CONTRIBUTION AND LEASEBACK AGREEMENT
dated as of May 29, 1998
by and between
GOLF CLASSIC RESORTS, L.L.C.,
a Delaware limited liability company
as Transferor,
and
GOLF TRUST OF AMERICA, L.P., a Delaware Limited Partnership
Tierra Del Sol Golf & Country Club
Belen, New Mexico
T A B L E O F C O N T E N T S
Page
ARTICLE 1
DEFINITIONS; RULES OF CONSTRUCTION
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.2 Rules of Construction. . . . . . . . . . . . . . . . . . . . . . .
ARTICLE 2
PURCHASE AND CONTRIBUTION: PAYMENT OF PURCHASE PRICE . . . . . . . . . . . . .
2.1 Purchase and Contribution. . . . . . . . . . . . . . . . . . . . .
2.2 Due Diligence Period . . . . . . . . . . . . . . . . . . . . . . .
2.3 Xxxxxxx Money Deposit and Payment of Base Purchase Price . . . . .
ARTICLE 3
TRANSFEROR'S REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 Organization and Power . . . . . . . . . . . . . . . . . . . . . .
3.2 Authorization and Execution. . . . . . . . . . . . . . . . . . . .
3.3 Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . .
3.4 No Special Taxes . . . . . . . . . . . . . . . . . . . . . . . . .
3.5 Compliance with Existing Laws. . . . . . . . . . . . . . . . . . .
3.6 Real Property. . . . . . . . . . . . . . . . . . . . . . . . . . .
3.7 Personal Property. . . . . . . . . . . . . . . . . . . . . . . . .
3.8 Operating Agreements . . . . . . . . . . . . . . . . . . . . . . .
3.9 Warranties and Guaranties. . . . . . . . . . . . . . . . . . . . .
3.10 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.11 Condemnation Proceedings; Roadways . . . . . . . . . . . . . . . .
3.12 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.13 Labor Disputes and Agreements. . . . . . . . . . . . . . . . . . .
3.14 Financial Information. . . . . . . . . . . . . . . . . . . . . . .
3.15 Organizational Documents . . . . . . . . . . . . . . . . . . . . .
3.16 Operation of Property. . . . . . . . . . . . . . . . . . . . . . .
3.17 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.18 Land Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.19 Public Offering; Preparation of S-11 . . . . . . . . . . . . . . .
3.20 Hazardous Substances . . . . . . . . . . . . . . . . . . . . . . .
3.21 Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.22 Curb Cuts. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.23 Leased Property. . . . . . . . . . . . . . . . . . . . . . . . . .
3.24 Sufficiency of Certain Items . . . . . . . . . . . . . . . . . . .
3.25 Accredited Investor. . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE 4
TRANSFEREE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 Organization and Power . . . . . . . . . . . . . . . . . . . . . .
4.2 Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . .
4.3 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.4 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.5 Authorization and Execution. . . . . . . . . . . . . . . . . . . .
4.6 Trade Name . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE 5
CONDITIONS AND ADDITIONAL COVENANTS
5.1 As to Transferee's Obligations . . . . . . . . . . . . . . . . . .
5.2 As to Transferor's Obligations . . . . . . . . . . . . . . . . . .
ARTICLE 6
CLOSING
6.1 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.2 Transferor's Deliveries. . . . . . . . . . . . . . . . . . . . . .
6.3 Transferee's Deliveries. . . . . . . . . . . . . . . . . . . . . .
6.4 Mutual Deliveries. . . . . . . . . . . . . . . . . . . . . . . . .
6.5 Closing Costs. . . . . . . . . . . . . . . . . . . . . . . . . . .
6.6 Income and Expense Allocations . . . . . . . . . . . . . . . . . .
6.7 Sales Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.8 Post-Closing Adjustments . . . . . . . . . . . . . . . . . . . . .
ARTICLE 7
GENERAL PROVISIONS
7.1 Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.2 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.3 Real Estate Broker . . . . . . . . . . . . . . . . . . . . . . . .
7.4 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . .
7.5 Liquor Licenses. . . . . . . . . . . . . . . . . . . . . . . . . .
P-ii
ARTICLE 8
LIABILITY OF TRANSFEREE
8.1 Liability of Transferee. . . . . . . . . . . . . . . . . . . . . .
8.2 Indemnification by Transferor. . . . . . . . . . . . . . . . . . .
8.3 Termination by Transferee. . . . . . . . . . . . . . . . . . . . .
8.4 Termination by Transferor. . . . . . . . . . . . . . . . . . . . .
8.5 Costs and Attorneys' Fees. . . . . . . . . . . . . . . . . . . . .
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 Completeness; Modification . . . . . . . . . . . . . . . . . . . .
9.2 Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.3 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . .
9.4 Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . .
9.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.8 Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.9 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.10 Incorporation by Reference . . . . . . . . . . . . . . . . . . . .
9.11 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.12 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . .
9.13 No Partnership . . . . . . . . . . . . . . . . . . . . . . . . . .
9.14 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . .
9.15 Escrow Agent . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.16 New Mexico Law Regarding Indemnification . . . . . . . . . . . . .
P-iii
EXHIBITS
--------
Exhibit A-Legal Description of the Land and Other Parcels
Exhibit B-Description of Improvements
Exhibit C-Tangible Personal Property
Exhibit D-Intangible Personal Property
Exhibit E-Golf Course Lease
Exhibit F-Xxxx of Sale - Personal Property
Exhibit G-Deed
Exhibit H-FIRPTA Affidavit of Transferor
Exhibit I-Contracts and Operating Agreements
Exhibit J-Partnership Agreement
Exhibit K-Calculation of Purchase Price
Exhibit L-Due Diligence List
Exhibit M-Schedule of Mortgages and Permitted Liens
Exhibit N-Accredited Investor Questionnaire
Exhibit O-Transferor's Certificate
Exhibit P-Warranty Disclosure Schedule
P-iv
CONTRIBUTION AND LEASEBACK AGREEMENT
Summary Sheet
Transferee: GOLF TRUST OF AMERICA, L.P., a Delaware Limited
Partnership
Transferror: GOLF CLASSIC RESORTS, L.L.C.,
a Delaware limited liability company
Date of
Agreement: May 29, 1998
Golf Course: Tierra Del Sol Golf & Country Club
(address): 0000 Xxxx Xxxxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000
Trade Name: Golf Classic Resorts, L.L.C.
Notice Address
of Transferor: 0000 Xxxx Xxxxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000
with a copy to: Xxxx Xxxxxxxx, Esq.
Xxxxxxx Xxxxxxx Xxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000; and
Xxxxxxx X. Xxxxx, Esq.
Xxxxxxxx & Xxxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Notice Address
of Transferee: Xxxxx X. Xxxxxx
Golf Trust of America, Inc.
00 X. Xxxxx'x Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
with a copy to: Xxxxxx Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx, LLP
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Xx., Esq.
Xxxxxxx X. Xxxxxx, Esq.
P-vi
CONTRIBUTION AND LEASEBACK AGREEMENT
THIS CONTRIBUTION AND LEASEBACK AGREEMENT (this "Agreement") is entered
into by and between Transferee and Transferor.
RECITALS:
A. Transferor is the owner of that certain Tierra Del Sol Golf & 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, Transferor hereby agrees to
contribute, assign and convey to Transferee, and Transferee hereby agrees to
acquire from Transferor, all of Transferor'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 (the "Improvements"), as more particularly described in
EXHIBIT B attached hereto.
2. All rights, privileges, easements and appurtenances to the Land and
the Improvements, if any, including, without limitation, all of Transferor'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 Transferor and located on or used in connection with the Real
Property, including, but not limited to, machinery, equipment, furniture,
furnishings, movable walls or partitions, phone systems and other control
systems, restaurant equipment, computers or trade fixtures, golf course
operation and maintenance equipment, including mowers, tractors, aerators,
sprinklers, sprinkler and irrigation facilities and equipment, valves or rotors,
driving range equipment, athletic training equipment, office equipment or
machines, other decorations, and equipment or machinery of every kind or nature
located on or used in connection with the operation of the Real Property whether
on or off-site, including all warranties and guaranties associated therewith
(the "Tangible Personal Property"), excluding all golf carts, whether owned or
leased, which shall be retained by Transferor. 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. The schedule of Tangible
Personal
1
Property shall also indicate those items of personal property, such as art and
antiques, which is excluded from the personal property being conveyed hereby.
4. All intangible personal property owned or possessed by Transferor and
used in connection with the ownership, operation, leasing or maintenance of the
Real Property or the Tangible Personal Property, all goodwill attributed to the
Property, and any and all trademarks and copyrights (including "Tierra Del Sol
Golf & Country Club" and "Tierra Del Sol"), 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 Transferee elects not to acquire and (b) the Current
Assets, as hereinafter defined (collectively, the "Intangible Personal
Property"). A schedule of the Intangible Personal Property is attached to this
Agreement as Exhibit D. The Intangible Personal Property shall not include the
right to use the Trade Name, which shall be retained by Transferor and
transferred to the lessee of the Golf Course (and further provided in no event
shall Transferee have the right to use such trade name in connection with any
other property owned by Transferee or any Affiliate (hereinafter defined of
Transferee). (The Real Property, Tangible Personal Property and Intangible
Personal Property are sometimes collectively referred to as the "Property".)
C. Upon the acquisition by the Transferee of the Property, the Transferee
will lease the Property to an Affiliate of Transferor pursuant to a lease (the
"Golf Course Lease"), substantially in the form attached hereto as EXHIBIT E.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
undertakings of the parties hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, it is agreed:
ARTICLE 1
DEFINITIONS: RULES OF CONSTRUCTION
1.1 DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meanings set forth on the Summary Sheet. The following terms shall have
the indicated meanings:
"ACT OF BANKRUPTCY" shall mean if a party hereto or any general partner
thereof shall (a) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all
or a substantial part of its Property, (b) admit in writing its inability to pay
its debts as they become due, (c) make a general assignment for the benefit of
its creditors, (d) file a voluntary petition or commence a voluntary case or
proceeding under the Federal Bankruptcy Code (as now or hereafter in effect) or
any new bankruptcy statute, (e) be adjudicated
2
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.
"AFFILIATE" shall mean, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person.
"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.
"BASE PURCHASE PRICE" shall mean Three Million Six Hundred Thousand Dollars
($3,600,000.00).
"XXXX OF SALE - PERSONAL PROPERTY" shall mean a xxxx of sale conveying
title to the Tangible Personal Property and Intangible Personal Property from
Transferor to Transferee, substantially in the form of Exhibit F attached
hereto.
"COMPANY" means Golf Trust of America, Inc.
"CLOSING" shall mean the time the Deed and each of the deliveries to be
made by Transferor (as provided in Section 6.2) and Transferee (as provided in
Section 6.3) are made and each of the Closing conditions of Transferee and
Transferor in Sections 5.1 and 5.2, respectively, have been satisfied or waived.
"CLOSING DATE" shall mean the date on which the Closing occurs.
3
"CLOSING STATEMENTS" shall have the meaning set forth in Section 6.4(a).
"CONTINGENT PURCHASE PRICE" shall mean the amount as calculated by the
procedure set forth in Exhibit K attached hereto.
"CURRENT ASSETS" shall mean cash, accounts receivable, Inventory and
Restaurant Supplies (each as hereinafter defined) held by Transferor prior to
the Closing Date.
"DEED" shall mean a grant deed or special warranty deed substantially in
the form of Exhibit G attached hereto (or lease assignment, if the Property is
owned by Transferor pursuant to a ground lease), in form and substance
satisfactory to Transferee, conveying the title of Transferor to the Real
Property, with such grant or warranty covenants of title from Transferor to
Transferee 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.
"DISCLOSURE SCHEDULE" shall have the meaning set forth in Section 2.2(e).
"DUE DILIGENCE PERIOD" shall mean the period commencing at 9:00 a.m.,
Eastern Standard time, on the date hereof, and continuing through 5:00 p.m.,
Eastern Standard time, on the date that is sixty (60) days from the date hereof;
provided, however, the parties shall make a good faith effort to consummate the
Closing by May 29, 1998.
"XXXXXXX MONEY DEPOSIT" means One Hundred Thousand Dollars ($100,000.00).
The Xxxxxxx Money Deposit may be made simultaneously at Closing.
"EMPLOYMENT AGREEMENTS" shall mean all employment agreements, written or
oral, between Transferor or its managing agent and the persons employed with
respect to the Property in effect as of the date hereof.
"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
"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.
"ESCROW AGENT" shall mean the Title Company.
"FIRPTA CERTIFICATE" shall mean the affidavit of Transferor under Section
1445 of the Internal Revenue Code certifying that Transferor is not a foreign
corporation, foreign partnership, foreign trust, foreign estate or foreign
person (as those terms are defined in the Internal Revenue Code an the Income
Tax Regulations), substantially in the form of EXHIBIT H attached hereto.
"GOLF CLUB" shall mean any organization, club or group whereby memberships
are offered by Transferor for purchase in connection with golfing privileges at
the Property.
"GOLF COURSE LEASE" shall have the meaning set forth in Recital C.
"GOVERNMENTAL BODY" shall mean any federal state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign.
"HAZARDOUS SUBSTANCES" shall mean any substance, material, waste, gas or
particulate matter which is regulated by any local, state of federal
governmental authority, including but not limited to any material or substance
which is (i) defined as a "hazardous waste", "hazardous material", or
"restricted hazardous waste" or words of similar import under any provision of
any Environmental Law; (ii) petroleum or petroleum products; (iii) asbestos;
(iv) polychlorinated biphenyl; (v) radioactive material; (vi) radon gas; (vii)
designated as a "hazardous substance" pursuant to Section 311 of the Clean Water
Act, 33 U.S.C. Section 1251, et seq. (42 U.S.C. Section 1317); (viii) defined as
a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903); or (ix)
defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601,
et seq. (42 U.S.C. Section 9601).
"IMPROVEMENTS" shall have the meaning set forth in Recital B(1).
5
"INTANGIBLE PERSONAL PROPERTY" shall have the meaning set forth in Recital
B(4).
"INVENTORY" shall mean the merchandise located in any pro shop or similar
facility and held for sale in the ordinary course of Transferor's business and
any such merchandise that is on order as of the Closing Date.
"LAND" shall have the meaning set forth in Recital A.
"MORTGAGE INDEBTEDNESS" shall have the meaning set forth in Section 2.2(d).
"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 date hereof, as
more particularly set forth on EXHIBIT I attached hereto.
"OWNER'S SHARES" shall mean limited partnership interests in the
Partnership.
"OTHER PARCELS" shall mean those certain three (3) parcels of land adjacent
to or near the Land which are more particularly described on the plat of the
Property to be recorded as of the Closing.
"OWNER'S TITLE POLICY" shall mean a 1970 Form B American Land Title
Association extended coverage owner's policy of title insurance issued to
Transferee by the Title Company, pursuant to which the Title Company insures
Transferee'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 Transferee. The Owner's Title Policy shall insure Transferee in the
amount designated by Transferee and shall be acceptable in form and substance to
Transferee.
"PARTNERSHIP AGREEMENT" shall mean that certain amended and restated
limited partnership agreement relating to Transferee, which shall be
substantially in the form attached hereto as Exhibit J.
"PERMITTED TITLE EXCEPTIONS" shall mean those exceptions to title to the
Real Property that are satisfactory to Transferee as determined under this
Agreement, and as evidenced by a pro forma title report.
"PERSON" means and includes natural persons, corporations, limited
partnerships, limited liability companies, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts, banks, trusts
companies, land trusts, business trusts, Indian tribes or other organizations,
whether or not legal entities and governments and agencies and political
subdivisions thereof.
6
"PRELIMINARY TITLE REPORT" shall have the meaning set forth in Section
2.2(d).
"PROPERTY" shall have the meaning set forth in Recital B(4).
"REAL PROPERTY" shall have the meaning set forth in Recital B(2).
"REGISTERED OFFERING" shall have the same meaning set forth in Section
3.19.
"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.
"SEC" shall mean the United States Securities and Exchange Commission.
"SECURITIES" shall have the meaning set forth in Section 7.4.
"STATE" shall mean the state or commonwealth in which the Property is
located.
"SUMMARY SHEET" shall mean the summary page attached to this Agreement and
incorporated herein by reference.
"SURVEY" shall mean the survey prepared pursuant to Section 2.2(c).
"TANGIBLE PERSONAL PROPERTY" shall have the meaning set forth in Recital B
(3).
"TITLE COMPANY" shall mean a title insurance company selected by Transferee
and authorized to conduct a title insurance business in the State.
"TITLE OBJECTIONS" shall have the meaning set forth in Section 2.2(d).
"TRANSFEROR'S ORGANIZATIONAL DOCUMENTS" shall mean the current
organizational documents of Transferor.
"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.
"WARN ACT" shall mean the Worker Adjustment Retraining and Notification
Act, as amended.
7
1.2 RULES OF CONSTRUCTION. The following rules shall apply to the
construction and interpretation of this Agreement:
(a) 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) All references herein to particular articles, sections, subsections,
clauses or exhibits are references to articles, sections, subsections, clauses
or exhibits of this Agreement.
(c) 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) 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 CONTRIBUTION: PAYMENT OF BASE PURCHASE PRICE
2.1 PURCHASE AND CONTRIBUTION. Transferor agrees to contribute and
Transferee agrees to acquire the Property for the Base Purchase Price.
2.2 DUE DILIGENCE PERIOD.
(a) Transferee shall have the right, during the Due Diligence Period, and
thereafter if Transferee notifies Transferor that Transferee has elected to
proceed to Closing in the manner described below, to enter upon the Real
Property and to perform, at Transferor's expense, such surveying, engineering,
and environmental studies and investigations as Transferee may deem appropriate.
If such tests, studies and investigations warrant, in Transferee's sole,
absolute and unreviewable discretion, the purchase of the Property for the
purposes contemplated by Transferee, then Transferee may elect to proceed to
Closing and shall so notify Transferor and the Escrow Agent, in writing, prior
to the expiration of the Due Diligence Period. If for any reason Transferee
does not so notify Transferor and Escrow Agent of its determination to proceed
to Closing prior to the expiration of the Due Diligence Period, or if Transferee
notifies Transferor and Escrow Agent, in writing, prior to the expiration of the
Due Diligence Period that it has determined not to proceed to Closing, this
Agreement automatically shall terminate and Transferee and Escrow Agent shall be
released from any further liability or obligation under this Agreement and, if
requested by Transferor, Transferee will deliver such reports and materials to
Transferor.
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(b) During the Due Diligence Period, Transferor shall make available to
Transferee, 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,
Transferor's possession or control, or which Transferor may attain. Such
information is more particularly described in EXHIBIT L attached hereto, as the
same may be amended or supplemented by Transferor from time to time.
(c) Within thirty (30) days from the date hereof, if requested by
Transferee, Transferor shall deliver to Transferee an ALTA/ACSM survey or a
boundary survey, as reasonably required by Transferee, 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 Transferee, Transferor and the Title Company (and any
lender or other party designated by Transferee), 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 Transferee has any objection to Survey matters, the same shall
be treated for all purposes as Title Objections within the provisions of this
Agreement.
(d) Transferor agrees to provide to Transferee, within five (5) business
days following the date of this Agreement, a copy of any existing title
insurance policies which Transferor 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, Transferee, 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 Transferor of
any defects in title shown by such examination that Transferee 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, Transferor shall
notify Transferee whether Transferor is willing to cure such defects. If
Transferor is willing to cure such defects, Transferor shall act promptly and
diligently to cure such
9
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, Transferor shall be obligated to
pay and discharge such defects at Closing, except for the mortgages scheduled
and set forth in EXHIBIT M attached hereto (the "Mortgage Indebtedness")
which Transferee shall take subject to as provided in Section 2.3(a). For
such purposes, Transferor may use all or a portion of the cash to close. If
Transferor is unable to cure such defects by Closing, after having attempted
to do so diligently and in good faith, Transferee shall elect (1) to waive
such defects and proceed to Closing without any abatement in the Base
Purchase Price, or (2) to terminate this Agreement. Transferor 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 Transferee's prior written
consent. All title matters revealed by Transferee's title examination and not
objected to by Transferee as provided above shall be deemed Permitted Title
Exceptions. If Transferee shall fail to examine title and notify Transferor
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, Transferee 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) Transferor shall deliver to Transferee within fourteen (14) days after
the date of the execution of this Agreement by Transferor and Transferee a
disclosure schedule that accurately and completely identifies and describes (a)
all Employment Agreements (including name of employee, social security number,
wage or salary, accrued vacation benefits, other fringe benefits, etc.), and (b)
an updated Golf Club membership list, setting forth the names of the members of
the Golf Club, the length of their membership, the payment obligations of the
members and a summary of the terms of the memberships (the "Disclosure
Schedule").
(f) Transferor shall deliver to Transferee within thirty (30) days after
the date of execution of this Agreement by Transferor and Transferee current
searches of all Uniform Commercial Code financing statements filed with the
Secretary of State of the State respecting Transferor, together with searches
for pending litigation, tax liens and bankruptcy filings in all appropriate
jurisdictions.
2.3 XXXXXXX MONEY DEPOSIT AND PAYMENT OF BASE PURCHASE PRICE. The Base
Purchase Price shall be paid to Transferor in the following manner:
(a) The Xxxxxxx Money Deposit shall be paid by Transferee to Escrow Agent
on the date hereof, which amount shall be credited without interest to the
Transferor as a portion of the Base
10
Purchase Price at closing or released to Transferee in the event that this
Agreement is terminated for any reason unless otherwise provided for in this
Agreement.
(b) Transferee shall (i) take subject to the Mortgage Indebtedness in an
aggregate amount not in excess of the Base Purchase Price and (ii) receive a
credit against the Base Purchase Price in an amount equal to a sum necessary to
pay off in full the Mortgage Indebtedness, including any prepayment premium, and
to obtain a release of such deeds of trust or mortgages evidencing the Mortgage
Indebtedness as of the Closing Date, as evidenced by a payoff letter from the
beneficiary of each such deed of trust or mortgage in form and substance
satisfactory to Transferee and the Title Company.
(c) Transferee shall pay in cash an amount necessary to pay for certain
costs incurred by Transferor in connection with the preparation of certain
audited financial statements, due diligence costs and closing costs and to
permit the liquidation of certain third party-interests in Transferor, as set
forth in a schedule to be prepared by Transferor and delivered to Transferee
prior to the expiration of the Due Diligence Period, which schedule shall be
subject to Transferee's review and approval, which approval shall not be
unreasonably withheld.
(d) Transferee shall pay a portion of the Base Purchase Price equal to
$880,000.00 to Transferor in Owner's Shares. The number of Owner's Shares
required for such payment shall be the quotient obtained by dividing the above
described portion of the Base Purchase Price by the average closing price for
the common stock of Company for the five (5) day period prior to May 30, 1998.
(e) Transferee shall pay the balance of the Base Purchase Price to
Transferor in cash.
ARTICLE 3
TRANSFEROR'S REPRESENTATIONS, WARRANTIES AND COVENANTS
To induce Transferee to enter into this Agreement and to purchase the
Property, and to pay the Base Purchase Price therefor, Transferor hereby makes
the following representations, warranties and covenants with respect to the
Property, subject to the Warranty Disclosure Schedule attached hereto as EXHIBIT
P, upon each of which Transferor acknowledges and agrees that Transferee is
entitled to rely and has relied:
3.1 ORGANIZATION AND POWER. Transferor 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 hereunder and under any document or instrument required
to be executed and delivered by or on behalf of Transferor hereunder.
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3.2 AUTHORIZATION AND EXECUTION. This Agreement has been, and each of the
agreements and certificates of Transferor to be delivered to Transferee at
Closing as provided in Section 5.1 will be, duly authorized by all necessary
action on the part of Transferor, has been duly executed and delivered by
Transferor, constitutes the valid and binding agreement of Transferor and is
enforceable against Transferor 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 Transferor's performance of its obligations
hereunder. 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 Transferor and its representatives and
agents.
3.3 NONCONTRAVENTION. The execution and delivery of, and the performance
by Transferor of its obligations under, this Agreement do not and will not
contravene, or constitute a default under, any provision of applicable law or
regulation, Transferor's Organizational Documents or any agreement, judgment,
injunction, order, decree or other instrument binding upon Transferor, or result
in the creation of any lien or other encumbrance on any asset of Transferor.
There are no outstanding agreements (written or oral) pursuant to which
Transferor (or any predecessor to or representative of Transferor) 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 Transferee by Transferor), 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 Transferor will have acquired or will
have any basis to assert any right, title or interest in, or right to
possession, use, enjoyment or proceeds of, all or any portion of the Property.
There are no rights, subscriptions, warrants, options, conversion rights or
agreements of any kind outstanding to purchase or to otherwise acquire any
interest or profit participation of any kind in the Property or any part
thereof.
3.4 NO SPECIAL TAXES. Transferor 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 Transferor'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). Notwithstanding
the foregoing, Transferor discloses that the Town of Belen, New Mexico is
considering annexation of the Property into the Town of Belen.
3.5 COMPLIANCE WITH EXISTING LAWS. Transferor possesses all
Authorizations, each of which is valid and in full force and effect, and no
provision, condition or limitation of any of the Authorizations has been
breached or violated. Transferor has not misrepresented or failed to disclose
any relevant fact in obtaining all Authorizations, and Transferor 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. Transferor has not taken any action (or failed
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to take any action), the omission of which would result in the revocation of any
of the Authorizations. Transferor 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 date hereof.
3.6 REAL PROPERTY. To the best of Transferor'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 Transferor
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. Transferor has not received any
written notice which is still in effect that there is, and, to the best of
Transferor's knowledge, there does not exist, any violation of a condition or
agreement contained in any easement, restrictive covenant or any similar
instrument or agreement effecting the Real Property, or any portion thereof.
3.7 PERSONAL PROPERTY. All of the Tangible Personal Property and
Intangible Personal Property being conveyed by Transferor to Transferee is free
and clear of all liens and encumbrances and will be so on the Closing Date and
Transferor has good, merchantable title thereto and the right to convey same in
accordance with the terms of this Agreement, except as set forth as permitted
liens on Exhibit M attached hereto.
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. Transferor has,
performed all of its obligations under each of the Operating Agreements and no
fact or circumstance has occurred which, by itself or with the passage of time
or the giving of notice or both, would constitute a default under any of the
Operating Agreements. Transferor shall not enter into any new Operating
Agreements, supply contract, vending or service contract or other agreements
with respect to the Property, nor shall Transferor enter into any agreements
modifying the Operating Agreements, unless (a) any such agreement or
modification will not bind Transferee or the Property after the Closing Date, or
(b) Transferor has obtained Transferee's prior written consent to such agreement
or modification. Transferor acknowledges that Transferee will not assume any of
the Operating Agreements and none of the Operating Agreements will be binding on
Transferee or the Property after Closing.
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3.9 WARRANTIES AND GUARANTIES. Transferor 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
Transferee.
3.10 INSURANCE. All of Transferor's insurance policies are valid and in
full force and effect, all premiums for such policies were paid when due and all
premiums due as of the Closing Date for such policies (and any replacements
thereof) shall be paid by Transferor on or before the due date therefor.
Transferor shall pay all premiums on, and shall not cancel or voluntarily allow
to expire, any of Transferor'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.
Transferor 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. Transferor has received no notice
of any condemnation or eminent domain proceeding pending or threatened against
the Property or any part thereof. Transferor 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
Transferor'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 Transferor, there is no
action, suit or proceeding pending or known to be threatened against or
affecting Transferor or any of its properties in any court, before any
arbitrator or before or by any Governmental Body which (a) in any manner raises
any question affecting the validity or enforceability of this Agreement or any
other agreement or instrument to which Transferor 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 Transferor, (c) could materially
and adversely affect the ability of Transferor to perform its obligations
hereunder, 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 Transferor 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 dispute pending or,
to the best of Transferor's knowledge, threatened as to the operation or
maintenance of the Property or any part
14
thereof. Transferor 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. Transferor is not a party to any employment
contracts or agreements, other than the Employment Agreements, and neither
Transferor nor its managing agent will, between the date hereof and the Closing
Date, enter into any new employment contracts or agreements, amend any existing
Employment Agreement, except with the prior written consent of Transferee.
Transferor acknowledges that Transferee will not assume any of the Employment
Agreements and Transferor has complied with and shall be responsible for
compliance with the WARN Act and any other applicable employment-related laws or
ordinances. Transferor 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 Transferor's knowledge, all of
Transferor'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. Transferor'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. Transferor covenants, that between the date
hereof and the Closing Date, it will (a) operate the Property in the usual,
regular and ordinary manner consistent with Transferor's prior practice, (b)
maintain its books of account and records in the usual, regular and ordinary
manner, in accordance with sound accounting principles applied on a basis
consistent with the basis used in keeping its books in prior years and (c) use
all reasonable efforts to preserve intact its present business organization,
keep available the services of its present officers, partners and employees and
preserve its relationships with suppliers and others having business dealings
with it. Except as otherwise permitted hereby, from the date hereof until
Closing, Transferor shall not take any action or fail to take action the result
of which would have a material adverse effect on the Property or Transferee'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, Transferor
shall not, other than in the ordinary course of business, (a) make any
agreements which shall be binding upon Transferee 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 Transferor has
operational control. Between the date hereof and the Closing Date, if and to
the extent requested by Transferee, Transferor shall deliver to Transferee such
periodic information with respect to the above
15
information as Transferor customarily keeps internally for its own use.
Transferor agrees that it will operate the Property in accordance with the
provisions of this Section 3.16 between the date hereof and the Closing Date.
3.17 BANKRUPTCY. No Act of Bankruptcy has occurred with respect to
Transferor.
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 Transferor is not aware of any proposal to change or
restrict such use. Transferor 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 PUBLIC OFFERING; PREPARATION OF S-11. Transferor shall cooperate in
the preparation by an Affiliate of Transferee of a Form S-11 or, if applicable,
a Form S-3 under the Securities Act of 1933, as amended, to be filed with the
SEC in connection with any public offering (the "Registered Offering"). The
Registered Offering shall be for purposes of selling shares of common stock in
an Affiliate of Transferee. Transferor shall provide Transferee access to all
financial and other information relating to the Property which would be
sufficient to enable them to prepare financial statements in conformity with
Regulation S-X of the SEC and to enable the Transferee to prepare a registration
statement, report or disclosure statement for filing with the SEC. At
Transferee's request Transferor shall provide to Transferee's representatives a
signed representation letter sufficient to enable an independent public
accountant to render an opinion on the financial statements related to the
Property.
3.20 HAZARDOUS SUBSTANCES. Except as may be disclosed in the Phase I
environmental assessment report for the Property, to the best of Transferor'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 Transferor in accordance with all applicable laws), in or
under the Property or have been released into the environment, or discharged,
placed or disposed of at, on or under the Property; (ii) no underground storage
tanks are, or have been, located at the Property; (ii) the Property has never
been used to store, treat or dispose of Hazardous Substances; and (iv) the
Property and its prior uses comply with, and at all times have complied with all
applicable Environmental Laws or any other governmental law, regulation or
requirement relating to environmental and occupational health and safety matters
and Hazardous Substances. To the best of Transferor's knowledge, there
currently exist no acts or circumstances hat could reasonably be expected to
give rise to a material non-compliance with Environmental Laws, material
environmental liability or material Environmental Claim.
16
3.21 UTILITIES. All Utilities required for the operation of the Property
either enter the Property through adjoining streets, or they pass through
adjoining land and do so in accordance with valid public easements or private
easements, and all of said Utilities are installed and are in 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.
3.22 CURB CUTS. All curb cut street opening permits or licenses required
for vehicular access to and from the Property from any adjoining public street
have been obtained and paid for and are in full force and effect.
3.23 LEASED PROPERTY. The Personal Property identified 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.
3.24 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.
3.25 ACCREDITED INVESTOR. Transferor and all equity owners of Transferor
are as of the date hereof, and as of the Closing Date shall be, "Accredited
Investors". Concurrent herewith Transferor shall execute and deliver to
Transferee the Accredited Investor Questionnaire attached hereto as Exhibit N.
Each of the representations, warranties and covenants contained in this
Article III are intended for the benefit of Transferee and any underwriter in
the Registered Offering. Each of said representations, warranties and covenants
shall survive the Closing for a period of one (1) year, at which time they shall
expire unless prior to such time Transferee 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 Transferee shall be deemed to terminate the effect of any such
representations, warranties and covenants, it being understood that Transferee
has the right to rely thereon and that each such representation, warranty and
covenant constitutes a material inducement to Transferee to execute this
Agreement and to close the transaction contemplated hereby and to pay the Base
Purchase Price to Transferor.
17
ARTICLE 4
TRANSFEREE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
To induce Transferor to enter into this Agreement and to contribute the
Property, Transferee hereby makes the following representations, warranties and
covenants, upon each of which Transferee acknowledges and agrees that Transferor
is entitled to rely and has relied:
4.1 ORGANIZATION AND POWER. Transferee 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 Transferee hereunder.
4.2 NONCONTRAVENTION. The execution and delivery of this Agreement and the
performance by Transferee of its obligations hereunder do not and will not
contravene, or constitute a default under, any provisions of applicable law or
regulation, Partnership Agreement or any agreement, judgment, injunction, order,
decree or other instrument binding upon Transferee or result in the creation of
any lien or other encumbrance on any asset of Transferee.
4.3 LITIGATION. There is no action, suit or proceeding, pending or known
to be threatened, against or affecting Transferee 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 Transferee, or (b) could materially and adversely affect the
ability of Transferee to perform its obligations hereunder, or under any
document to be delivered pursuant hereto.
4.4 BANKRUPTCY. No Act of Bankruptcy has occurred with respect to
Transferee.
4.5 AUTHORIZATION AND EXECUTION. This Agreement has been, and each of the
agreements and certificates of Transferee to be delivered to Transferor at
Closing as provided in Section 5.2 will be, duly authorized by all necessary
action on the part of Transferee, has been duly executed and delivered by
Transferee, constitutes the valid and binding agreement of Transferee and is
enforceable against Transferee 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 Transferee and its representatives and agents.
4.6 TRADE NAME. Transferee shall not use the trade name referenced in
Recital B(4) in connection with any other property owned by Transferee or any
Affiliate of Transferee.
ARTICLE 5
CONDITIONS AND ADDITIONAL COVENANTS
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5.1 AS TO TRANSFEREE'S OBLIGATIONS. Transferee's obligations hereunder are
subject to the satisfaction of the following conditions precedent and the
compliance by Transferor with the following covenants:
(a) TRANSFEROR'S DELIVERIES. Transferor shall have delivered to or for the
benefit of Transferee, as the case may be, on or before the Closing Date, all of
the documents and other information required of Transferor pursuant to this
Agreement.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS. All of Transferor's
representations and warranties made in this Agreement shall be true and correct
as of the date hereof 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 date hereof. Transferor shall have
performed all of its covenants and other obligations under this Agreement and
Transferor shall have executed and delivered to Transferee on the Closing Date a
certificate dated as of the Closing Date to the foregoing effect in the form of
EXHIBIT O 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. Transferee shall have determined that Transferor
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. Transferor shall not have
taken any action or permitted or suffered any action to be taken by others from
the date hereof 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, 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 date hereof, reasonable wear and tear
excepted. Prior to Closing, Transferor shall not have diminished the quality or
quantity of maintenance and upkeep services heretofore provided to the Real
Property and the Tangible Personal Property. Transferor 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 Transferee.
(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 date hereof and the Closing Date,
Transferor shall have received no notice of any material
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increase or proposed material increase in the rates charged for the Utilities
from the rates in effect as of the date hereof.
(g) LIQUOR LICENSE. Transferee, or Transferee's nominee (which is
Transferor), 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, Transferor and Transferee, or Transferee's nominee (which is
Transferor), 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.
(h) PARTNERSHIP AGREEMENT. Transferor shall have delivered to Transferee
a countersigned copy of the Partnership Agreement in a form prepared by
Transferee, which shall be in substantially the form attached hereto as Exhibit
J.
(i) GOLF COURSE LEASE. An Affiliate of Transferor shall have delivered to
Transferee a countersigned copy of the Golf Course Lease in a form prepared by
Transferee, which shall be in substantially the form attached hereto as EXHIBIT
E.
(j) APPROVAL BY BOARD OF DIRECTORS. Approval of the Board of Directors of
Golf Trust of America, Inc. of the transaction contemplated by this Agreement by
an affirmative vote prior to the expiration of the Due Diligence Period.
Each of the conditions and additional covenants contained in this Section are
intended for the benefit of Transferee and may be waived in whole or in part by
Transferee, but only by an instrument in writing signed by Transferee.
5.2 AS TO TRANSFEROR'S OBLIGATIONS. Transferor's obligations hereunder are
subject to the satisfaction of the following conditions precedent and the
compliance by Transferee with the following covenants:
(a) TRANSFEREE'S DELIVERIES. Transferee shall have delivered to or for
the benefit of Transferor, on or before the Closing Date, all of the documents
and payments required of Transferee pursuant to this Agreement.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS. All of Transferee's
representations and warranties made in this Agreement shall be true and correct
as of the date hereof and as of the Closing Date as if then made and Transferee
shall have performed all of its covenants and other obligations under this
Agreement.
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(c) COUNTERSIGNED COPIES OF PARTNERSHIP AGREEMENT AND GOLF COURSE LEASE.
Transferee shall have delivered to Transferor countersigned copies of the
Partnership Agreement and Golf Course Lease.
Each of the conditions and additional covenants contained in this Section are
intended for the benefit of Transferor and may be waived in whole or in part, by
Transferor, but only by an instrument in writing signed by Transferor.
ARTICLE 6
CLOSING
6.1 CLOSING. Closing shall be held at 2:00 p.m., Eastern Standard time,
at the offices of Transferee (or counsel to Transferee) on May 29, 1998;
provided, however, that the Closing Date period may be extended for an
additional thirty (30) days by Transferee, at its sole discretion by providing
written notice to Transferor prior to May 29, 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 Transferee at Closing, subject only to Permitted Title Exceptions.
6.2 TRANSFEROR'S DELIVERIES. At Closing, Transferor shall deliver to
Transferee all of the following instruments, each of which shall have been duly
executed and, where applicable, acknowledged and/or sworn on behalf of
Transferor and shall be dated as of the Closing Date:
(a) The certificate required by Section 5.1 (b).
(b) The Deed.
(c) The Xxxx of Sale - Personal Property.
(d) Water Rights Lease Agreement, Amended and Restated Water Rights Lease
Agreement, or other conveyance document of all of Transferor's water rights on
the Property which shall allow Transferee the ability to access and use the
quantity and quality of potable and non-potable water needed to provide for the
operation of the Property as described herein and in the Golf Course Lease.
(e) The Golf Course Lease.
(f) (Reserved).
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(g) Such agreements, affidavits or other documents as may be required by
the Title Company to issue the Owner's Title Policy including those endorsements
requested by Transferee, 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.
(h) The FIRPTA Certificate.
(i) To the extent available, true, correct and complete copies of all
warranties, if any, of manufacturers, suppliers and installers possessed by
Transferor and relating to the Property, or any part thereof.
(j) Certified copies of Transferor's Organizational Documents.
(k) Appropriate resolutions of the board of directors or partners, as the
case may be, of Transferor, certified by the secretary or an assistant secretary
of Transferor or a general partner, as the case may be, together with all other
necessary approvals and consents of Transferor, authorizing (i) the execution on
behalf of Transferor of this Agreement and the documents to be executed and
delivered by Transferor prior to, at or otherwise in connection with Closing,
and (ii) the performance by Transferor of its obligations hereunder and under
such documents, or appropriate resolutions of the partners of Transferor, as the
case may be.
(l) A valid, final and unconditional certificate of occupancy for the Real
Property and Improvements, issued by the appropriate Governmental Body allowing
for the use of the Real Property as a golf course and permitting the continued
operation of the improvements as presently operated.
(m) Such proof as Transferee may reasonably require with respect to
Transferor's compliance (or indemnity with respect to compliance) with the bulk
sales laws or similar statutes.
(n) Copy of each and every existing insurance policy covering the Property
and certificates evidencing such coverage.
(o) To the extent available, a set or copies of the plans and
specifications for the Improvements.
(p) A written instrument executed by Transferor, conveying and
transferring to Transferee all of Transferor'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 Transferor maintains a post
office box solely with respect to the Property, conveying to Transferee all of
its
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interest in and to such post office box and the number associated therewith, so
as to assure a continuity in operation and communication.
(q) All current real estate and personal property tax bills in
Transferor's possession or under its control.
(r) All surveys and plot plans of the Real Property in possession of or in
the control of Transferor.
(s) A complete list of all scheduled tournaments, functions and the like,
in reasonable detail.
(t) A list of Transferor's outstanding accounts receivable as of midnight
on the date prior to the Closing, specifying the name of each account and the
amount due Transferor.
(u) A pay off statement prepared by any holder of Mortgage Indebtedness
setting forth the amount, including accrued interest and prepayment penalties,
to pay off the Mortgage Indebtedness.
(v) Written notice executed by Transferor notifying all interested
parties, including all tenants under any leases of the Property, that the
Property has been conveyed to Transferee and directing that all payments,
inquiries and the like be forwarded to Transferee at the address to be provided
by Transferee.
(w) The Pledge Agreement executed by Transferor encumbering Owner's Shares
as more particularly described in the Golf Course Lease.
(x) The Management Agreement by and between Transferor and Tenant with
respect to liquor licenses and alcoholic beverage permits related to the
Property.
(y) Restrictive covenants and perpetual easements for vehicular and
pedestrian access, ingress, egress, utilities, and maintenance as to the Other
Parcels such that Transferee shall have perpetual access to the Other Parcels,
and further so that Transferee shall have the right to approve in its reasonable
discretion permitted uses of the Other Parcels along with an architectural
review of the location, exterior design, and construction of any improvements
(other than single family residences and directly related improvements)
constructed on such Other Parcels.
(z) Assignment of Transferor's interest in the diversionary use of water
rights related to the Property in a form acceptable to Transferee.
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(aa) Any other document or instrument reasonably requested by Transferee
with respect to the Property.
6.3 TRANSFEREE'S DELIVERIES. At Closing, Transferee shall pay or deliver
to Transferor the following:
(a) The cash portion of the Base Purchase Price less the Xxxxxxx Money
Deposit by federal funds wire to an account designated by Transferor.
Additionally, the Escrow Agent shall remit the Xxxxxxx Money Deposit to the
Transferor.
(b) The remaining portion of the Base Purchase Price payable in Owner's
Shares issued to Transferor.
(c) Any other document or instrument reasonably requested by Transferor
relating to the transaction contemplated hereby.
6.4 MUTUAL DELIVERIES. At Closing, Transferee and Transferor shall
mutually execute and deliver each to the other:
(a) A closing statement for Transferor and a closing statement for
Transferee (collectively, the "Closing Statements") reflecting the Base Purchase
Price and the adjustments and prorations required hereunder and the allocation
of income and expenses required hereby.
(b) 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 continued
effectiveness of any liquor licenses or alcoholic beverage licenses or permits
for the Property, to the extent not theretofore executed and delivered, and a
management agreement among Transferor and the Affiliate lessee of the Golf
Course Lease such Transferor continues to manage the food and beverage and bar
operation on the Property for so long as the Affiliate lessee is the lessee
under the Golf Course Lease.
(c) The Golf Course Lease.
(d) The Partnership Agreement.
(e) 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 Transferor
shall pay for the cost of any audit required by Transferee with respect to the
Property. All filing fees for the Deed and the real estate transfer,
24
recording or other similar taxes due with respect to the transfer of title and
all charges for title insurance premiums shall be paid by Transferor.
Transferor shall pay for preparation of the documents to be delivered by
Transferor hereunder, 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 Transferee with respect to the Property. Transferor
shall receive a cash payment at closing to pay for such closing costs as
provided in Section 2.3(c).
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 Transferor and Transferee (or,
at Transferee's election, between Transferor and the lessee under the Golf
Course Lease to the extent such income or expenses will be payable by or
attributable to such lessee). Transferor 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 Transferee 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 Base Purchase Price payable by Transferee.
Without limiting the generality of the foregoing, the following items of income
and expense shall be prorated as of the Closing Date:
(a) Current and prepaid rents or fees, including, without limitation,
prepaid Golf Club membership fees, function receipts and other reservation
receipts.
(b) Real estate and personal property taxes.
(c) Utility charges (including but not limited to charges for water, sewer
and electricity).
(d) Value of fuel stored on the Property at the price paid for such fuel
by Transferor, including any taxes.
(e) Municipal improvement liens where the work has physically commenced
(certified liens) shall be paid by Transferor at Closing. Municipal improvement
liens which have been authorized, but where the work has not commenced (pending
liens) shall be assumed by Transferee.
(f) License and permit fees, where transferable.
(g) All other income and expenses of the Property, including, but not
being limited to such things as restaurant and snack bar income and expenses and
the like.
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(h) Such other items as are usually and customarily prorated between
Transferees and Transferors 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. Transferor 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) Transferee shall not be obligated to collect any accounts receivable
or revenues accrued prior to the Closing Date for Transferor, but if Transferee
collects same, such amounts will be promptly remitted to Transferor in the form
received. Transferee shall receive a credit at Closing for the amount of any
security deposits held by Transferor under any lease of any portion of the
Property that is being assigned to Transferee in accordance herewith.
(b) 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 xxxx or other
evidence of the applicable income or expense. Any income received or expense
incurred by Transferor or Transferee 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. Transferor 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, Transferor shall give written
notice thereof to Transferee promptly after Transferor learns or receives notice
thereof. If all or any part of the Real Property is, or is to be, so condemned
or sold, Transferee shall have the right to terminate this Agreement pursuant to
Section 8.3. If Transferee 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 Transferee
at Closing. Transferor will not settle or compromise any such proceeding
without Transferee'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 Transferor. If any such loss or damage occurs
prior to Closing, Transferee shall have the right to terminate this Agreement
pursuant to Section 8.3. If Transferee elects not to
26
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
Transferee at Closing.
7.3 REAL ESTATE BROKER. Except for a broker or finder who may have been
engaged by Transferor and for whom Transferor accepts sole financial
responsibility, and except for any broker or finder who may have been engaged by
Transferee and for whom Transferee accepts sole financial responsibility, there
is no real estate broker involved in this transaction. Transferee warrants and
represents to Transferor that Transferee has not dealt with any other real
estate broker in connection with this transaction, nor has Transferee been
introduced to the Property or to Transferor by any other real estate broker, and
Transferee shall indemnify Transferor and save and hold Transferor 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 Transferee, or as a result of having introduced Transferee to Transferor or
to the Property. In like manner, Transferor warrants and represents to
Transferee that Transferor has not dealt with any real estate broker in
connection with this transaction, nor has Transferor been introduced to
Transferee by any real estate broker, and Transferor shall indemnify Transferee
and save and hold Transferee 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 Transferor in
connection with this transaction. Transferee acknowledges that Xxxxx X. Xxxx, an
officer of the Transferee, 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, Transferee and Transferor shall keep the terms,
conditions and provisions of this Agreement confidential and neither shall make
any public announcements hereof unless the other first approves of same in
writing, nor shall either disclose the terms, conditions and provisions hereof,
except to their respective attorneys, accountants, engineers, surveyors,
financiers and bankers. Notwithstanding the foregoing, it is acknowledged that
the Company is a public company and will make a public announcement 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 the Registered Offering a public offering and
that in connection therewith, Transferee 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
Transferee'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.
27
7.5 LIQUOR LICENSES. Transferor shall continue to maintain 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, and shall enter into a management agreement with the Affiliate lessee
of the Golf Course Lease, the form of which shall be approved by Transferee. To
that end, Transferor and Transferee, shall cooperate each with the other, and
each shall execute such assignment agreements in forms mutually agreeable
between the parties provided that Transferor shall indemnify and hold
Transferee harmless from any liability, damages or claims encountered in
connection with such operations and Transferor shall continue to exercise
management and supervision of such facilities only as long as the Affiliate
lessor, or its assignee approved by Transferee, is the lessee under the Golf
Course Lease or until Transferee chooses to file all necessary alcoholic
beverage and liquor license applications for licenses and permits to manage and
supervise the facilities itself.
ARTICLE 8
LIABILITY OF TRANSFEREE; INDEMNIFICATION BY TRANSFEROR;
TERMINATION RIGHTS
8.1 LIABILITY OF TRANSFEREE. Except for any obligation expressly assumed
or agreed to be assumed by Transferee hereunder, Transferee does not assume any
obligation of Transferor or any liability for claims arising out of any
occurrence prior to Closing.
8.2 INDEMNIFICATION BY TRANSFEROR. Transferor hereby indemnifies and
holds Transferee 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 Transferee, whether before or after Closing,
as a result of any breach by Transferor of any of its representations,
warranties, covenants or obligations set forth herein or in any other document
delivered by Transferor pursuant hereto, for a period of one (1) year following
the Closing. The provisions of this section shall survive termination of this
Agreement by Transferee or Transferor.
8.3 TERMINATION BY TRANSFEREE. If any condition set forth herein for the
benefit of Transferee cannot or will not be satisfied prior to Closing, or upon
the occurrence of any other event that would entitle Transferee to terminate
this Agreement and its obligations hereunder, and Transferor fails to cure any
such matter within ten (10) business days after notice thereof from Transferee,
Transferee, at its option, may elect either (a) to terminate this Agreement and
all other rights and obligations of Transferor and Transferee hereunder shall
terminate immediately and Transferee shall be entitled to the return of its
Xxxxxxx Money Deposit, or (b) to waive its right to terminate (but without
waiving any breach or default on the part of Transferor) and, instead, to
proceed to Closing. If Transferee terminates this Agreement as a consequence of
a misrepresentation or breach of a warranty or covenant by Transferor, or a
failure by Transferor to perform its obligations hereunder, then Transferee
shall retain all remedies accruing as a result thereof, including, without
limitation, specific performance.
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8.4 TERMINATION BY TRANSFEROR. If any condition set forth herein for the
benefit of Transferor (other than a default by Transferee) cannot or will not be
satisfied prior to Closing, and Transferee fails to cure any such matter within
ten (10) business days after notice thereof from Transferor, Transferor may, at
its option, elect either (a) to terminate this Agreement, in which event the
rights and obligations of Transferor and Transferee hereunder shall terminate
immediately and Transferee shall be entitled to the return of its Xxxxxxx Money
Deposit, or (b) to waive its right to terminate, and instead, to proceed to
Closing. If, prior to Closing, Transferee materially defaults in performing any
of its obligations under this Agreement (including its obligation to purchase
the Property), and Transferee fails to cure any such material default within ten
(10) business days after notice thereof from Transferor, then Transferor's sole
remedy for such default shall be to terminate this Agreement and receive from
the Escrow Agent that portion of the Xxxxxxx Money Deposit that will reimburse
Transferor for actual reasonable out-of-pocket expenses incurred in connection
with this Agreement, and Transferor waives any additional claims for damages,
actual, consequential or otherwise, that it may possess against Transferee.
Transferee shall receive the remaining portion of the Xxxxxxx Money Deposit, if
any.
8.5 COSTS AND ATTORNEYS' FEES. In the event of any litigation or dispute
between the parties arising out of or in any way connected with this Agreement,
resulting in any litigation, arbitration or other form of dispute resolution,
then the prevailing party in such litigation shall be entitled to recover its
costs of prosecuting and/or defending same, including, without limitation,
reasonable attorneys' fees at trial and all appellate levels.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 COMPLETENESS: MODIFICATION. This Agreement constitutes the entire
agreement between the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior discussions, understandings,
agreements and negotiations between the parties hereto. This Agreement may be
modified only by a written instrument duly executed by the parties hereto.
9.2 ASSIGNMENTS. Transferee may assign its rights hereunder to an
Affiliate of Transferee without the consent of Transferor. Transferee may not
otherwise assign its interest herein without the prior written consent of
Transferor. Transferor may not assign any of its rights pursuant to this
Agreement without the prior written consent of Transferee, which may be withheld
in Transferee'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
29
in which the action is required to be performed or in which is located the
intended recipient of such notice, consent or other communication, such
performance shall be deemed to be required, and such notice, consent or other
communication shall be deemed to be given, on the first business day following
such Saturday, Sunday or legal holiday. Unless otherwise specified herein, all
references herein to a "day" or "days" shall refer to calendar days and not
business days.
9.5 GOVERNING LAW. This Agreement and all documents referred to herein
shall be governed by and construed and interpreted in accordance with the laws
of the State.
9.6 COUNTERPARTS. To facilitate execution, this Agreement may be executed
in as many counterparts as may be required. It shall not be necessary that the
signature on behalf of both parties hereto appear on each counterpart hereof.
All counterparts hereof shall collectively constitute a single agreement.
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 hereunder, and except as
otherwise expressly provided herein, each party hereto 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
hereunder 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 Transferor and
Transferee made in, or pursuant to, this
30
Agreement shall survive Closing and shall not merge into the Deed or any other
document or instrument executed and delivered in connection herewith.
9.12 FURTHER ASSURANCES. Transferor and Transferee 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 Transferor and Transferee specifically
established hereby.
9.14 CONFIDENTIALITY. Any confidential information delivered by Transferor
to Transferee hereunder shall be used solely for the purpose of acquiring the
Property and Transferee will keep such information confidential; provided
Transferee shall have the right to provide such information to its consultants
and advisors and to disclose such information as Transferee determines is
necessary or appropriate in connection with filing the Registered Offering any
public offering of the Securities. If Transferee does not acquire the Property,
it shall deliver to Transferor copies of all proprietary information delivered
to Transferee by Transferor. Transferor agrees to keep confidential the terms
and conditions of this Agreement and the Registered Offering; provided,
Transferor shall have the right to provide such information to its consultants
and advisors.
9.15 ESCROW AGENT. In the event of a dispute between the Transferor and
Transferee, the Escrow Agent shall not disburse the Xxxxxxx Money Deposit until
it has received 1) joint written instructions from the Transferor and
Transferee; or 2) an order from a court of competent jurisdiction directing the
Escrow Agent to distribute the escrowed funds. The Escrow Agent shall have no
duties except as stated herein and the parties agree that it shall not
constitute a conflict of interest for the Escrow Agent to represent the
Transferor or Transferee in connection with this Agreement. The Escrow Agent
shall not be liable for anything which it may do or refrain from doing in
connection herewith provided that it acts in good faith, and without gross
negligence, willful neglect or intentional breach of this Agreement. In the
event that the Escrow Agent becomes involved in litigation relating to the
Escrow, the non-prevailing party shall be responsible for the payment of the
Escrow Agent's reasonable fees and expenses and for the reasonable attorneys'
fees and costs of the prevailing party.
9.16 NEW MEXICO LAW REGARDING INDEMNIFICATION. Notwithstanding any other
term or condition of this Agreement, to the extent, if at all, Section 55-7-1
NMSA 1978 is applicable to any indemnification obligation set forth in this
Agreement, the agreement to indemnify, defend and hold harmless set forth herein
shall not extend to liability, claims, damages, losses or expenses, including
31
attorney's fees, arising out of (a) the preparation or approval of maps,
drawings, opinions, reports, surveys, change orders, designs or specifications
by the indemnitee, or the indemnitee's agents or employees; or (b) the giving or
the failure to give directions or instructions by the indemnitee, or the
indemnitee's agents or employees, or such giving or failure to give directions
or instructions is the primary cause of bodily injury to persons or damage to
property.
IN WITNESS WHEREOF, Transferor and Transferee have hereunder affixed their
signatures to this Contribution and Leaseback Agreement, all as of the 29th day
of May, 1998.
[SIGNATURES APPEAR ON NEXT PAGE]
32
"TRANSFEREE"
GOLF TRUST OF AMERICA, L.P., a
Delaware limited partnership
By: GTA GP, Inc. a Maryland corporation
Its: General Partner
By: /s/
-----------------------------------------
Name: W. Xxxxxxx Xxxxx, III
Title: President and Chief Executive Officer
33
"TRANSFEROR"
GOLF CLASSIC RESORTS, L.L.C.,
a Delaware limited liability company
By: /s/
-----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Sole Member
34
CONSENTED TO BY:
"ESCROW AGENT"
VALENCIA COUNTY TITLE COMPANY
By: /s/
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
35
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
[to be taken from survey]
A-1
EXHIBIT B
IMPROVEMENTS
The Land, together with the championship golf course (with agreed to
modifications to the 17th hole) driving range, putting greens, clubhouse,
facilities, snack bar, restaurant, pro-shop, buildings, structures, parking
lots, 2 tennis courts, 2 swimming pools, Seller's interest as lessee in the
Water Rights Lease from Xxxxxxx X. Xxxxxxxxx, improvements, fixtures, and other
items of real estate located on the Land.
B-1
EXHIBIT C
TANGIBLE PERSONAL PROPERTY
[to be provided by Transferor]
C-1
EXHIBIT D
INTANGIBLE PERSONAL PROPERTY
[to be provided by Xxxxxxxxxx]
X-0
EXHIBIT E
GOLF COURSE LEASE
E-1
EXHIBIT F
XXXX OF SALE - PERSONAL PROPERTY
WHEREAS, by deed of even date herewith, GOLF CLASSIC RESORTS, L.L.C., a
Delaware limited liability company ("Transferor") conveyed to GOLF TRUST OF
AMERICA, LP., a Delaware limited partnership ("Transferee"), whose mailing
address is 00 X. Xxxxx'x Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, 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 Transferor
desires to contribute, transfer and convey to Transferee certain items of
tangible personal property as defined in the Contribution and Leaseback
Agreement dated May 29, 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 Transferee to
Transferor, the receipt and sufficiency of which are hereby acknowledged,
Transferor 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 Transferee, its legal representatives, successors and assigns, all
items of tangible personal property and fixtures (if any) owned or leased by
Transferor, including, but not limited to machinery, equipment, furniture,
furnishings, movable walls or partitions, phone systems and other control
systems, restaurant equipment, computers or trade fixtures, golf carts, golf
course operation and maintenance equipment, including mowers, tractors,
aerators, sprinklers, sprinkler and irrigation facilities and equipment, valves
or rotors, driving range equipment, athletic training equipment, office
equipment or machines, antiques or other decorations, and equipment or machinery
of every kind or nature located on or useful in the operation of the Real
Property whether on or off-site, including all warranties and guaranties
associated therewith (the "Tangible Personal Property"), including, without
limitation, the personal property described in SCHEDULE 2 attached hereto and
all intangible personal property owned or possessed by Transferor and used in
connection with the ownership, operation, leasing or maintenance of the Real
Property or the Tangible Personal Property, all goodwill attributed to the
Property, and any and all trademarks and copyrights, guarantees, Authorizations
(as hereinafter defined) 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 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 Transferee elects not to acquire
and (b) the Current Assets, as hereof defined in the Agreement
F-1
(collectively, the "Intangible Personal Property"), and to have and to hold, all
and singular, the Tangible Personal Property and the Intangible Personal
Property unto Transferee forever.
EXECUTED this 29th day of May, 1998.
Transferor:
GOLF CLASSIC RESORTS, L.L.C.,
a Delaware limited liability company
By:
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Sole Member
F-2
SCHEDULE 1
DESCRIPTION OF PROPERTY
[to be taken from Survey]
F-3
SCHEDULE 2
DESCRIPTION OF PERSONAL PROPERTY
[to be provided by Transferor]
F-4
EXHIBIT G
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
XXXXXX XXXXX XXXXXX XXXXXXX & XXXXXXXX, LLP
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
--------------------------------------------------------------------------------
GRANT DEED
[to be provided by Transferor]
G-1
EXHIBIT H
TRANSFEROR'S FIRPTA AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee of a
United States real property interest must withhold tax if the transferor is a
foreign person. To inform the transferee that withholding of tax is not required
upon the disposition of a United States real property interest by GOLF CLASSIC
RESORTS, L.L.C., a Delaware limited liability company ("Transferor"), the
undersigned hereby certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations); and
2. Transferor's U.S. employer tax identification number is
00-0000000; and
3. Transferor's office address is 0000 Xxxx Xxxxxx Xxxx, Xxxxx, Xxx
Xxxxxx 00000.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
The undersigned officer of Transferor declares that he/she has examined
this certification and to the best of his/her knowledge and belief it is true,
correct and complete, and he/she further declares that he/she has authority to
sign this document on behalf of Transferor.
Dated: May 29, 1998
GOLF CLASSIC RESORTS, L.L.C.,
a Delaware limited liability company
By:
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Sole Member
H-1
STATE OF
-------------------------- )
) ss.
COUNTY OF )
-------------------------
On ____________________, 19____, before me ______________________, a Notary
Public in and for said State, personally appeared Golf Classic Resorts, L.L.C.,
a Delaware limited liability company, by Xxxxxx X. Xxxx, its Sole Member,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity on behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Notary Public, State of
-----------
My Commission expires:
------------
[Notary Seal]
H-2
EXHIBIT I
CONTRACTS AND OPERATING AGREEMENTS
1. That certain Lease by and between Golf Classic Resorts, L.L.C., d/b/a
Tierra Del Sol Golf Club, Inc., as lessee, and Colonial Pacific Leasing
Corporation dated July 31, 1996 for EZGO Golf Carts; and
2. That certain Equipment Lease Agreement by and between Golf Classic
Resorts, L.L.C., d/b/a Tierra Del Sol Golf Club and NBD Equipment Finance, Inc.
dated October 20, 1997 for trailer and miscellaneous equipment.
I-1
EXHIBIT J
Partnership Agreement.
J-1
EXHIBIT K
CONTINGENT PURCHASE PRICE FORMULA
A. DEFINITIONS. For purposes of this EXHIBIT K, the following terms shall
have the following meanings:
(1) "ADJUSTED NET OPERATING INCOME" means the Conversion Date Net
Operating Income, divided by 1.135.
(2) "CAPITALIZATION RATE" shall mean 10.5%.
(3) "COMPANY" means Golf Trust of America, Inc.
(4) "COMPANY'S FIRST CALL FFO" means the consensus FFO per share estimate
for the Company for the calendar year which includes the Conversion Date,
subtracting the Company's capital expenditure reserve per share as estimated for
that year as such estimate is reported by First Call (or, if First Call is no
longer in general use within the securities industry, by such other reporting
service as is then in general use within the securities industry) divided by the
average of the Company's closing share price for the thirty (30) trading days
immediately preceding the Conversion Date.
(5) "CONVERSION DATE" means the fifteenth (15th) day following the date on
which Transferee receives written notice that Transferor has irrevocably elected
to receive the Contingent Purchase Price.
(6) "CONVERSION DATE CAPITALIZATION RATE" shall mean the Company's First
Call FFO, plus 200 basis points (but in no event less than the Capitalization
Rate).
(7) "CONVERSION DATE NET OPERATING INCOME" means the Gross Operating
Revenue for the Property LESS the Gross Operating Expenses for the Conversion
Year.
(8) "CONVERSION YEAR" means the Fiscal Year (as defined in the Lease)
immediately preceding the Conversion Date.
(9) "CONVERSION NOTICE" shall mean a written notice delivered by
Transferor to Transferee whereby Transferor elects to receive the Contingent
Purchase Price. The Conversion Notice may only be given once and must be given
on or before April 15 of a calendar year. If the Conversion Notice is not given
on or before the one hundred fifth (105th) day following the end of the fifth
(5th) full Fiscal Year (as defined in the Lease) of the Initial Term (as defined
in the Lease),
K-1
Transferor's right to receive the Contingent Purchase Price shall automatically
and irrevocably terminate. The Conversion Notice may not be given prior to the
expiration of the second (2nd) full Fiscal Year of the Initial Term.
(10) "GROSS OPERATING EXPENSES" means the gross operating expenses of the
Property for the Conversion Year, calculated in accordance with generally
accepted accounting principles consistently applied as adjusted in Schedule K-1.
For purposes of calculating Gross Operating Expenses, Transferee may make
discretionary adjustments on a line item basis to reflect stabilized Gross
Operating Expenses, including the following adjustments:
(a) annual capital replacement reserves shall be included, as
reasonably determined by Transferee;
(b) annual cash expenditures (including depreciation) for golf carts
shall be included, as reasonably determined by Transferee;
(c) extraordinary expenditures (such as to repair storm damage) which
are not anticipated to recur in the ordinary course shall be excluded, as
reasonably determined by Transferee;
(d) other adjustments to reflect stabilized Gross Operating Expenses,
as reasonably determined by Transferee shall be made; and
(e) depreciation, amortization and debt service shall be excluded.
For purposes of determining the Contingent Purchase Price, Gross Operating
Expenses will be adjusted upward by Transferee to the extent such expenses (or
any major component thereof) have decreased at a compound annual rate greater
than 2% per annum from the Base Year to the Conversion Year or more than 3% (on
a year-to-year basis) from the year immediately preceding the Conversion Year,
unless, Transferee shall determine that such expense reductions were of a nature
so as to be reasonably expected to be sustained.
(11) "GROSS OPERATING REVENUE" means the gross operating revenue of the
Property, including revenue related to the golf course operations, food and
beverage operations and sale of merchandise, for the Conversion Year, calculated
in accordance with generally accepted accounting principles consistently applied
as adjusted in Schedule K-1. For purposes of determining the Contingent
Purchase Price, Gross Operating Revenue will be adjusted downward to the extent
such revenue has increased by more than 5.0% from the year immediately preceding
the Conversion Year to the Conversion Year, unless Transferee shall have
reasonably determined that such revenue increase can reasonably be expected to
be sustained. Factors to determine sustainability shall include factors such as
the creation of new demand generators (i.e., hotel development or
K-2
condominium development) and the non-recurring nature of any revenue (i.e., a
one-time tournament fee). Transferee shall further retain the right to make
downward adjustments to Gross Operating Revenue so as to establish reasonable
expectations of future cash flow results.
(12) "NET INCREMENTAL INCOME AVAILABLE FOR CONTINGENT PURCHASE PRICE" means
the Adjusted Net Operating Income for the Conversion Year, taking into account
the increased rental payments due under the Golf Course Lease as a result of
Transferor's election to receive the Contingent Purchase Price. including the
annual capital replacement reserve paid as additional rent.
(13) "NET OPERATING INCOME" means the Gross Operating Revenue of the
Property for the Conversion Year LESS the Gross Operating Expenses for the same
period.
B. CONTINGENT PURCHASE PRICE.
(1) Transferor shall have the right to receive the Contingent Purchase
Price by delivering the Conversion Notice to Transferee; provided that (i) the
tenant under the lease at the Property shall have paid percentage rent on an
annual basis for the prior calendar year, and (ii) at least one-half (1/2) of
the increase in the Adjusted Net Operating Income from the Base Year to the
Conversion Year is attributable to an increase in Gross Operating Revenue (not
including food and beverage operations and sale of merchandise), as reasonably
determined by Transferee. The Contingent Purchase Price shall equal the Net
Incremental Income Available for Contingent Purchase Price divided by the
Conversion Date Capitalization Rate.
(2) Within forty-five (45) days of the Conversion Date, Transferor shall
deliver to Transferee the number of Owner's Units in Transferee that equals the
Contingent Purchase Price divided by the per share common stock price of the
Company on the Conversion Date.
D. EXAMPLE.
The calculation of the Contingent Purchase Price is attached as
SCHEDULE K-1 for purposes of illustration only.
Schedule K: Example of Contingent Purchase Price.
K-3
SCHEDULE K-1
EXAMPLE OF CONTINGENT PURCHASE PRICE
[to be provided by Transferee]
Sch K-1
EXHIBIT L
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. TRANSFEROR REPRESENTS THAT THIS ITEM IS NOT
APPLICABLE.
(d) Structural engineering report covering the clubhouse and any
other major buildings. TRANSFEROR REPRESENTS THAT THIS ITEM IS
NOT AVAILABLE.
(e) Long-term water quality and quantity reports.
(f) Wetlands delineation or compliance report. TRANSFEROR REPRESENTS
THAT NO WETLANDS EXIST ON THE PROPERTY.
(g) Other plans, specifications, appraisals, market studies, soil and
engineering reports, surveys, and environmental reports and
studies in Transferor's possession.
(h) Any other reports reasonably required by the Transferee.
(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 1997, 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-1
(l) Copies of organizational documents of Transferor and evidence
that all necessary approvals of Transferor to enter into this
Agreement have been obtained.
(m) Such other documents and information as the Transferee 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.
TRANSFEROR REPRESENTS THAT NONE OF THE ABOVE EXIST.
(o) A description of any known defects in the Property. TRANSFEROR
REPRESENTS THAT THERE ARE NONE KNOWN.
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___ ). TRANSFEROR REPRESENTS THAT
NONE EXIST.
(f) Number of daily fee paid rounds (1994 - present).
(g) Number of member rounds (1994 - present).
L-2
(h) Number of complimentary rounds (1994 - present).
(i) Total number of rounds (1994 - present).
(j) Description of replay policy. TRANSFEROR REPRESENTS THAT NONE
EXIST.
(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 1997.
(n) Owner's projected operating statements for the Property for 1998.
(o) Depreciation (1996).
(p) Amortization (1996).
(q) Balance Sheet (1996).
(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.
L-3
(i) Own - TRANSFEROR REPRESENTS THAT NONE ARE OWNED.
(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. TRANSFEROR
REPRESENTS THAT THIS ITEM IS NOT APPLICBLE.
(x) A copy of the closing statement for any re-financing of any debt on
the Property within the last two (2) years. TRANSFEROR REPRESENTS
THAT THERE HAVE BEEN NO REFINANCES.
L-4
EXHIBIT M
SCHEDULE OF MORTGAGES
NONE.
SCHEDULE OF PERMITTED LIENS
NONE.
M-1
EXHIBIT N
GOLF TRUST OF AMERICA, L.P.
INVESTOR SUITABILITY QUESTIONNAIRE
INDIVIDUAL INVESTORS
--------------------------------------------------------------------------------
Golf Trust of America, L.P. and Golf Trust of America, Inc. (collectively,
the "Company"), will use the responses to this questionnaire to qualify
prospective investors for purposes of United States federal and state securities
laws. This is not an offer to sell or the solicitation of an offer to buy
securities. Such an offer can be made only by appropriate offering
documentation. Any such offer may be conditioned upon your qualification as an
accredited investor under federal and
state securities laws.
If the answer to the question below is "none" or "not applicable", please
so indicate.
Your answers will be kept confidential at all times. However, by signing
this Questionnaire, you agree that the Company may present this Questionnaire to
such parties as it deems appropriate to establish the availability of exemptions
from registration under state and federal securities laws.
I. GENERAL INFORMATION
1. REGISTRATION OF SECURITIES
Name to appear with respect to the securities:
-----------------------------
--------------------------------------------------------------------------------
Name of beneficial owner (if different from above):
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
If the beneficial owner differs from the registered holder, describe the
relationship:
--------------------------------------------------------------
--------------------------------------------------------------------------------
N-1
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2. PROPOSED INVESTMENT
Aggregate amount of your proposed investment in this financing:
U.S. $
-----------
II. INVESTOR INFORMATION
1. PERSONAL
Residence Address:
--------------------------------------------------------------------------------
Residence Telephone Number:
--------------------------------------------------------------------------------
Social Security Number:
--------------------------------------------------------------------------------
Date of Birth:
--------------------------------------------------------------------------------
2. BUSINESS
Occupation:
--------------------------------------------------------------------------------
Number of Years:
--------------------------------------------------------------------------------
Present Employer:
--------------------------------------------------------------------------------
Position/Title:
--------------------------------------------------------------------------------
N-2
Business Address:
--------------------------------------------------------------------------------
3. INCOME
(a) Do you expect that your annual gross income for calendar year 19
will be more than $200,000?
[ ] Yes [ ] No
(b) Was your annual gross income for calendar year 19 more than
$200,000?
[ ] Yes [ ] No
(c) Was your annual gross income for calendar year 19 more than
$200,000?
[ ] Yes [ ] No
4. NET WORTH
(a) Was your net worth as of December 31, 19 , together with the net
worth* of your spouse, if applicable, in excess of $1,000,000?
[ ] Yes [ ] No
(b) In the event you may propose to purchase U.S.$150,000 or more of
securities of the Company, does your total purchase price exceed 10%
of your net worth, or joint net worth with your spouse, at the time of
purchase?
[ ] Yes [ ] No
If "yes," what percent of net worth does the total purchase price
represent?
---------------------------------------------------------------------
---------------------------------------------------------------------
N-3
"Net worth" may include principal residence, net of encumbrances, at either cost
or appraised value, and furnishings and automobiles.
5. EDUCATION
Please describe your educational background and degrees obtained, if any.
---------------------------------------------------------------------
---------------------------------------------------------------------
6. INVESTMENT EXPERIENCE
(a) Please describe briefly principal jobs held during the last five
years. Specific employers need not be identified. What is sought is a
sufficient description to permit a determination concerning the extent
of your experience in financial and business matters.
---------------------------------------------------------------------
---------------------------------------------------------------------
(b) Please indicate the frequency of your investment in marketable
securities: ( ) often; ( ) occasionally; ( ) seldom; ( ) never.
(c) Please indicate the frequency of your investment in securities in
which no market is made: ( ) five or more; ( ) 1 or more, but fewer
than five; ( ) none.
7. RELATIONSHIP TO COMPANY
Please briefly describe the nature of any relationship you may already have
with the Company or any of its partners, including the appropriate date
when such relationship began.
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
N-4
---------------------------------------------------------------------
8. ADVISORS
In evaluating this investment, will you use the services of any advisor?
[ ] No, I will not use the services of any advisor
[ ] Yes, I will use the services of the advisor(s) identified below:
(a) ACCOUNTANT/FINANCIAL ADVISOR
Name
----------------------------------------------------------------------
Address
-------------------------------------------------------------------
City State/Province
--------------------------------- ---------------------
Zip/Postal Code Telephone
------------------------- -----------------------
(b) ATTORNEY
Name
----------------------------------------------------------------------
Address
-------------------------------------------------------------------
City State/Province
--------------------------------- ---------------------
Zip/Postal Code Telephone
------------------------- -----------------------
9. REPRESENTATIONS AND WARRANTIES
The undersigned hereby confirms the accuracy of each of the representations and
warranties attached hereto as Schedule N-1.
III. SIGNATURE
The above information is true and correct in all material respects and the
undersigned recognizes that the Company and its counsel are relying on the truth
and accuracy of such
N-5
information in relying on an exemption from the registration requirements of the
Securities Act of 1933, as amended, and in determining applicable state
securities laws and relying on exemptions contained therein. The undersigned
agrees to notify the Company promptly of any changes in the foregoing
information which may occur prior to the investment.
Executed at , on , 19 .
---------------------- ------------------ -----
-----------------------------------
(Signature)
-----------------------------------
(Print Name)
N-6
SCHEDULE N-1
REPRESENTATIONS AND WARRANTIES
(a) You represent that you are an "accredited investor" as such term
is defined in Rule 501 of Regulation D promulgated under the Securities Exchange
Act of 1934, as amended (the "Act"), and that you are able to bear the economic
risk of an investment in the operating partnership units or shares of common
stock of the Company (collectively, the "Shares").
(b) You acknowledge that vou have prior investment experience,
including investment in non-listed and non-registered securities, and the
ability and expertise to evaluate the merits and risks of such an investment on
your behalf.
(c) You hereby represent that (i) the Company has made available to
you the final Prospectus of the Company dated February 6, 1997, and the
documents incorporated therein, and all documents filed by the Company with the
United States Securities and Exchange Commission (the "Commission") pursuant to
the Act (collectively, the "Offering Documents"), and (iii) you have
carefully reviewed the Offering Documents.
(d) You hereby represent that you have been furnished by the Company
with all information regarding the Company which you have requested or desired
to know; that you have been afforded the opportunity to ask questions of, and
receive answers from, duly authorized officers or other representatives of the
Company concerning the terms and conditions of the private placement offering of
the Shares (the "Offering"), and have received any additional information which
you have requested.
(e) You hereby acknowledge that the offering of Shares has not been
reviewed by, and the fairness of such Shares has not been determined by, the
Commission or any state regulatory authority, since the Offering is intended to
be a nonpublic offering pursuant to Section 4(2) of the Act. You represent that
the Shares being acquired by you are being acquired for your own account, for
investment and not for distribution of the Shares to others.
(f) You understand that the Shares have not been registered under the
Act or any state securities or "blue sky" laws and are being sold in reliance on
exemptions from the registration requirements of the Act and such laws.
(g) The Company may rely, and shall be protected in acting upon, any
papers or other documents which may be submitted to it by you in connection with
the Shares and which are believed by it to be genuine and to have been signed or
presented by the proper party or parties, and
N-7
the Company shall not have any liability or responsibility with respect to the
form, execution or validity thereof.
N-8
EXHIBIT O
TRANSFEROR'S CERTIFICATE
Pursuant to SECTION 5.1(b) of that certain Contribution and Leaseback
Agreement (the "Agreement") by and between the undersigned ("Transferor") and
GOLF TRUST OF AMERICA, L.P., a Delaware limited partnership (Transferee") dated
as of May 29, 1998, Transferor hereby certifies to Transferee that all of its
representations and warranties set forth in ARTICLE III of the Agreement are
true and correct, subject to the following:
None.
Dated: May 29, 1998
GOLF CLASSIC RESORTS, L.L.C.,
a Delaware limited liability company
By:
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Sole Member
O-1
EXHIBIT P
WARRANTY DISCLOSURE SCHEDULE
None.
P-1
