EXHIBIT 10.1
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is made as of
_______________________________, 2001 (the "Effective Date"), by and between
WAIKELE GOLF CLUB, INC., a Hawaii corporation ("Seller"), and WAIKELE GOLF,
LLC, a Delaware limited liability company ("Purchaser").
1. AGREEMENT TO PURCHASE AND SELL. Purchaser hereby agrees to
purchase from Seller, and Seller hereby agrees to sell and convey to
Purchaser, subject to and in accordance with the terms and conditions set
forth in this Agreement, the following property (collectively, the
"Property"):
(a) LAND. That certain real property located at Waikele,
District of Ewa, City and County of Honolulu, State of Hawaii, identified on
the tax maps for the City and County of Honolulu as Tax Map Key Nos. (1) 9-4-
007, Parcels 48, 55, 10, 57 and 36, which real property is known as the
Waikele Golf Course, together with all rights and appurtenances pertaining
thereto (the "Land");
(b) WATER RIGHTS. Seller's interest under that certain
Agreement Regarding Water Rights (Waikele Golf Course - Pump 1) dated
September 26, 2000, filed as Land Court Document No. 2654120 and recorded as
Document No. 2654120 (the "Water Rights");
(c) IMPROVEMENTS. Seller's interest in the improvements and
fixtures on the Land;
(d) PERSONAL PROPERTY. All personal property owned by
Seller located on or used in connection with the Land and the golf course
operations on the Land as of the Closing Date (as defined below), including
without limitation, Seller's interest in the inventory, equipment, service
contracts, equipment leases, employment contracts, permits and intangible
property located on or used exclusively in connection with the Land and the
golf course operations on the Land. Prior to Closing (as defined below),
Seller shall use reasonable efforts to cause Amfac Hawaii, LLC to enter into
with Purchaser as of Closing (i) a Trademark Logo License Agreement for the
use of the Waikele trademark (the "Trademark License Agreement"), and (ii) a
Servicemark Logo License Agreement for the use of the Waikele servicemark (the
"Servicemark License Agreement"), which agreements shall be on terms to be
agreed upon by the parties prior to Closing.
2. PURCHASE PRICE. The purchase price (the "Purchase Price") to be
paid by Purchaser for the Property shall be THIRTEEN MILLION AND NO/100 U.S.
Dollars (U.S. $13,000,000.00). The Purchase Price shall be payable as
follows:
a. DEPOSITS. Upon the execution of this Agreement by Seller
and Purchaser, Purchaser shall deliver $150,000.00 as an initial deposit with
Title Guaranty Escrow Services, Inc., 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxx,
Attention: Xx. Xxx Xxxxx ("Escrow"). On November 30, 2001, Purchaser shall
deposit an additional sum of $350,000.00 with Escrow (the initial deposit, the
additional deposit and any interest accrued thereon being referred to herein
as the "Deposits"). The Deposits shall be applied against the Purchase Price
at the Closing. Purchaser may make arrangements with Escrow to place the
Deposits in an interest-bearing account.
b. PAYMENT AT CLOSING. At Closing, Purchaser shall pay
Seller, through Escrow, in immediately available funds the remaining balance
of the Purchase Price, provided that at Closing Purchaser shall receive a
credit against the Purchase Price for (i) unredeemed gift certificates for the
Waikele Golf Club to be satisfied by Purchaser after Closing in an amount to
be agreed upon by the parties prior to Closing (approximately $50,000.00), and
(ii) equipment leases and/or
equipment financing documentation to be assumed by Purchaser in an
amount to be agreed upon by the parties prior to Closing (approximately
$350,000.00). At Closing, Purchaser shall also acquire Seller's
accounts receivable related to the golf course operations as of Closing
for an amount to be agreed upon by the parties prior to Closing and paid
to the Seller in cash at Closing.
3. TITLE. Attached to this Agreement as EXHIBIT "1" is a copy of a
preliminary title report dated as of September 26, 2001 (the "Title Report"),
issued by Title Guaranty of Hawaii Incorporated (the "Title Company"),
covering the Land. At Closing, Seller shall execute and deliver a limited
warranty deed (the "Deed") conveying the Land, the Water Rights and the
improvements on the Land to Purchaser, subject to (i) all recorded easements,
covenants, conditions, reservations and restrictions, and all items listed on
the Title Report; provided that at Closing, Seller shall be obligated to cause
to be released the Bank of Hawaii mortgage and related financing documents
described in the Title Report (the "BOH Documents"); and (ii) nondelinquent
real property taxes and assessments (the encumbrances described in (i) and
(ii) other than the BOH Documents are referred to herein as the "Permitted
Encumbrances"). At Closing, Seller shall cause to be issued by the Title
Company, as agent for Chicago Title Insurance Company, an American Land Title
Association extended coverage policy of title insurance in the full amount of
the Purchase Price insuring title to the Land and the improvements thereon
(the "Title Policy"), subject only to the Permitted Exceptions and any loan
documents placed of record at Closing to evidence any financing obtained by
Purchaser to finance the purchase of the Property hereunder.
4. CLOSING. As used in this Agreement, the term "Closing Date" means
the date the Deed is filed in the Office of the Assistant Registrar of the
Land Court of the State of Hawaii and recorded at the Bureau of Conveyances of
the State of Hawaii, and the term "Closing" shall refer to the filing and
recordation of the Deed. The Closing Date shall be December 14, 2001, or such
other date as may be agreed upon in writing by Seller and Purchaser. At
Closing, the personal property described above shall be transferred to
Purchaser by way of (i) an Assignment and Assumption of Contracts, Restaurant
Lease, Equipment Leases and Intangible Property, (ii) a Xxxx of Sale, (iii)
the Trademark License Agreement, and (iv) the Servicemark License Agreement,
the forms of which shall be agreed upon by Seller and Purchaser prior to
Closing. Schedules of such personal property shall be prepared by Seller for
Purchaser's review and approval, not to be unreasonably withheld, prior to
Closing. The Closing shall be processed by Escrow, and the parties agree to
execute all such other customary documents necessary to close the transaction
as requested by Escrow.
5. CLOSING COSTS AND PRORATIONS. At Closing, Seller shall pay the
(i) conveyance tax payable in connection with the transfer of the Property,
(ii) one-half of the cost of the Title Policy, and (iii) one-half of the
Escrow charges. At Closing, Purchaser shall pay (i) all recording fees, (ii)
one-half of the cost of the Title Policy, provided that Purchaser shall be
required to pay the cost of the necessary survey work for the Title Policy and
the cost of the endorsements to the Title Policy, and (iii) one-half of the
Escrow charges. All other closing costs, if any, shall be apportioned in a
manner customary for real estate transactions of this nature in the State of
Hawaii.
All real property taxes and other customary prorations applicable to the
Property shall be prorated between Seller and Purchaser as of the Closing
Date.
6. EMPLOYEES WAGES AND BENEFITS. Purchaser agrees to retain Seller's
existing employees after Closing, provided that such employment shall be on an
at will basis. Between the Closing Date and January 21, 2002, or such other
date as may be agreed upon by Seller and Purchaser (the "Outside Employee
Turnover Date"), Purchaser shall have the option to effect the retention of
such employees by way of (i) hiring such employees as of the Closing Date,
(ii) leasing such employees from Seller during the period between the Closing
Date and the Outside Employee Turnover Date, followed by the hiring of such
employees as of the Outside Employee Turnover Date, or (iii) having Seller
serve in the capacity of an operator of the Property for no additional
consideration during the period between the Closing Date and the Outside
Employee Turnover Date, followed by the hiring of such employees as of the
Outside Employee Turnover Date. All employee wages, bonuses, social security
taxes, unemployment insurance taxes, workers' compensation insurance and other
benefits will be prorated as of the Closing Date and paid by Seller, provided
that Purchaser shall promptly reimburse Seller for its actual costs incurred
respecting such employees. All outstanding workers' compensation claims as of
the Closing Date shall be Seller's responsibility. On the Closing Date,
Purchaser shall receive a credit against the Purchase Price in an amount equal
to all accrued vacation, sick pay and other fringe benefits for the employees
being retained by Purchaser, provided that such benefits have accrued as of
the Closing Date.
7. SELLER'S INDEMNIFICATION OF PURCHASER. Seller hereby agrees to
indemnify, defend and hold harmless Purchaser, as of Closing, from and against
any and all loss, liability, cost, claim, demand, damage, action, cause of
action, suit, administrative proceeding and/or penalty resulting or arising
from or otherwise directly or indirectly relating to Seller's ownership, use,
occupancy or sale of all or any portion of the Property and/or the golf course
operations on the Land. Seller further agrees to indemnify, defend and hold
harmless Purchaser from and against any and all loss, liability, cost, claim,
demand, damage, action, cause of action, suit, administrative proceedings
and/or penalty resulting or arising from or otherwise directly or indirectly
relating to the presence or existence of Hazardous Materials on, under or
about the Land as of Closing, or arising in any manner whatsoever out of any
violation of or noncompliance with the Hazardous Materials Laws relating to
the Land as of Closing. For purposes of this Section 7, "Hazardous Materials"
shall include any and all substances regulated by, or defined as or included
in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," or "toxic substances" under any and all federal, state or local
environmental, water pollution, hazardous substance, toxic material or waste
law, ordinance or regulation applicable to the Property, including, without
limitation, 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 of 1976, 42 U.S.C. Section 6901, et
seq., the Hazardous Materials Transportation Act, as amended, 49 U.S.C.
Section 9601, et seq., the Clean Water Act, as amended, 33 U.S.C. Section
1251, et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601
through 2629, the Safe Drinking Water Act, 42 U.S.C. Sections 300f through
300j and the Hawaii Environmental Response Law, Hawaii Revised Statutes,
Chapter 128D (collectively, "Hazardous Materials Laws"). Seller further
agrees to indemnify, defend and hold harmless Purchaser from and against any
and all loss, liability, cost, claim, demand, damage, action, cause of action,
suit, administrative proceeding and/or penalty resulting or arising at any
time from or otherwise directly or indirectly related to that certain
Memorandum of Understanding Between the City and County of Honolulu and
Amfac/JMB Hawaii, Inc. Regarding the Waikele Golf Course, which memorandum is
dated February 12, 1991. The provisions of this Section 7 shall survive
Closing and shall not be merged into the Deed.
8. DEFAULT. Upon a breach of any term or condition of this
Agreement, the non-breaching party shall be entitled to all remedies provided
under the law. In enforcing any term or condition of this Agreement, the
prevailing party shall be entitled to recover its costs and reasonable
attorneys' fees.
9. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Hawaii.
10. ASSIGNMENT. Either party may assign its rights or delegate its
duties under this Agreement with the consent of the other, which consent shall
not be unreasonably withheld.
11. AUTHORIZATIONS. At or prior to Closing, Seller shall deliver to
Purchaser a resolution of the board of directors of Seller authorizing the
sale of the Property pursuant to the terms of this Agreement and authorizing
the officer(s) executing any instrument or agreement relating to such sale to
execute, acknowledge and deliver such instrument or agreement on behalf of
Seller. At or prior to Closing, Purchaser shall deliver to Seller an
authorization certificate authorizing the purchase of the Property pursuant to
the terms of this Agreement and authorizing any signatory executing any
instrument or agreement relating to such purchase to execute, acknowledge and
deliver such instrument and agreement on behalf of Purchaser.
12. NO JOINT VENTURE. It is hereby acknowledged by Seller and
Purchaser that any relationship between them created hereby is not intended to
be and shall not in any way be construed to be that of a partnership, joint
venture or principal and agent.
13. INCORPORATION OF EXHIBIT. Exhibits "1" to this Agreement is
incorporated into this Agreement by reference.
14. COUNTERPARTS. This Agreement may be executed in counterparts.
15. LIABILITY OF THE PARTIES. The obligations of Seller under this
Agreement and the documents to be delivered at Closing shall be the
obligations of Waikele Golf Club, Inc. only. The obligations of Purchaser
under this Agreement and the documents to be delivered at Closing shall be the
obligations of Waikele Golf, LLC only. No affiliate, owner, parent,
stockholder, officer, director, employee, member or manager of Seller or
Purchaser shall be liable in any way pursuant to or in connection with this
Agreement and/or any of the documents to be delivered at Closing. The
provisions of this Section 15 shall survive Closing.
Seller and Purchaser have executed this Agreement as of the Effective
Date.
WAIKELE GOLF CLUB, INC.,
a Hawaii corporation
By_______________________________
Name:
Title:
Seller
WAIKELE GOLF, LLC,
a Delaware limited liability company
By: WAIKELE GOLF MANAGER, LLC,
a Delaware limited liability
company, Its manager
By ________________________
Name:
Title:
Purchaser
