Company. . . . . . . . . . . . . . . . . . . . . . . . 8
(ao) Title Objections . . . . . . . . . . . . . . . . . . . . . . 8
(ap) Seller's Organizational Documents. . . . . . . . . . . . . . 8
(aq) Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . 8
(ar) WARN Act . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.2 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . 9
(a) Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(b) Section References . . . . . . . . . . . . . . . . . . . . . 9
(c) Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(d) Construction . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 2
PURCHASE AND SALE; PAYMENT OF PURCHASE PRICE . . . . . . . . . . . . . . . . . . . 9
2.1 Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.2 Due Diligence Period. . . . . . . . . . . . . . . . . . . . . . . . 9
(a) Site Inspection. . . . . . . . . . . . . . . . . . . . . . . 9
(b) Inspection of Documents. . . . . . . . . . . . . . . . . . . 10
(c) Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(d) Preliminary Title Report . . . . . . . . . . . . . . . . . . 11
(e) Disclosure Schedule. . . . . . . . . . . . . . . . . . . . . 12
(f) UCC Search . . . . . . . . . . . . . . . . . . . . . . . . . 12
(g) Audit. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(h) Lease. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.3 Payment of Purchase Price . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 3
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . . . . . . . . . . 13
3.1 Organization and Power. . . . . . . . . . . . . . . . . . . . . . . 13
3.2 Authorization and Execution . . . . . . . . . . . . . . . . . . . . 13
3.3 Noncontravention. . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.4 No Special Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.5 Compliance with Existing Laws . . . . . . . . . . . . . . . . . . . 14
3.6 Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.7 Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.8 Operating Agreements. . . . . . . . . . . . . . . . . . . . . . . . 15
3.9 Warranties and Guaranties . . . . . . . . . . . . . . . . . . . . . 15
3.10 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.11 Condemnation Proceedings; Roadways. . . . . . . . . . . . . . . . . 16
3.12 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.13 Labor Disputes and Agreements . . . . . . . . . . . . . . . . . . . 17
3.14 Financial Information . . . . . . . . . . . . . . . . . . . . . . . 17
3.15 Organizational Documents. . . . . . . . . . . . . . . . . . . . . . 17
3.16 Operation of Property . . . . . . . . . . . . . . . . . . . . . . . 17
ii
3.17 Bankruptcy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.18 Land Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.19 Hazardous Substances. . . . . . . . . . . . . . . . . . . . . . . . 18
3.20 Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.21 Curb Cuts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.22 Leased Property . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.23 Sufficiency of Certain Items. . . . . . . . . . . . . . . . . . . . 20
3.24 Survival of Representations . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 4
BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. . . . . . . . . . . . . . . . . 20
4.1 Organization and Power. . . . . . . . . . . . . . . . . . . . . . . 20
4.2 Noncontravention. . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.3 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.4 Bankruptcy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.5 Authorization and Execution . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 5
CONDITIONS AND ADDITIONAL COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . 21
5.1 As to Buyer's Obligations . . . . . . . . . . . . . . . . . . . . . 21
(a) Seller's Deliveries. . . . . . . . . . . . . . . . . . . . . 21
(b) Representations, Warranties and Covenants. . . . . . . . . . 21
(c) Title Insurance. . . . . . . . . . . . . . . . . . . . . . . 22
(d) Title to Property. . . . . . . . . . . . . . . . . . . . . . 22
(e) Condition of Property. . . . . . . . . . . . . . . . . . . . 22
(f) Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . 22
(g) Liquor License . . . . . . . . . . . . . . . . . . . . . . . 23
5.2 As to Seller's Obligations. . . . . . . . . . . . . . . . . . . . . 23
(a) Buyer's Deliveries . . . . . . . . . . . . . . . . . . . . . 23
(b) Representations, Warranties and Covenants. . . . . . . . . . 23
ARTICLE 6
CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.2 Seller's Deliveries . . . . . . . . . . . . . . . . . . . . . . . . 24
(a) Seller's Certificate . . . . . . . . . . . . . . . . . . . . 24
(b) The Deed . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(c) The ▇▇▇▇ of Sale - Personal Property . . . . . . . . . . . . 24
(d) Evidence of Title. . . . . . . . . . . . . . . . . . . . . . 24
(e) Title Requirements . . . . . . . . . . . . . . . . . . . . . 24
(f) The FIRPTA Certificate . . . . . . . . . . . . . . . . . . . 24
(g) Warranties . . . . . . . . . . . . . . . . . . . . . . . . . 24
(h) Organizational Documents . . . . . . . . . . . . . . . . . . 24
iii
(i) Board Resolutions. . . . . . . . . . . . . . . . . . . . . . 24
(j) Certificate of Occupancy . . . . . . . . . . . . . . . . . . 25
(k) Evidence of Bulk Sales Compliance. . . . . . . . . . . . . . 25
(l) Insurance Policies . . . . . . . . . . . . . . . . . . . . . 25
(m) Improvements Plans . . . . . . . . . . . . . . . . . . . . . 25
(n) Communication; Addresses . . . . . . . . . . . . . . . . . . 25
(o) Tax Bills. . . . . . . . . . . . . . . . . . . . . . . . . . 25
(p) Surveys. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(q) Tournament Schedule. . . . . . . . . . . . . . . . . . . . . 25
(r) Accounts Receivable. . . . . . . . . . . . . . . . . . . . . 26
(s) Payoff Statement . . . . . . . . . . . . . . . . . . . . . . 26
(t) Tenant Notices . . . . . . . . . . . . . . . . . . . . . . . 26
(u) Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . 26
6.3 Buyer's Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . 26
(a) Purchase Price . . . . . . . . . . . . . . . . . . . . . . . 26
(b) Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . 26
6.4 Mutual Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . 26
(a) Closing Statements . . . . . . . . . . . . . . . . . . . . . 26
(b) Liquor License Transfer Documents. . . . . . . . . . . . . . 26
(c) Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . 27
6.5 Closing Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.6 Income and Expense Allocations. . . . . . . . . . . . . . . . . . . 27
(a) Rents and Fees . . . . . . . . . . . . . . . . . . . . . . . 27
(b) Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(c) Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . 28
(d) Fuel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(e) Municipal Improvement Liens. . . . . . . . . . . . . . . . . 28
(f) License and Permit Fees. . . . . . . . . . . . . . . . . . . 28
(g) Income and Expenses. . . . . . . . . . . . . . . . . . . . . 28
(h) Miscellaneous Prorations . . . . . . . . . . . . . . . . . . 28
6.7 Sales Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.8 Post-Closing Adjustments. . . . . . . . . . . . . . . . . . . . . . 28
(a) Accounts Receivable. . . . . . . . . . . . . . . . . . . . . 28
(b) Availability of Bills. . . . . . . . . . . . . . . . . . . . 28
ARTICLE 7
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.1 Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.2 Risk of Loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.3 Real Estate Broker. . . . . . . . . . . . . . . . . . . . . . . . . 29
7.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.5 Liquor Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . 30
iv
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. . . . . . . . . . . . . . . . . . . . . . . . 32
8.4 Termination by Seller . . . . . . . . . . . . . . . . . . . . . . . 32
8.5 Costs and Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 9
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.1 Completeness; Modification. . . . . . . . . . . . . . . . . . . . . 33
9.2 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.3 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . 33
9.4 Days. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.6 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.7 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.8 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.9 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.10 Incorporation by Reference. . . . . . . . . . . . . . . . . . . . . 34
9.11 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.12 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . 35
9.13 No Partnership. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.14 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . 35
v
EXHIBITS
Exhibit A - Legal Description of the Land
Exhibit B - Description of Improvements
Exhibit C - Tangible Personal Property
Exhibit D - Intangible Personal Property
Exhibit E - ▇▇▇▇ of Sale - Personal Property
Exhibit F - Deed
Exhibit G - FIRPTA Affidavit of Seller
Exhibit H - Contracts and Operating Agreements
Exhibit I - Due Diligence List
Exhibit J - Warranty Disclosure Schedule
Exhibit K - Seller's Certificate
vi
PURCHASE AGREEMENT
Summary Sheet
Buyer: GOLF TRUST OF AMERICA, L.P., a Delaware limited partnership
Seller: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, husband and wife
Effective
Date: July 17, 1998
Golf Course: Ohio Prestwick Country Club
Green, Summit County, Ohio
Trade Name:
Purchase Six Million Four Hundred Thousand
Price: and no/100 Dollars ($6,400,000.00)
Notice Address ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
of Seller: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
with a ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
copy to: ▇▇▇▇, Sicuro & Simon
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Notice Address
of Buyer: Golf Trust of America, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a
copy to: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
vii
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into by and
between Buyer and Seller.
RECITALS:
A. Seller is the owner of that certain Ohio Prestwick Country Club and
related improvements located on the real property more particularly described in
EXHIBIT A attached hereto (the "Land").
B. Subject to the terms of this Agreement, Seller hereby agrees to sell
to Buyer, and Buyer hereby agrees to buy from Seller, all of Seller's right,
title and interest in and to the following:
1. The Land, together with the golf course, driving range, putting
greens, clubhouse facilities, snack bar, restaurant, pro shop, buildings,
structures, parking lots, improvements, fixtures and other items of real estate
located on the Land, as more particularly described in EXHIBIT B attached hereto
(the "Improvements").
2. All rights, privileges, easements and appurtenances to the Land and
the Improvements, if any, including, without limitation, all of Seller's right,
title and interest, if any, in and to all mineral and water rights and all
easements, rights-of-way and other appurtenances used or connected with the
beneficial use or enjoyment of the Land and the Improvements, including, without
limitation, concession agreements for spas and the like (the Land, the
Improvements and all such easements and appurtenances are sometimes collectively
hereinafter referred to as the "Real Property").
3. All items of tangible personal property and fixtures (if any) owned
or leased by Seller and located on or used in connection with the Real Property,
including, but not limited to, machinery, equipment, furniture, furnishings,
movable walls or partitions, phone systems and other control systems, restaurant
equipment,computers or trade fixtures, golf course operation and maintenance
equipment, including mowers, tractors, aerators, sprinklers, sprinkler and
irrigation facilities and equipment, valves or rotors, driving range equipment,
golf carts, athletic training equipment, office equipment or machines, other
decorations, and equipment or machinery of every kind or nature located on or
used in connection with the operation of the Real Property whether on or
off-site, including all warranties and guaranties associated therewith, but
specifically excluding any and all golf carts owned or leased by Seller (the
"Tangible Personal
1
Property"). A schedule of the Tangible Personal Property is attached to this
Agreement as Exhibit C, indicating whether such Tangible Personal Property is
owned or leased.
4. All intangible personal property owned or possessed by Seller and
used in connection with the ownership, operation, leasing or maintenance of the
Real Property or the Tangible Personal Property, and any and all trademarks and
copyrights, trade names (including "Prestwick", "Ohio Prestwick Country Club",
and "Ohio Prestwick") 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 (a) any of the aforesaid rights that Buyer elects
not to acquire and (b) the Current Assets, as hereinafter defined, but
specifically excluding all goodwill attributable to the Property (collectively,
the "Intangible Personal Property"). A schedule of the Intangible Personal
Property is attached to this Agreement as Exhibit D. (The Real Property,
Tangible Personal Property and Intangible Personal Property are sometimes
collectively referred to as the "Property".)
C. Upon the acquisition by the Buyer of the Property, the Buyer will
lease the Property to a third-party lessee pursuant to a separate lease (the
"Golf Course Lease").
NOW, THEREFORE, in consideration of the mutual covenants, promises and
undertakings of the parties hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, it is agreed:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
1.1 DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meanings set forth on the Summary Sheet. The following terms shall
have the indicated meanings:
(a) "ACT OF BANKRUPTCY" shall mean if a party to this agreement or
any general partner thereof shall (a) apply for or consent to the appointment
of, or the taking of possession by, a receiver, custodian, trustee or liquidator
of itself or of all or a substantial part of its Property, (b) admit in writing
its
2
inability to pay its debts as they become due, (c) make a general assignment for
the benefit of its creditors, (d) file a voluntary petition or commence a
voluntary case or proceeding under the Federal Bankruptcy Code (as now or
hereafter in effect) or any new bankruptcy statute, (e) be adjudicated bankrupt
or insolvent,(f) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up or composition or
adjustment of debts, (g) fail to controvert in a timely and appropriate manner,
or acquiesce in writing to, any petition filed against it in an involuntary case
or proceeding under the Federal Bankruptcy Code (as now or hereafter in
effect)or any new bankruptcy statute, or (h) take any corporate or partnership
action for the purpose of effecting any of the foregoing; or if a proceeding or
case shall be commenced, without the application or consent of a party hereto or
any general partner thereof, in any court of competent jurisdiction seeking (1)
the liquidation, reorganization, dissolution or winding-up, or the composition
or readjustment of debts, of such party or general partner, (2) the appointment
of a receiver, custodian, trustee or liquidator or such party or general partner
or all or any substantial part of its assets, or (3) other similar relief under
any law relating to bankruptcy, insolvency, reorganization, winding-up or
composition or adjustment of debts, and such proceeding or case shall continue
undismissed; or an order (including an order for relief entered in an
involuntary case under the Federal Bankruptcy Code, as now or hereafter in
effect) judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of sixty
(60)consecutive days.
(b) "AFFILIATE" shall mean, as applied to any Person, any other
Person directly or indirectly controlling, controlled by, or under common
control with, that Person.
(c) "AUTHORIZATIONS" shall mean all licenses, permits and
approvals required by any governmental or quasi-governmental agency, body or
officer for the ownership, operation and use of the Property or any part thereof
as a golf course with the existing uses and operations, including clubhouse, bar
and related facilities, as applicable.
(d) "▇▇▇▇ OF SALE - PERSONAL PROPERTY" shall mean a ▇▇▇▇ of sale
conveying title to the Tangible Personal Property and Intangible Personal
Property from Seller to Buyer, substantially in the form of Exhibit E attached
hereto.
(e) "CLOSING" shall mean the time the Deed and each of the
deliveries to be made by Seller (as provided in Section 6.2)and Buyer (as
provided in Section 6.3) are made and each of the Closing conditions of Buyer
and Seller in Sections 5.1 and 5.2, respectively, have been satisfied or waived.
3
(f) "CLOSING DATE" shall mean the date on which the Closing
occurs.
(g) "CLOSING STATEMENTS" shall have the meaning set forth in
Section 6.4(a).
(h) "CURRENT ASSETS" shall mean cash, accounts receivable and
Inventory (as hereinafter defined) held by Seller prior to the Closing Date.
(i) "DEED" shall mean a grant deed or special warranty deed,
substantially in the form of EXHIBIT F attached hereto (or lease assignment, if
the Property is owned by Seller pursuant to a ground lease), in form and
substance satisfactory to Buyer, conveying the title of Seller to the Real
Property, with such grant or warranty covenants of title from Seller to Buyer as
are customary in the state in which the Property is located, subject only to
Permitted Title Exceptions. If there is any difference between the description
of the Land, as shown on EXHIBIT A attached hereto and the description of the
Land as shown on the Survey, the description of the Land to be contained in the
Deed and the description of the Land set forth in the Owner's Title Policy (as
defined herein) shall conform to the description shown on the Survey.
(j) "DISCLOSURE SCHEDULE" shall have the meaning set forth in
Section 2.2(e).
(k) "DUE DILIGENCE PERIOD" shall mean the period commencing at
9:00 a.m., Eastern Standard time, on the Effective Date, and continuing through
5:00 p.m., Eastern Standard time, July 17, 1998.
(l) "EMPLOYMENT AGREEMENTS" shall mean all employment agreements,
written or oral, between Seller or its managing agent and the persons employed
with respect to the Property in effect as of the Effective Date.
(m) "ENVIRONMENTAL CLAIM" shall mean any administrative,
regulatory or judicial action, suit, demand, letter, claim, lien, notice of
non-compliance or violation, investigation or proceeding relating in any way to
any Environmental Laws or any permit issued under any Environmental Law
including, without limitation, (i) by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Laws, and (ii) by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Substances or arising from alleged
injury or threat of injury to health, safety or the environment.
4
(n) "ENVIRONMENTAL LAWS" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601, et seq.; the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq.; the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq.; the Hazardous Materials Transportation Act, as amended, 49
U.S.C. Section 1801, et seq.; the Superfund Amendments and reauthorization Act
of 1986, Pub. L. 99-499 and 99-563; the Occupational Safety and Health Act of
1970, as amended, 29 U.S.C. Section 651, et seq.; the Clean Air Act, as amended,
42 U.S.C. Section 7401, et seq.; the Safe Drinking Water Act, as amended, 42
U.S.C. Section 201, et seq.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Section 1251, et seq.; and all federal, state and local
environmental health and safety statutes, ordinance, codes, rules, regulations,
orders and decrees regulating, relating to or imposing liability or standards
concerning or in connection with Hazardous Substances.
(o) "ESCROW AGENT" shall mean the Title Company.
(p) "FIRPTA CERTIFICATE" shall mean the affidavit of Seller under
Section 1445 of the Internal Revenue Code certifying that Seller is not a
foreign corporation, foreign partnership, foreign trust, foreign estate or
foreign person (as those terms are defined in the Internal Revenue Code and the
Income Tax Regulations), substantially in the form of EXHIBIT G attached hereto.
(q) "GOLF CLUB" shall mean any organization, club or group whereby
memberships are offered by Seller for purchase in connection with golfing
privileges at the Property.
(r) "GOLF COURSE LEASE" shall have the meaning set forth in
Recital C.
(s) "GOVERNMENTAL BODY" shall mean any federal state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
(t) "HAZARDOUS SUBSTANCES" shall mean any substance, material,
waste, gas or particulate matter which is regulated by any local, state or
federal governmental authority, including but not limited to any material or
substance which is (i) defined as a "hazardous waste", "hazardous material", or
"restricted hazardous waste" or words of similar import under any provision of
any Environmental Law; (ii) petroleum or petroleum products;(iii) asbestos; (iv)
polychlorinated biphenyl; (v) radioactive material; (vi) radon gas; (vii)
designated as a "hazardous substance" pursuant to Section 311 of the Clean 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
5
U.S.C. Section 6903); or (ix) defined as a "hazardous substance" pursuant to
Section 101 of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601. et sea. (42 U.S.C. Section 9601).
(u) "IMPROVEMENTS" shall have the meaning set forth in Recital
B(1).
(v) "INTANGIBLE PERSONAL PROPERTY" shall have the meaning set
forth in Recital B(4).
(w) "INVENTORY" shall mean the merchandise located in any pro shop
or similar facility and held for sale in the ordinary course of Seller's
business.
(x) "LAND" shall have the meaning set forth in Recital A.
(y) "MORTGAGE INDEBTEDNESS" shall mean any indebtedness of Seller
which is secured by a mortgage or deed of trust on the Property.
(z) "OPERATING AGREEMENTS" shall mean any management agreements,
maintenance or repair contracts, service contracts, supply contracts and other
agreements, if any, in effect with respect to the construction, ownership,
operation, occupancy or maintenance of the Property in force and effect as of
the Effective Date, as more particularly set forth on Exhibit H attached hereto.
(aa) "OWNER'S TITLE POLICY" shall mean a 1970 Form B American Land
Title Association extended coverage owner's policy of title insurance issued to
Buyer by the Title Company, pursuant to which the Title Company insures Buyer's
ownership of fee simple title (or ground lease interest, as applicable) to the
Real Property (including the marketability thereof) subject only to Permitted
Title Exceptions and shall include those title endorsements required by Buyer.
The Owner's Title Policy shall insure Buyer in the amount designated by Buyer
and shall be acceptable in form and substance to Buyer.
(ab) "PERMITTED TITLE EXCEPTIONS" shall mean those exceptions to
title to the Real Property that are satisfactory to Buyer as determined under
this Agreement, and as evidenced by a pro forma title report.
(ac) "PERSON" means and includes natural persons, corporations,
limited partnerships, limited liability companies, general partnerships, joint
stock companies, joint ventures, associations, companies, trusts, banks, trusts
companies, land trusts, business trusts, Indian tribes or other organizations,
6
whether or not legal entities, and governments and agencies and political
subdivisions thereof.
(ad) "PRELIMINARY TITLE REPORT" shall have the meaning set forth in
Section 2.2(d).
(ae) "PROPERTY" shall have the meaning set forth in Recital B(4).
(af) "PURCHASE PRICE" shall mean Six Million Three Hundred
Twenty-Five Thousand and No/100 Dollars ($6,400,000.00).
(ag) "REAL PROPERTY" shall have the meaning set forth in Recital
B(2).
(ah) "RESTAURANT SUPPLIES" shall mean the consumable goods,
supplies (including beverages) and all silverware, glassware, napkins,
tablecloths, paper goods and related goods necessary to efficiently operate the
restaurant, bar, lounge or snack shop located upon or within the Improvements.
(ai) "SEC" shall mean the United States Securities and Exchange
Commission.
(aj) "STATE" shall mean the state or commonwealth in which the
Property is located.
(ak) "SUMMARY SHEET" shall mean the summary page attached to this
Agreement and incorporated herein by reference.
(al) "SURVEY" shall mean the survey prepared pursuant to Section
2.2(c).
(am) "TANGIBLE PERSONAL PROPERTY" shall have the meaning set forth
in Recital B(3).
(an) "TITLE COMPANY" shall mean a title insurance company selected
by Buyer and reasonably acceptable to Seller and authorized to conduct a title
insurance business in the State.
(ao) "TITLE OBJECTIONS" shall have the meaning set forth in Section
2.2(d).
(ap) "SELLER'S ORGANIZATIONAL DOCUMENTS" shall mean the current
organizational documents of Seller.
(aq) "UTILITIES" shall mean public sanitary and storm sewers,
natural gas, telephone, public water facilities, electrical facilities and all
other utility facilities and services necessary for the operation and occupancy
of the Property.
7
(ar) "WARN ACT" shall mean the Worker Adjustment Restraining and
Notification Act, as amended.
1.2 RULES OF CONSTRUCTION. The following rules shall apply to the
construction and interpretation of this Agreement:
(a) GENDER. Singular words shall connote the plural number as
well as the singular and vice versa, and the masculine shall include the
feminine and the neuter.
(b) SECTION REFERENCES. All references herein to particular
articles, sections, subsections, clauses or exhibits are references to articles,
sections, subsections, clauses or exhibits of this Agreement.
(c) HEADINGS. The table of contents and headings contained herein
are solely for convenience of reference and shall not constitute a part of this
Agreement nor shall they affect its meaning, construction or effect.
(d) CONSTRUCTION. Each party hereto and its counsel have reviewed
and revised (or requested revisions of) this Agreement and have participated in
the preparation of this Agreement, and therefore any usual rules of construction
requiring that ambiguities are to be resolved against a particular party shall
not be applicable in the construction and interpretation of this Agreement or
any exhibits hereto.
ARTICLE 2
PURCHASE AND SALE; PAYMENT OF PURCHASE PRICE
2.1 PURCHASE AND SALE. Seller agrees to sell and Buyer agrees to buy
the Property for the Purchase Price.
2.2 DUE DILIGENCE PERIOD.
(a) SITE INSPECTION. Buyer shall have the right, during the Due
Diligence Period, and thereafter if Buyer notifies Seller that Buyer has elected
to proceed to Closing in the manner described below, to enter upon the Real
Property and to perform, at Seller's expense, such surveying, engineering, and
environmental studies and investigations as Buyer may deem appropriate. If such
tests, studies and investigations warrant, in Buyer's sole, absolute and
unreviewable discretion, the purchase of the Property for the purposes
contemplated by Buyer, then Buyer may elect to proceed to Closing and shall so
notify Seller and the Escrow Agent, in writing, prior to the expiration of the
Due Diligence Period. If for any reason Buyer does not so notify Seller and
Escrow Agent of its determination to proceed to Closing prior to the expiration
of the Due Diligence Period, or if Buyer notifies Seller and Escrow
8
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, the ▇▇▇▇▇▇▇ Money Deposit will be
returned to Buyer, and, if requested by Seller, Buyer will deliver such reports
and materials to Seller.
(b) INSPECTION OF DOCUMENTS. During the Due Diligence Period,
Seller shall make available to Buyer, its agents, auditors, engineers, attorneys
and other designees, for inspection and/or copying, copies of all existing
architectural and engineering studies, surveys, title insurance policies, zoning
and site plan materials, correspondence, environmental audits and reviews,
books, records, tax returns, bank statements, financial statements, fee
schedules and any and all other material or information relating to the Property
which are in, or come into, Seller's possession or control, or which Seller may
attain. Such information is more particularly described in EXHIBIT I attached
hereto, as the same may be amended or supplemented by Seller from time to time.
(c) SURVEY. Within fifteen (15) days from the Effective Date, if
requested by Buyer, Seller shall deliver to Buyer an ALTA/ACSM survey or a
boundary survey, as reasonably required by Buyer, of the Land and the
Improvements, prepared by a surveyor licensed to practice as such in the State,
bearing a date not earlier than sixty (60) days from the date of its delivery
and certified to both Buyer, Seller and the Title Company (and any lender or
other party designated by Buyer), showing the legal description of the Land, all
dimensions thereof, and showing the location of Improvements on the Land and the
setbacks thereof from the property line, as well as the setbacks required by
applicable zoning laws or regulations (the "Survey"). The Survey shall locate
all easements which serve and affect the Land. The Survey shall reflect that no
buildings or improvements located on any other property encroach upon the Land
and that the Improvements located upon the Land do not encroach upon any other
property. The surveyor preparing the Survey shall certify that (i) the Survey
is an accurate Survey of the Land and the Improvements, (ii) that the Survey was
made under the surveyor's supervision, (iii) that the Survey meets (a) the
requirements of the Title Company for the issuance of the Owner's Title Policy
free of any general survey exception, and (b) the minimum technical standards
for land boundary surveys with improvements, set forth by applicable statutes or
applicable professional organizations, and (iv) all buildings and other
structures and their relation to the property lines are shown and that there are
no encroachments, overlaps, boundary line disputes, easements, or claims of
easements visible on the ground, other than those shown on the Survey. If Buyer
has any objection to Survey matters, the same shall be treated for all
9
purposes as Title Objections within the provisions of this Agreement.
(d) PRELIMINARY TITLE REPORT. Seller agrees to provide to Buyer,
within five (5) business days following the Effective Date, a copy of any
existing title insurance policies which Seller may have in its possession or
control covering the Real Property, together with legible copies of all
exception documents referred to therein. During the Due Diligence Period,
Buyer, at its expense, shall cause an examination of title to the Property to be
made and a preliminary title report to be issued (the "Preliminary Title
Report"), and, prior to the expiration of the Due Diligence Period, shall notify
Seller of any defects in title shown by such examination that Buyer is unwilling
to accept by delivering a pro forma copy of the Preliminary Title Report that
reflects such unacceptable defects in title, which shall be designated as the
Title Objections. Within ten (10) days after such notification, Seller shall
notify Buyer whether Seller is willing to cure such defects. If Seller is
willing to cure such defects, Seller shall act promptly and diligently to cure
such defects at its expense. If any of such defects consist of mortgages, deeds
of trust, construction or mechanics' liens, tax liens or other liens or charges
in a fixed sum or capable of computation as a fixed sum, then, to that extent,
and notwithstanding the foregoing, Seller shall be obligated to pay and
discharge such defects at Closing. For such purposes, Seller may use all or a
portion of the cash to close. If Seller is unable to cure such defects by
Closing, after having attempted to do so diligently and in good faith, Buyer
shall elect (1) to waive such defects and proceed to Closing without any
abatement in the Purchase Price, or (2) to terminate this Agreement. Seller
shall not, after the date of this Agreement, subject the Property to any liens,
encumbrances, leases, covenants, conditions, restrictions, easements or other
title matters or seek any zoning changes or take any other action which may
affect or modify the status of title without Buyer's prior written consent. All
title matters revealed by Buyer's title examination and not objected to by Buyer
as provided above shall be deemed Permitted Title Exceptions. If Buyer shall
fail to examine title and notify Seller of any such Title Objections by the end
of the Due Diligence Period, all such title exceptions (other than those
rendering title unmarketable and those that are to be paid at Closing as
provided above) shall be deemed Permitted Title Exceptions. Notwithstanding the
foregoing, Buyer shall not be required to take title to the Property subject to
any matters which may arise subsequent to the effective date of its examination
of title to the Property made during the Due Diligence Period.
(e) DISCLOSURE SCHEDULE. Seller shall deliver to Buyer within
fourteen (14) days after the Effective Date a disclosure schedule that
accurately and completely identifies and describes (a) all Employment Agreements
(including name of employee, social
10
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) AUDIT. Seller shall deliver to Buyer audited financial
statements for the Golf Course within fifteen (15) days after the Effective
Date. Such audit shall be performed by nationally-recognized certified public
accountants licensed to practice in front of the SEC and shall comply with the
filing requirements of GTA, Inc. with the SEC.
(h) LEASE. Prior to the end of the Due Diligence Period, Buyer
shall have entered into a lease agreement for the Property with a tenant
satisfactory to Buyer.
2.3 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid to
Seller at closing as set forth in SECTION 6.3 below.
ARTICLE 3
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
To induce Buyer to enter into this Agreement and to purchase the Property,
and to pay the Purchase Price therefor, Seller hereby makes the following
representations, warranties and covenants with respect to the Property, subject
to the Warranty Disclosure Schedule attached hereto as EXHIBIT J, upon each of
which Seller acknowledges and agrees that Buyer is entitled to rely and has
relied:
3.1 ORGANIZATION AND POWER. Seller is duly formed or organized, validly
existing and in good standing under the laws of 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.
11
3.2 AUTHORIZATION AND EXECUTION. This Agreement has been, and each of
the agreements and certificates of Seller to be delivered to Buyer at Closing as
provided in Section 5.1 will be, duly authorized by all necessary action on the
part of Seller, has been duly executed and delivered by Seller, constitutes the
valid and binding agreement of Seller and is enforceable against Seller in
accordance with its terms. There is no other person or entity who has an
ownership interest in the Property or whose consent is required in connection
with Seller's performance of its obligations under this Agreement. All action
required pursuant to this Agreement necessary to effectuate the transactions
contemplated herein has been, or will at Closing be, taken promptly and in good
faith by Seller and its representatives and agents.
3.3 NONCONTRAVENTION. The execution and delivery of, and the
performance by Seller of its obligations under, this Agreement do not and will
not contravene, or constitute a default under, any provision of applicable law
or regulation, Seller's Organizational Documents or any agreement, judgment,
injunction, order, decree or other instrument binding upon Seller, or result in
the creation of any lien or other encumbrance on any asset of Seller. There are
no outstanding agreements (written or oral) pursuant to which Seller (or any
predecessor to or representative of Seller) has agreed to contribute or has
granted an option or right of first refusal to purchase the Property or any part
thereof. Other than the rights of tenants, as tenants only, under any leases of
any portion of the Property (copies of which have been provided to Buyer by
Seller), there are no purchase contracts, options or other agreements of any
kind, written or oral, recorded or unrecorded, whereby any person or entity
other than Seller will have acquired or will have any basis to assert any right,
title or interest in, or right to possession, use, enjoyment or proceeds of, all
or any portion of the Property. There are no rights, subscriptions, warrants,
options, conversion rights or agreements or any kind outstanding to purchase or
to otherwise acquire any interest or profit participation of any kind in the
Property or any part thereof.
3.4 NO SPECIAL TAXES. Seller has no knowledge of, nor has it received
any notice of, any special taxes or assessments relating to the Property or any
part thereof, including taxes relating to the business of the Property, or any
planned public improvements that may result in a special tax or assessment
against the Property, that are not otherwise disclosed in the Preliminary Title
Report. To the best of Seller's knowledge, there is not any proposed increase
in the assessed valuation of the Real Property 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
12
effect, and no provision, condition or limitation of any of the Authorizations
has been breached or violated. Seller has not misrepresented or failed to
disclose any relevant fact in obtaining all Authorizations, and Seller has no
knowledge of any change in the circumstances under which any of those
Authorizations were obtained that result in their termination, suspension,
modification or limitation. Seller has not taken any action (or failed to take
any action), the omission of which would result in the revocation of any of the
Authorizations. Seller has no knowledge, nor has it received notice within the
past three years, of any existing or threatened violation of any provision of
any applicable building, zoning, subdivision, environmental or other
governmental ordinance, resolution, statute, rule, order or regulation,
including but not limited to those of environmental agencies or insurance boards
of underwriters, with respect to the ownership, operation, use, maintenance or
condition of the Property or any part thereof, or requiring any repairs or
alterations other than those that have been made prior to the Effective Date.
3.6 REAL PROPERTY. To the best of Seller's knowledge, (i) the
Improvements conform in all respects to all legal requirements, (ii) all
easements necessary or appropriate for the use or operation of the Property have
been obtained, (iii) all contractors and subcontractors retained by Seller who
have performed work on or supplied materials to the Property have been fully
paid, and all materials used at or on the Property have been fully paid for,
(iv) the Improvements have been completed in all material respects in a
workmanlike manner of first-class quality, and (v) all equipment necessary or
appropriate for the use or operation of the Property has been installed and is
presently operative in good working order. Seller has not received any written
notice which is still in effect that there is, and, to the best of Seller's
knowledge, there does not exist, any violation of a condition or agreement
contained in any easement, restrictive covenant or any similar instrument or
agreement affecting the Real Property, or any portion thereof.
3.7 PERSONAL PROPERTY. All of the Tangible Personal Property and
Intangible Personal Property being conveyed by Seller to Buyer is free and clear
of all liens and encumbrances and will be so on the Closing Date and Seller has
good, merchantable title thereto and the right to convey same in accordance with
the terms of this Agreement.
3.8 OPERATING AGREEMENTS. Each of the Operating Agreements may be
terminated upon not more than thirty (30) days prior written notice and without
the payment of any penalty, fee, premium or other amount. Seller has performed
all of its obligations under each of the Operating Agreements and no fact or
circumstance has occurred which, by itself or with the passage of time or the
giving of notice or both, would constitute a default under any of the
13
Operating Agreements. Seller shall not enter into any new Operating Agreements,
supply contract, vending or service contract or other agreements with respect to
the Property, nor shall Seller enter into any agreements modifying the Operating
Agreements, unless (a) any such agreement or modification will not bind Buyer or
the Property after the Closing Date, or (b) Seller has obtained Buyer's prior
written consent to such agreement or modification. Seller acknowledges that
Buyer will not assume any of the Operating Agreements and none of the Operating
Agreements will be binding on Buyer or the Property after Closing.
3.9 WARRANTIES AND GUARANTIES. Seller shall not before or after
Closing, release or modify any warranties or guarantees, if any, of
manufacturers, suppliers and installers relating to the Improvements and the
Personal Property or any part thereof, except with the prior written consent of
Buyer.
3.10 INSURANCE. All of Seller's insurance policies are valid and in full
force and effect, all premiums for such policies were paid when due and premiums
due as of the Closing Date for such policies (and any replacements thereof)
shall be paid by Seller on or before the due date therefor. Seller shall pay
all premiums on, and shall not cancel or voluntarily allow to expire, any of
Seller's insurance policies unless such policy is replaced, without any lapse of
coverage, by another policy or policies providing coverage at least as extensive
as the policy or policies being replaced. Seller has not received any notice
from any insurance company of any defect or inadequacies in the Property to any
part thereof which would adversely affect the insurability of the Property, or
which would increase the cost of insurance beyond that which would ordinarily
and customarily be charged for similar properties in the vicinity of the Real
Property. The Property is fully insured in accordance with prudent and customary
practice.
3.11 CONDEMNATION PROCEEDINGS; ROADWAYS. Seller has received no notice
of any condemnation or eminent domain proceeding pending or threatened against
the Property or any part thereof. Seller has no knowledge of any change or
proposed change in the route, grade or width of, or otherwise affecting, any
street or road adjacent to or serving the Real Property. To the best of
Seller's knowledge, no fact or condition exists which would result in the
termination or material impairment of access to the Real Property from adjoining
public or private streets or ways or which could result in discontinuation of
presently available or otherwise necessary sewer, water, electric, gas,
telephone or other utilities or services.
3.12 LITIGATION. Except as disclosed in writing to Seller, there is no
action, suit or proceeding pending or known to be threatened against or
affecting Seller or any of its properties in any court, before any arbitrator or
before or by any Governmental
14
Body which (a) in any manner raises any question affecting the validity or
enforceability of this Agreement or any other agreement or instrument to which
Seller is a party or by which it is bound and that is or is to be used in
connection with, or is contemplated by, this Agreement, (b) could materially and
adversely affect the business, financial position or results of operations of
Seller, (c) could materially and adversely affect the ability of Seller to
perform its obligations under this Agreement, or under any document to be
delivered pursuant hereto, (d) could create a lien on the Property, any part
thereof or any interest therein, (e) the subject matter of which concerns any
past or present employee of Seller or its managing agent, or (f) could otherwise
adversely materially affect the Property, any part thereof or any interest
therein or the use, operation, condition or occupancy thereof.
3.13 LABOR DISPUTES AND AGREEMENTS. There are no labor disputes pending
or, to the best of Seller's knowledge, threatened as to the operation or
maintenance of the Property or any part thereof. Seller is not a party to any
union or other collective bargaining agreement with employees employed in
connection with the ownership, operation or maintenance of the Property. Seller
is not a party to any employment contracts or agreements, other than the
Employment Agreements, and neither Seller nor its managing agent will, between
the Effective Date and the Closing Date, enter into any new employment contracts
or agreements, amend any existing Employment Agreement, except with the prior
written consent of Buyer. Seller acknowledges that Buyer will not assume any of
the Employment Agreements and Seller has complied with and shall be responsible
for compliance with the WARN Act and any other applicable employment-related
laws or ordinances. Seller has complied with the requirements of the federal
Immigration and Reform Control Act respecting the employment of undocumented
workers.
3.14 FINANCIAL INFORMATION. To the best of Seller's knowledge, all of
Seller's financial information, including, without limitation, all books and
records and financial statements, is correct and complete in all material
respects and presents accurately the results of the operations of the Property
for the periods indicated.
3.15 ORGANIZATIONAL DOCUMENTS. Seller's Organizational Documents are in
full force and effect and have not been modified or supplemented, and no fact or
circumstance has occurred that, by itself or with the giving of notice or the
passage of time or both, would constitute a default thereunder.
3.16 OPERATION OF PROPERTY. Seller covenants, that between the Effective
Date and the Closing Date, it will (a) operate the Property in the usual,
regular and ordinary manner consistent with Seller's prior practice, (b)
maintain its books of account and
15
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, (a) make any agreements
which shall be binding upon Buyer with respect to the Property, or (b) reduce or
cause to be reduced any green fees, membership fees, tournament fees, driving
range fees or any other charges over which Seller has operational control.
Between the Effective Date and the Closing Date, if and to the extent requested
by Buyer, Seller shall deliver to Buyer such periodic information with respect
to the above information as Seller customarily keeps internally for its own use.
Seller agrees that it will operate the Property in accordance with the
provisions of this Section 3.16 between the Effective Date and the Closing Date.
3.17 BANKRUPTCY. No Act of Bankruptcy has occurred with respect to
Seller.
3.18 LAND USE. The current use and occupancy of the Property for golfing
and all other related purposes (including, without limitation, the sale of
merchandise and food and beverages) are permitted as a matter of right as a
principal use under all laws and regulations applicable thereto without the
necessity of any special use permit, special exception or other special permit,
permission or consent and Seller is not aware of any proposal to change or
restrict such use. Seller has all necessary certificates of occupancy or
completion to operate the Property as presently operated and there are no
unfulfilled conditions respecting the development of the Property.
3.19 HAZARDOUS SUBSTANCES. Except as may be disclosed in the Phase I
environmental assessment report for the Property, to the best of Seller's
knowledge, (i) no Hazardous Substances are or have been located on (except in
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
16
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.
3.20 UTILITIES. All Utilities required for the operation of the Property
either enter the Property through adjoining streets, or they pass through
adjoining land and do so in accordance with valid public easements or private
easements, and all of said Utilities are installed and are in good working order
and repair and operating as necessary for the operation of the Property and all
installation and connection charges therefor have been paid in full. The
sewage, sanitation, plumbing, water retention and detention, refuse disposal and
utility facilities in and on and/or servicing the Real Property are adequate to
service the Real Property as it is currently being used and the Real Property's
utilization of such facilities is in compliance with all applicable governmental
and environmental protection authorities' laws, rules, regulations and
requirements.
3.21 CURB CUTS. All curb cut street opening permits or licenses required
for vehicular access to and from the Property from any adjoining public street
have been obtained and paid for and are in full force and effect.
3.22 LEASED PROPERTY. The Personal Property identified on EXHIBIT C is
all of the leased property at the Property, and such exhibit reflects the date
of each such lease, the name of the lessor, the name of the lessee, the term of
each such lease, the lease payment terms and a description of the property
demised by each such lease. All leases of such property are in good standing
and free from default.
3.23 SUFFICIENCY OF CERTAIN ITEMS. The Property, 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 SURVIVAL OF REPRESENTATIONS. Each of the representations,
warranties and covenants contained in this Article III are intended for the
benefit of Buyer. Each of said representations, warranties and covenants shall
survive the Closing for a period of one (1) year, at which time they shall
expire
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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
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,
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duly authorized by all necessary action on the part of Buyer, has been duly
executed and delivered by Buyer, constitutes the valid and binding agreement of
Buyer and is enforceable against Buyer in accordance with its terms. All action
required pursuant to this Agreement necessary to effectuate the transactions
contemplated herein has been, or will at Closing be, taken promptly and in good
faith by Buyer and its representatives and agents.
ARTICLE 5
CONDITIONS AND ADDITIONAL COVENANTS
5.1 AS TO BUYER'S OBLIGATIONS. Buyer's obligations under this Agreement
are subject to the satisfaction of the following conditions precedent and the
compliance by Seller with the following covenants:
(a) SELLER'S DELIVERIES. Seller shall have delivered to or for the
benefit of Buyer, as the case may be, on or before the Closing Date, all of the
documents and other information required of Seller pursuant to this Agreement.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS. All of Seller's
representations and warranties made in this Agreement shall be true and correct
as of the Effective Date and as of the Closing Date as if then made, there shall
have occurred no material adverse change in the condition or financial results
of the operation of the Property since the Effective Date. Seller shall have
performed all of its covenants and other obligations under this Agreement and
Seller shall have executed and delivered to Buyer on the Closing Date a
certificate dated as of the Closing Date to the foregoing effect in the form of
EXHIBIT K attached hereto.
(c) TITLE INSURANCE. The Title Company shall have delivered the
Owner's Title Policy, subject only to the Permitted Title Exceptions.
(d) TITLE TO PROPERTY. Buyer shall have determined that Seller is
the sole owner of good and marketable fee simple title (or ground lease
interest, as applicable) to the Real Property and to the Tangible Personal
Property, free and clear of all liens, encumbrances, restrictions, conditions
and agreements except for Permitted Title Exceptions. Seller shall not have
taken any action or permitted or suffered any action to be taken by others from
the Effective Date and through and including the Closing Date that would
adversely affect the status of title to the Real Property or to the Tangible
Personal Property.
(e) CONDITION OF PROPERTY. The Real Property and the Tangible
Personal Property (including but not limited to the golf course, driving range,
putting greens, mechanical systems,
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plumbing, electrical wiring, appliances, fixtures, heating, air conditioning and
ventilating equipment, elevators, boilers, equipment, roofs, structural members
and furnaces) shall be in the same condition at Closing as they are as of the
Effective Date, reasonable wear and tear excepted. Prior to Closing, Seller
shall not have diminished the quality or quantity of maintenance and upkeep
services heretofore provided to the Real Property and the Tangible Personal
Property. Seller shall not have removed or caused or permitted to be removed
any part or portion of the Real Property or the Tangible Personal Property
unless the same is replaced, prior to Closing, with similar items of at least
equal quality and acceptable to Buyer.
(f) UTILITIES. All of the Utilities shall be installed in and
operating at the Property, and service shall be available for the removal of
garbage and other waste from the Property. Between the Effective Date and the
Closing Date, Seller shall have received no notice of any material increase or
proposed material increase in the rates charged for the Utilities from the rates
in effect as of the Effective Date.
(g) LIQUOR LICENSE. Buyer, or Buyer's nominee, shall have
obtained 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 have cooperated with each other, and each shall have
executed such transfer forms, license applications and other documents as may be
necessary to effect the obtaining of the liquor licenses, alcoholic beverage
licenses and other Authorizations required hereby.
Each of the conditions and additional covenants contained in this Section are
intended for the benefit of Buyer and may be waived in whole or in part by
Buyer, but only by an instrument in writing signed by Buyer.
5.2 AS TO SELLER'S OBLIGATIONS. Seller's obligations under this are
subject to the satisfaction of the following conditions precedent and the
compliance by Buyer with the following covenants:
(a) BUYER'S DELIVERIES. Buyer shall have delivered to or for the
benefit of Seller, on or before the Closing Date, all of the documents and
payments required of Buyer pursuant to this Agreement.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS. All of Buyer's
representations and warranties made in this Agreement shall be true and correct
as of the Effective Date and as of the Closing Date as if then made and Buyer
shall have performed all of its covenants and other obligations under this
Agreement.
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Each of the conditions and additional covenants contained in this Section are
intended for the benefit of Seller and may be waived in whole or in part, by
Seller, but only by an instrument in writing signed by Seller.
ARTICLE 6
CLOSING
6.1 CLOSING. Closing shall be held at the offices of Escrow Agent on
or before July 17, 1998. If the Closing Date falls on a Saturday, Sunday or
other legal holiday, the Closing shall take place on the first following
business day thereafter. Possession of the Property shall be delivered to Buyer
at Closing, subject only to Permitted Title Exceptions.
6.2 SELLER'S DELIVERIES. At Closing, Seller shall deliver to Buyer all
of the following instruments, each of which shall have been duly executed and,
where applicable, acknowledged and/or sworn on behalf of Seller and shall be
dated as of the Closing Date.
(a) SELLER'S CERTIFICATE. The certificate required by Section
5.1(b).
(b) THE DEED.
(c) THE ▇▇▇▇ OF SALE - PERSONAL PROPERTY
(d) EVIDENCE OF TITLE. Evidence of title acceptable to Buyer for
any vehicle owned by Seller and used in connection with the Property.
(e) TITLE REQUIREMENTS. Such agreements, affidavits or other
documents as may be required by the Title Company to issue the Owner's Title
Policy including those endorsements required by Buyer, and to eliminate the
standard exceptions as exceptions thereto, so that the Owner's Title Policy will
be subject only to the Permitted Title Exceptions, including, without
limitation, an appropriate mechanics' and construction lien, possession and gap
affidavit.
(f) THE FIRPTA CERTIFICATE.
(g) WARRANTIES. To the extent available, true, correct and
complete copies of all warranties, if any, of manufacturers, suppliers and
installers possessed by Seller and relating to the Property, or any part
thereof.
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(h) ORGANIZATIONAL DOCUMENTS. Certified copies of Seller's
Organizational Documents.
(i) BOARD RESOLUTIONS. Appropriate resolutions of the board of
directors or partners, as the case may be, of Seller, certified by the secretary
or an assistant secretary of Seller or a general partner, as the case may be,
together with all other necessary approvals and consents of Seller, authorizing
(i) the execution on behalf of Seller of this Agreement and the documents to be
executed and delivered by Seller prior to, at or otherwise in connection with
Closing, and (ii) the performance by Seller of its obligations under this
Agreement and under such documents, or appropriate resolutions of the partners
of Seller, as the case may be.
(j) CERTIFICATE OF OCCUPANCY. 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) EVIDENCE OF BULK SALES COMPLIANCE. Such proof as Buyer may
reasonably require with respect to Seller's compliance (or indemnity with
respect to compliance) with the bulk sales laws or similar statutes.
(l) INSURANCE POLICIES. Copy of each and every existing insurance
policy covering the Property and certificates evidencing such coverage.
(m) IMPROVEMENT PLANS. To the extent available, a set or copies
of the plans and specifications for the Improvements.
(n) COMMUNICATION; ADDRESSES. A written instrument executed by
Seller, conveying and transferring to Buyer all of Seller's right, title and
interest in any telephone numbers, fax numbers or Internet or electronic mail
addresses (if applicable) relating solely to the Property, and, if Seller
maintains a post office box solely with respect to the Property, conveying to
Buyer all of its interest in and to such post office box and the number
associated therewith, so as to assure a continuity in operation and
communication.
(o) TAX BILLS. All current real estate and personal property tax
bills in Seller's possession or under its control.
(p) SURVEYS. All surveys and plot plans of the Real Property in
possession of or in the control of Seller.
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(q) TOURNAMENT SCHEDULE. A complete list of all scheduled
tournaments, functions and the like, in reasonable detail.
(r) ACCOUNTS RECEIVABLE. A list of Seller's outstanding accounts
receivable as of midnight on the date prior to the Closing, specifying the name
of each account and the amount due Seller.
(s) PAYOFF STATEMENT. A payoff statement prepared by any holder
of Mortgage Indebtedness setting forth the amount, including accrued interest
and prepayment penalties, to pay off the Mortgage Indebtedness.
(t) TENANT NOTICES. Written notice executed by Seller notifying
all interested parties, including all tenants under any leases of the Property,
that the Property has been conveyed to Buyer and directing that all payments,
inquiries and the like be forwarded to Buyer at the address to be provided by
Buyer.
(u) MISCELLANEOUS. Any other document or instrument reasonably
requested by Buyer with respect to the Property.
6.3 BUYER'S DELIVERIES. At Closing, Buyer shall pay or deliver to
Seller the following:
(a) PURCHASE PRICE. The Purchase Price equal to $6,400,000.00
shall be remitted by Buyer to Seller by federal funds wire to an account
designated by Seller.
(b) MISCELLANEOUS. Any other document or instrument reasonably
requested by Seller relating to the transaction contemplated hereby.
6.4 MUTUAL DELIVERIES. At Closing, Buyer and Seller shall mutually
execute and deliver each to the other:
(a) CLOSING STATEMENTS. A closing statement for Seller and a
closing statement for Buyer (collectively, the "Closing Statements") reflecting
the Purchase Price and the adjustments and prorations required under this
Agreement and the allocation of income and expenses required hereby.
(b) LIQUOR LICENSE TRANSFER DOCUMENTS. Such other documents,
instruments and undertakings as may be required by the liquor authorities of the
State or of any county or municipality or Governmental Body having jurisdiction
with respect to the transfer or issue of any liquor licenses or alcoholic
beverage licenses or permits for the Property, to the extent not theretofore
executed and delivered.
23
(c) MISCELLANEOUS. Such other and further documents, papers and
instruments as may be reasonably required by the parties hereto or their
respective counsel.
6.5 CLOSING COSTS. Except as is otherwise provided in this Agreement,
each party hereto shall pay its own legal fees and expenses, and Seller shall
pay for the cost of any audit required by Buyer with respect to the Property.
All filing fees for the Deed and the real estate transfer, recording or other
similar taxes due 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.
6.6 INCOME AND EXPENSE ALLOCATIONS. All income and expenses with
respect to the Property, and applicable to the period of time before and after
Closing, determined in accordance with generally accepted accounting principles
consistently applied, shall be allocated between Seller and Buyer (or, at
Buyer's election, between Seller and the lessee under the Golf Course Lease to
the extent such income or expenses will be payable by or attributable to such
lessee). Seller shall be entitled to all income and shall be responsible for
all expenses for the period of time up to but not including the Closing Date,
and Buyer shall be entitled to all income and shall be responsible for all
expenses for the period of time from, after and including the Closing Date.
Such adjustments shall be shown on the Closing Statements (with such supporting
documentation as the parties hereto may require being attached as exhibits to
the Closing Statements) and shall increase or decrease (as the case may be) the
Purchase Price payable by Buyer. Without limiting the generality of the
foregoing, the following items of income and expense shall be prorated as of the
Closing Date:
(a) RENTS AND FEES. Current and prepaid rents or fees, including,
without limitation, prepaid Golf Club membership fees, function receipts and
other reservation receipts.
(b) TAXES. Real estate and personal property taxes.
(c) UTILITIES. Utility charges (including but not limited to
charges for water, sewer and electricity).
(d) FUEL. Value of fuel stored on the Property at the price paid
for such fuel by Seller, including any taxes.
(e) MUNICIPAL IMPROVEMENT LIENS. Municipal improvement liens
where the work has physically commenced (certified liens) shall be paid by
Seller at Closing. Municipal improvement liens
24
which have been authorized, but where the work has not commenced (pending liens)
shall be assumed by Buyer.
(f) LICENSE AND PERMIT FEES. License and permit fees, where
transferable.
(g) INCOME AND EXPENSES. All other income and expenses of the
Property, including, but not limited to such things as restaurant and snack bar
income and expenses and the like.
(h) MISCELLANEOUS PRORATIONS. Such other items as are usually and
customarily prorated between Buyers and Sellers of golf course properties in the
area in which the Property is located shall be prorated as of the Closing Date.
6.7 SALES TAXES. Seller shall be required to pay all sales taxes and
like impositions arising from the ownership and operation of the Property
currently through the Closing Date.
6.8 POST-CLOSING ADJUSTMENTS.
(a) ACCOUNTS RECEIVABLE. Buyer shall not be obligated to collect
any accounts receivable or revenues accrued prior to the Closing Date for
Seller, but if Buyer collects same, such amounts will be promptly remitted to
Seller in the form received. Buyer shall receive a credit at Closing for the
amount of any security deposits held by Seller under any lease of any portion of
the Property that is being assigned to Buyer in accordance herewith.
(b) AVAILABILITY OF BILLS. If accurate allocations and prorations
cannot be made at Closing because current bills are not obtainable (as, for
example, in the case of utility bills and/or real estate or personal property
taxes), the parties shall allocate such income or expenses at Closing on the
best available information, subject to adjustment outside of escrow upon receipt
of the final ▇▇▇▇ or the evidence of the applicable income or expense. Any
income received or expense incurred by Seller or Buyer with respect to the
Property after the Closing Date shall be promptly allocated in the manner
described herein and the parties shall promptly pay or reimburse any amount due.
Seller shall pay at Closing all accrued special assessments and taxes applicable
to the Property.
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
25
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 occurs
prior to Closing, Buyer shall have the right to terminate this Agreement
pursuant to SECTION 8.3. If Buyer elects not to terminate this Agreement, all
insurance proceeds and rights to proceeds arising out of such loss or damage
shall be paid or assigned, as applicable, to Buyer at Closing.
7.3 REAL ESTATE BROKER. Except for a broker or finder who may have been
engaged by Seller and for whom Seller accepts sole financial responsibility, and
except for any broker or finder who may have been engaged by Buyer and for whom
Buyer accepts sole financial responsibility, there is no real estate broker
involved in this transaction. Buyer warrants and represents to Seller that
Buyer has not dealt with any other real estate broker in connection with this
transaction, nor has Buyer been introduced to the Property or to Seller by any
other real estate broker, and Buyer shall indemnify Seller and save and hold
Seller harmless from and against any claims, suits, demands or liabilities of
any kind or nature whatsoever arising on account of the claim of any person,
firm, or corporation to a real estate brokerage commission or a finder's fee as
a result of having dealt with Buyer, or as a result of having introduced Buyer
to Seller or to the Property. In like manner, Seller warrants and represents to
Buyer that Seller has not dealt with any real estate broker in connection with
this transaction, nor has Seller been introduced to Buyer by any real estate
broker, and Seller shall indemnify Buyer and save and hold harmless from and
against any claims, suits, demands or liabilities of any kind or nature
whatsoever arising on account of the claim of any person, firm or corporation to
a real estate brokerage commission or a finder's fee as a result of having dealt
with Seller in connection with this transaction. Buyer acknowledges that ▇▇▇▇▇
▇. ▇▇▇▇, an officer of the Buyer, is a licensed California real estate broker
but is not acting as a broker in relation to this Agreement.
7.4 CONFIDENTIALITY. Except as hereinafter provided, from and after the
execution of this Agreement, Buyer and Seller shall keep the terms, conditions
and provisions of this Agreement confidential and neither shall make any public
announcements hereof unless the other first approves of same in writing, nor
shall either disclose the terms, conditions and provisions hereof, except
26
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 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. 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 Gold Course Lease), all liquor licenses and alcoholic beverage
licenses, if any, necessary to operate the restaurant, bars, snack bars, and
lounges presently located within the Property, if any. To that end, Seller and
Buyer, or Buyer's nominee, shall cooperate each with the other, and each shall
execute such transfer forms, license applications and other documents as may be
necessary to effect such transfer. If permitted under the laws of the
jurisdiction in which the Property is located, the parties shall execute and
file all necessary transfer forms, applications and papers with the appropriate
liquor and alcoholic beverage authorities prior to Closing, to the end that the
transfer shall take effect, if possible, on the Closing Date, simultaneously
with Closing. If not so permitted, then the parties agree each with the other
that they will promptly execute all transfer forms, applications and other
documents required by the liquor authorities in order to effect such transfer at
the earliest date in time possible consistent with the laws of the State in
order that all liquor licenses may be transferred from Seller to Buyer, or
Buyer's nominee, at the earliest possible time. If under the laws of the State
such licenses cannot be transferred until after the Closing of the transaction
contemplated hereby, then Seller covenants and agrees that Seller will cooperate
with Buyer, or Buyer's nominee, in keeping open the bars and liquor facilities
of the Property between the Closing Date and the time when such liquor license
transfers actually become effective, by exercising management and supervision of
such facilities until such time under Seller's licenses, provided, however, that
Buyer shall indemnify and hold Seller harmless from any liability, damages or
claims encountered in connection with such operations during said
27
period time, except for Seller's gross negligence or willful misconduct.
ARTICLE 8
LIABILITY OF BUYER; INDEMNIFICATION BY SELLER;
TERMINATION RIGHTS
8.1 LIABILITY OF BUYER. Except for any obligation expressly assumed or
agreed to be assumed by Buyer under this Agreement, Buyer does not assume any
obligation of Seller or any liability for claims arising out of any occurrence
prior to Closing.
8.2 INDEMNIFICATION BY SELLER. Seller hereby indemnifies and holds
Buyer harmless from and against any and all claims, costs, penalties, damages,
losses, liabilities and expenses (including reasonable attorneys' fees) that may
at any time be incurred by Buyer, whether before or after Closing, as a result
of any breach by Seller of any of its representations, warranties, covenants or
obligations set forth herein or in any other document delivered by Seller
pursuant hereto, 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. If Buyer terminates this Agreement as a consequence of a
misrepresentation or breach of a warranty or covenant by Seller, or a failure by
Seller to perform its obligations under this Agreement, then Buyer shall retain
all remedies accruing as a result thereof, including, without limitation,
specific performance.
8.4 TERMINATION BY SELLER. If any condition set forth herein for the
benefit of Seller (other than a default by Buyer) cannot or will not be
satisfied prior to Closing, and Buyer fails to cure any such matter within ten
(10) business days after notice thereof from Seller, Seller may, at its option,
elect either (a) to terminate this Agreement, in which event the rights and
obligations of Seller and Buyer hereunder shall terminate immediately, or (b) to
waive its right to terminate, and instead, to proceed to Closing, If, prior to
Closing, Buyer materially defaults in performing any of its obligations under
this Agreement (including its obligation to purchase the Property), and Buyer
fails to cure any such material
28
default within ten (10) business days after notice thereof from Seller, then
Seller's sole remedy for such default shall be to terminate this Agreement, and
Seller waives any additional claims for damages, actual, consequential or
otherwise, that it may possess against Buyer.
8.5 COSTS AND ATTORNEY'S FEES. In the event of any litigation or
dispute between the parties arising out of or in any way connected with this
Agreement, resulting in any litigation, arbitration or other form of dispute
resolution, then the prevailing party in such litigation shall be entitled to
recover its costs of prosecuting and/or defending same, including, without
limitation, reasonable attorneys' fees at trial and all appellate levels.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 COMPLETENESS; MODIFICATION. This Agreement constitutes the entire
agreement between the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior discussions, understandings,
agreements and negotiations between the parties hereto. This Agreement may be
modified only by a written instrument duly executed by the parties hereto.
9.2 ASSIGNMENTS. Buyer may assign its rights under this Agreement to an
Affiliate of Buyer without the consent of Seller. Buyer may not otherwise
assign its interest herein without the prior written consent of Seller. Seller
may not assign any of its rights pursuant to this Agreement without the prior
written consent of Buyer, which may be withheld in Buyer's sole and absolute
discretion.
9.3 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns.
9.4 DAYS. If any action is required to be performed, or if any notice,
consent or other communication is given, on a day that is a Saturday or Sunday
or a legal holiday in the jurisdiction in which the action is required to be
performed or in which is located the intended recipient of such notice, consent
or other communication, such performance shall be deemed to be required, and
such notice, consent or other communication shall be deemed to be given, on the
first business day following such Saturday, Sunday or legal holiday. Unless
otherwise specified herein, all references herein to a "day" or "days" shall
refer to calendar days and not business days.
29
9.5 GOVERNING LAW. This Agreement and all documents referred to herein
shall be governed by and construed and interpreted in accordance with the laws
of the State.
9.6 COUNTERPARTS. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required. It shall not be necessary
that the signature on behalf of both parties hereto appear on each counterpart
hereof. All counterparts hereof shall collectively constitute a single
agreement.
9.7 SEVERABILITY. If any term, covenant or condition of this Agreement,
or the application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term, covenant or condition to other persons or circumstances, shall not be
affected thereby, and each term, covenant or condition of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
9.8 COSTS. Regardless of whether Closing occurs under this Agreement,
and except as otherwise expressly provided in this Agreement, each party to this
Agreement shall be responsible for its own costs in connection with this
Agreement and the transactions contemplated hereby, including without
limitation, fees of attorneys, engineers and accountants.
9.9 NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be delivered by hand,
transmitted by facsimile transmission, sent prepaid by Federal Express (or a
comparable overnight delivery service) or sent by the United States mail,
certified, postage prepaid, return receipt requested, at the addresses and with
such copies as on the Summary Sheet or to such other address as the intended
recipient may have specified in a notice to the other party. Any party hereto
may change its address or designate different or other persons or entities to
receive copies by notifying the other party and Escrow Agent in a manner
described in this Section. Any notice, request, demand or other communication
delivered or sent in the manner aforesaid shall be deemed given or made (as the
case may be) when actually delivered to the intended recipient.
9.10 INCORPORATION BY REFERENCE. All of the exhibits attached hereto are
by this reference incorporated herein and made a part hereof.
9.11 SURVIVAL. Except as expressly provided in Section 3, all of the
representations, warranties, covenants and agreements of Seller and Buyer made
in, or pursuant to, this Agreement shall survive Closing and shall not merge
into the Deed or any other
30
document or instrument executed and delivered in connection herewith.
9.12 FURTHER ASSURANCES. Seller and Buyer each covenant and agree to
sign, execute and deliver, or cause to be signed, executed and delivered, and to
do or make, or cause to be done or made, upon the written request of the other
party, any and all agreements, instruments, papers, deeds, acts or things,
supplemental, confirmatory or otherwise, as may be reasonably required by either
party hereto for the purpose of or in connection with consummating the
transactions described herein.
9.13 NO PARTNERSHIP. This Agreement does not and shall not be construed
to create a partnership, joint venture or any other relationship between the
parties hereto except the relationship of Seller and Buyer specifically
established hereby.
9.14 CONFIDENTIALITY. Any confidential information delivered by Seller
to Buyer under this Agreement shall be used solely for the purpose of acquiring
the Property and Buyer will keep such information confidential; provided Buyer
shall have the right to provide such information to its consultants and advisors
and to disclose such information as Buyer determines is necessary or appropriate
in connection with any public offering of the Securities. If Buyer does not
acquire the Property, it shall deliver to Seller copies of all proprietary
information delivered to Buyer by Seller. Seller agrees to keep confidential
the terms and conditions of this Agreement provided, Seller shall have the right
to provide such information to its consultants and advisors.
IN WITNESS WHEREOF, Seller and Buyer have hereunder affixed their
signatures to this Purchase and Sale Agreement, all as of the 17th day of July,
1998.
[SIGNATURES APPEAR ON NEXT PAGE]
31
"Buyer"
GOLF TRUST OF AMERICA,L.P.,
A DELAWARE LIMITED PARTNERSHIP
By: GTA, Inc., a Maryland
a Maryland corporation
Its: General Partner
By: /S/
-------------------------------
Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
Title: President and Chief
Executive Officer
32
"Seller"
/s/
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
/s/
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
33
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
EXHIBIT B
DESCRIPTION OF IMPROVEMENTS
1. 18 hole golf course;
2. 2-story wood and stone frame clubhouse building;
3. two (2) 10'x10' wood bathrooms;
4. two (2) 1-story metal buildings (equipment storage buildings);
5. pool;
6. two (2) concrete blocks;
7. elevated walkway;
8. various tree planting and fencing;
EXHIBIT C
TANGIBLE PERSONAL PROPERTY
EXHIBIT D
INTANGIBLE PERSONAL PROPERTY
1. Any and all rights related to the use of fictitious name "Prestwick
Country Club" issued by the Secretary of State of Ohio.
2. Any and all rights in Ohio EPA Licenses to operate or maintain a
Public Water System.
EXHIBIT E
▇▇▇▇ OF SALE - PERSONAL PROPERTY
WHEREAS, by deed of even date herewith, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. AND ▇▇▇▇▇
▇▇▇▇▇▇▇▇, husband and wife (collectively,"Seller") conveyed to GOLF TRUST OF
AMERICA, L.P., a Delaware limited partnership ("Buyer"), whose mailing address
is ▇▇ ▇▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 July 17, 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 representation or warranty except as set forth in the Agreement,
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 no 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, 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, but specifically excluding any and all golf
carts owned or leased by Seller (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 use
in connection with the ownership, operation, leasing or maintenance of the Real
Property or the Tangible Personal Property, and any and all trademarks and
copyrights, guarantees, Authorizations (as defined in the Agreement), 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
34
Property, any unpaid award for taking by condemnation or any damage to the Real
Property by reason of a change of grade or location of or access to any street
or highway, excluding (a) any of the aforesaid rights that Buyer elects not to
acquire and (b) the Current Assets, as defined in the Agreement, but
specifically excluding all goodwill attributable to the Property (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.
EXECUTED this ____ day of ___________________, 1998.
Seller:
________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SCHEDULE 1
DESCRIPTION OF PROPERTY
SCHEDULE 2
DESCRIPTION OF PERSONAL PROPERTY
EXHIBIT F
(Deed)
SCHEDULE 1
THE PROPERTY
[to be taken from survey]
EXHIBIT G
SELLER'S FIRPTA AFFIDAVIT
Section 1455 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 ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, husband and wife (collectively,"Sellers"),
the undersigned hereby certifies the following on behalf of Sellers:
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
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 declare that they have examined this certification and to
the best of their knowledge and belief it is true, correct and complete.
Dated: July 17, 1998
_____________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
___________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
STATE OF OHIO )
COUNTY OF _______________ )
On July ______, 1998, before me _________________, a Notary Pubic in and
for said State, personally appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
husband and wife, 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(is), 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 Ohio
EXHIBIT H
CONTRACTS AND OPERATING AGREEMENTS
1. Lease Agreement by and between Preclub, Inc. as lessee and ▇▇▇▇▇▇▇▇
Development Co. as lessor dated June 10, 1992.
2. Easement for Sign Purposes from ▇▇▇▇▇▇▇▇ Development Company to
Preclub, Inc. d/b/a Ohio Prestwick Country Club dated June 17, 1993
and recorded in Book OR1356, Page 404, Summit County, Ohio records.
3. License Agreement by and between C.C.T.N. Unit Owners Association,
d/b/a Country Club Village, and Ohio Prestwick Country Club dated
December 3, 1993.
4. Oil and Gas Lease from Kettering Properties Ltd. To BoCor
Producing, dated August 7, 1985 and recorded in Volume 7068, page
604, Summit County, Ohio records.
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) Audited 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
None.
EXHIBIT K
SELLER'S CERTIFICATE
Pursuant to SECTION 5.1.(b) of the certain Purchase and Sale Agreement
(the "Agreement") by and between the undersigned, as husband and wife ("Seller")
and GOLF TRUST OF AMERICA, L.P., a Delaware limited partnership ("Buyer") dated
as of July 17, 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: July 17, 1998
_______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
_______________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
