ASSIGNMENT AND ASSUMPTION OF CONCESSION LICENSES
ASSIGNMENT AND ASSUMPTION OF CONCESSION LICENSES, made as of the __
day of March __, 1997 (this "Agreement"), by and between American Golf
Corporation, a California corporation having an address at 0000 00xx Xxxxxx,
Xxxxx Xxxxxx, Xxxxxxxxxx 00000 ("Assignor"), XXXXXXX'X ISLAND FAMILY GOLF
CENTERS, INC. ("RIFGC"), a Delaware corporation having an address at 000
Xxxxxxxxxxx Xxxx, Xxxxx 000X, Xxxxxxxx, Xxx Xxxx 00000 and DARLINGTON FAMILY
GOLF CENTERS, INC. ("DFGC"), a Delaware Corporation having an address of 000
Xxxxxxxxxxx Xxxx, Xxxxx 000X, Xxxxxxxx, Xxx Xxxx 00000 (RIFGC and DFGC are
collectively referred to herein as "Assignees" and individually as an
"Assignee").
W I T N E S S E T H :
WHEREAS, by Concession License, dated November 5, 1990 (the
"Xxxxxxx'x Island License") by and between the City of New York (the "City")
acting by and through its Commissioner of the Department of Parks and
Recreation, and Assignor, as licensee (which License is attached as Exhibit A
hereto), Assignor was granted the license to construct, operate, maintain and
manage the golf recreation center, including a driving range, miniature golf
course, batting cages, snack bar and pro shop on Xxxxxxx'x Island (the
"Xxxxxxx'x Island Concession");
WHEREAS, by Concession License, dated November 22, 1989 (the
"Darlington License") by and between the County of Bergen, a body politic and
corporate of the State of New Jersey (the "County") and Assignor, as licensee;
as modified by that certain Order for Entry of Judgment, entered on June 11,
1993 in the Superior Court of New Jersey, Chancery Division, Bergen County,
and as amended by that certain Agreement Amendment, dated April 19, 1995(which
Darlington License is attached as Exhibit B hereto), Assignor was granted the
license to construct, manage, operate and maintain the Darlington Driving
Range located in Mahwah, New Jersey (the "Darlington Concession") (the
Darlington Concession and the Xxxxxxx'x Island Concession collectively
referred to herein as the "Concessions" and the Darlington License and the
Xxxxxxx'x Island License collectively referred to herein as the "Licenses");
WHEREAS, Assignor desires to assign to RIFGC its entire interest as
concessionaire under the Xxxxxxx'x Island License and RIFGC desires to accept
such assignment and assume Assignor's obligations under the Xxxxxxx'x Island
License on the terms and conditions hereinafter set forth;
WHEREAS, Assignor desires to assign to DFGC its entire interest as
concessionaire under the Darlington License and DFGC desires to accept such
assignment and assume Assignor's obligations under the Darlington License on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of TEN ($10.00) DOLLARS, the terms
and conditions set forth herein, and other good and valuable consideration,
the mutual receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree to the foregoing and as follows:
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1. Assignment and Assumption. Assignor assigns, sets over and
transfers to RIFGC and DFGC all right, title and interest of Assignor in and
to the Xxxxxxx'x Island License and Darlington License, respectively, and each
of RIFGC and DFGC assumes and agrees to perform any and all of the obligations
to be performed by the concessionaire or licensee or contractor under the
Xxxxxxx'x Island License and Darlington License, respectively, (as if each
such Assignee executed the License originally as concessionaire or licensee or
contractor thereunder). Each Assignee further agrees to be bound by and fully
responsible for all of the covenants, agreements, terms, provisions, and
conditions of Assignor under the License which it is assuming. Each Assignee
agrees that the obligations assumed by it hereunder and agreements contained
herein shall benefit the City and County, as the case may be, and its
successors and assigns, as well as Assignor.
2. Xxxx of Sale. Assignor does hereby sell, assign, transfer and
convey to RIFGC, in the case of the Xxxxxxx'x Island Concession and DFGC, in
the case of the Darlington Concession, and each of RIFGC and DFGC does hereby
purchase and acquire from Assignor, all of Assignor's right, title and
interest in and to the following property (collectively, the "Property"):
2.1 all furnishings, fixtures, machinery, equipment,
vehicles and personalty attached or appurtenant to and used in connection with
the Concessions that are owned by Assignor, and all inventories, supplies,
sales, marketing and instructional materials of every kind and description
owned by Assignor relating to the businesses conducted by Assignor at the
Concessions (the "Businesses"), located at the Darlington Concession or the
Xxxxxxx'x Island Concession, including without limitation, the items described
on Exhibit C-1 and C-2 attached hereto and made a part hereof (the "Personal
Property");
2.2 the files, books, notices and other correspondence from
any governmental agencies, and other records used or held by Assignor or its
affiliates solely in connection with the ownership and/or operation of the
Concessions (collectively, the "Records");
2.3 any consents, authorizations, variances, waivers,
licenses, certificates, permits and approvals held by or granted to Assignor
solely in connection with the ownership of the Concessions (collectively, the
"Permits");
2.4 the contracts, leases and other agreements relating to
the operation of the Businesses described on Exhibit D-1 and D-2 attached
hereto and made a part hereof (the "Xxxxxxx'x Island Contracts" and
"Darlington Contracts" which shall collectively be referred to as the
"Contracts");
2.5 any manufacturers' and vendors' warranties and
guarantees held by Assignor which relate solely to the Concessions, except to
the extent the same relate solely to any Retained Assets or Retained
Liabilities (as hereinafter defined) (the "Claims"); and
2.6 any other properties and assets of every kind and
nature, real or personal, tangible or intangible, owned by Assignor relating
solely to the Concessions or the Businesses, except to the extent the same
relate solely to the Retained Assets or Retained Liabilities.
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3. Assets to be Retained by Assignor. Anything herein to the contrary
notwithstanding, Assignor shall not sell, and Assignees shall not acquire, the
following assets of Assignor (the "Retained Assets"):
3.1 any rights of Assignor with respect to insurance
policies owned by Assignor or for which Assignor is the named insured;
3.2 all cash, funds in bank accounts and cash equivalents
existing as of the date hereof; and
3.3 any patents, trademarks, trademark registrations,
copyrights, copyright registrations, trade names and all registrations thereof
and all applications for any of the foregoing, whether issued or pending, if
any, and all goodwill associated with any of the foregoing (the " Intangible
Assets").
4. Assumption of Certain Liabilities. Each of RIFGC and DFGC hereby
assume and agree to pay and discharge when due all liabilities and obligations
of Assignor under the Xxxxxxx'x Island License, the Darlington License and/or
the Concessions, or arising with respect to the Property, to the extent the
same arise from and after the date hereof (the "Assumed Liabilities").
Assignor shall retain, and Assignees shall not assume, perform, discharge or
pay, and shall not be responsible for, any and all liabilities or obligations
of any nature whatsoever in connection with or relating to the Concessions or
the Property, Assignor or any predecessor owner of the Concessions, the
Businesses other than the Assumed Liabilities (collectively, the "Retained
Liabilities").
5. Consideration.
5.1 In consideration for the assignment of the Licenses,
Assignees shall:
a. pay to Assignor on the Closing Date (as
hereinafter defined) the sum of $2,300,000.00, subject to adjustment as
hereinafter provided, payable in cash, by certified or bank check or by the
wire transfer of funds on the date hereof; and
b. assume the Assumed Liabilities.
6. Closing; Adjustments.
6.1 The closing of the transactions provided for in this
Agreement shall take place simultaneously with the execution and delivery of
this Agreement (the "Closing"). (The actual date of the Closing shall be
referred to herein as the "Closing Date").
6.2 The parties hereto agree that (i) all compensation
payable to the City and County under the Licenses and all other operating
expenses of Assignor relating to the Concessions (i.e., cost of goods sold,
advertising, collections, fees, hired services, insurance, miscellaneous
expenses, postage, repairs and maintenance, supplies, taxes, utilities, wages
and interest on indebtedness, but specifically not including professional fees
and expenses, travel and lodging or depreciation), and (ii) all income of
Assignor derived from Assignor's operations under the Licenses, including
accounts receivable, shall be apportioned between Assignor and Assignees
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as of the Closing Date based on the portion of each such expense or revenue
attributable to the period falling on or before the Closing Date on the one
hand, which Assignor shall bear the responsibility and benefit of, and the
portion of each such expense or revenue attributable to the period falling
after the Closing Date, on the other hand, which Assignees shall bear the
responsibility and benefit of (the "Adjustment"). The net Adjustment will be
paid by the party owing the same to the other in cash or by certified or
official bank check or wire transfer. The expenses and liabilities for which
Assignor shall be liable pursuant to this Section shall be included within the
meaning of the term "Retained Liabilities".
6.3 To the extent that any of the prorations made pursuant
to this Article are based upon estimates of payments to be made and/or
expenses to be incurred by Assignees subsequent to the Closing Date, or either
party discovers any errors in or omissions in respect of the Adjustment,
Assignor and Assignees agree to adjust such prorations promptly upon receipt
by Assignor or Assignees, as the case may be, of such payments or of bills or
other documentation setting forth the actual amount of such expenses.
6.4 Assignor and Assignees shall maintain and make available
to each other any books or records necessary for the adjustment of any item
pursuant to this Article. The provisions of this Article shall survive the
Closing.
7. Representations and Warranties of Assignor. Assignor hereby
represents and warrants to each Assignee as follows:
7.1 Organization; Power and Authority. Assignor is a
corporation duly organized, validly existing and in good standing under the
laws of the State of California, and has all requisite power and authority to
carry on its business as it is now being conducted, to execute, deliver and
perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
7.2 Due Authorization and Execution; Effect of Agreement.
The execution, delivery and performance by Assignor of this Agreement and the
consummation by Assignor of the transactions contemplated hereby have been
duly authorized by all necessary corporate action required to be taken on the
part of the Assignor. This Agreement has been duly and validly executed and
delivered by Assignor and constitutes the valid and binding obligation of
Assignor, enforceable in accordance with its terms. The execution, delivery
and performance by Assignor of this Agreement and the consummation by Assignor
of the transactions contemplated hereby will not, with or without the giving
of notice or the lapse of time, or both, (a) violate any provision of any law,
rule or regulation to which Assignor is subject; (b) violate any order,
judgment or decree applicable to Assignor; or (c) conflict with or result in a
breach of or a default under any term or condition of Assignor's Certificate
of Incorporation or By-laws or any term or condition of any agreement or other
instrument to which Assignor is a party or by which it or its assets may be
bound, except in each case, for violations, conflicts, breaches or defaults
which in the aggregate would not materially hinder or impair the consummation
of the transactions contemplated hereby.
7.3 Consents. No consent, approval or authorization of,
exemption by, or filing with, any governmental or regulatory authority or any
third party is required in connection with the execution, delivery and
performance by Assignor of this Agreement, except for consents, approvals,
authorizations, exemptions and filings, if any, which have been obtained.
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7.4 Compliance with Applicable Laws. To Assignor's actual
knowledge, (i) Assignor is not engaging in any activity or omitting to take
any action as a result of which Assignor is in violation of any law, rule,
regulation, ordinance, statute, order, injunction or decree, or any other
requirement of any court or governmental or administrative body or agency,
applicable to the Concessions, and (ii) neither the execution and delivery by
Assignor of this Agreement or of any of the other agreements and instruments
to be executed and delivered by it pursuant hereto, nor the performance by
Assignor of its obligations hereunder or thereunder nor the consummation of
the transactions contemplated hereby or thereby will result in any such
violation. To Assignor's actual knowledge, Assignor is in compliance with all
material requirements imposed in writing by any insurance carrier of Assignor
to the extent such carrier is an insurer or indemnitor of the Concessions.
Assignor has not received any notice that the Concessions are in violation of
any law, municipal ordinance, orders or requirements issued by any building
department or other governmental agency or subdivision having jurisdiction.
7.5 Permits. All Permits required by any federal, state, or
local law, rule or regulation and necessary for the operation of the
Concessions and the Businesses as currently being conducted have been obtained
and are currently in effect. To Assignor's actual knowledge, no registrations,
filings, applications, notices, transfers, consents, approvals, orders,
qualifications, waivers or other actions of any kind are required by virtue of
the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby (a) to avoid the loss of any Permit or the
violation of any law, regulation, order or other requirement of law, or (b) to
enable Assignee to continue the operation of the Concessions as presently
conducted after the Closing. To Assignor's actual knowledge, the current use
and occupation of any portion of the Concessions does not violate any of, and,
where applicable, is in material compliance with, the Permits, any applicable
deed restrictions or other covenants, restrictions or agreements including
without limitation, any of the Permitted Exceptions, site plan approvals,
zoning or subdivision regulations or urban redevelopment plans applicable to
the Concessions.
7.6 The Licenses. Attached hereto as Exhibit A and B are
true and correct copies of the Licenses. Each of the Licenses is in full force
and effect, has not been modified or amended in any way except as stated above
and, to Assignor's actual knowledge, neither the City, in the case of the
Xxxxxxx'x Island License, nor the County, in the case of the Darlington
License, is in default, or sent any notice of default, in respect of either of
the Licenses. Assignor is not in default, and has not received any notice of
default, in respect of either of the Licenses. To Assignor's actual knowledge,
no event has occurred or circumstance exists which, with the giving of notice
or the passage of time, or both, would constitute a default under either of
the Licenses. Neither City, in the case of the Xxxxxxx'x Island License, nor
the County, in the case of the Darlington License, has notified Assignor that
the City or County has exercised any right or option, or stated its intent, to
terminate or cancel either of the Licenses. Assignor has not exercised any
right or option, or stated its interest, to terminate or cancel either of the
Licenses. Assignor has not assigned, transferred or conveyed either of the
Licenses or any interest therein, or granted any right or option with respect
thereto, to any party other than Assignee. The expiration date of the
Xxxxxxx'x Island License is March 1, 2007 and the expiration of the Darlington
License is March 1, 2011.
7.7 Personal Property. Exhibits C-1 and C-2 sets forth a
complete list of all Personal Property currently used by Assignor in the
operation of the Concessions.
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7.8 Title to the License and Property. The Concessions and
the Property are free and clear of any and all liens, charges, encumbrances,
mortgages, pledges, security interests, easements, agreements and other
interests and adverse claims (collectively, "Encumbrances"), other than the
matters set forth in Exhibit E attached hereto and made a part hereof (the
"Permitted Exceptions").
7.9 Contracts. Except for the Licenses and the Contracts (as
defined in Section 2.4 and listed on Exhibits D-1 and D-2), Assignor is not a
party to any leases, contracts, orders or agreements relating to the
Concessions, the Property or the Businesses (written or otherwise) that will
survive the Closing.
7.10 Condition of the Improvements. To Assignor's actual
knowledge, (i) there are no material structural or mechanical defects in the
Improvements, and (ii) there are no leaks in any roof on any Improvement.
7.11 As-is-Conveyance. Except as set forth in Section 7.8
above, the Personal Property shall be conveyed in its "AS IS AND WITH ALL
FAULTS CONDITION," without warranty, express or implied, of any kind
whatsoever (including, without limitation, without any warranty of
merchantibility).
7.12 Environmental Matters.
7.12.1 As used in this Agreement "Hazardous
Material" shall mean: (i) any "hazardous substance" as now defined pursuant to
the Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"), 42 U.S.C. ' 9601(33); (ii) any "pollutant or contaminant" as
defined in 42 U.S.C. ' 9601(33); (iii) any material now defined as "hazardous
waste" pursuant to 40 C.F.R. Part 261; (iv) any petroleum, including crude oil
and any fraction thereof; (v) natural or synthetic gas usable for fuel; (vi)
any "hazardous chemical" as defined pursuant to 29 C.F.R. Part 1910; (vii) any
asbestos, asbestos containing material, polychlorinated biphenyl ("PCB"), or
isomer of dioxin, or any material or thing containing or composed of such
substance or substances; and (viii) any other pollutant, contaminant,
chemical, or industrial or hazardous, toxic or dangerous waste, substance or
material, defined or regulated as such in any Environmental Law (as
hereinafter defined).
7.12.2 To the actual knowledge of Assignor, there
is no Hazardous Material at, under or on the Concessions in violation of any
Environmental Law and there is no ambient air, surface water, groundwater or
land contamination within, under, originating from or relating to the
Concessions in violation of any Environmental Law. Assignor has not, and has
not caused to be, manufactured, processed, distributed, used, treated, stored,
disposed of, transported or handled any Hazardous Material at, on or under the
Concessions in violation of any Environmental Law.
7.12.3 To the actual knowledge of Assignor,
Assignor has no obligation or liability imposed or based upon any provision
(i) under any foreign, federal, state or local law, rule, or regulation or
common law, or (ii) under any code, order, decree, judgment or injunction
applicable to Assignor or the Concessions or (iii) under any notice, or
request for information issued, promulgated, approved or entered under the
items listed in clause (ii) above, or (iv) under
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the common law, relating to public health or safety, worker health or safety,
or pollution of, damage to or protection of the environment, (including
without limitation, laws relating to emissions, discharges, releases or
threatened releases of Hazardous Material into the environment (including
without limitation, ambient air, surface water, groundwater, land surface or
subsurface)), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, generation, disposal, transport or
handling of Hazardous Material (hereinafter collectively referred to as
"Environmental Laws").
7.12.4 Assignor has not been subject to any civil,
criminal or administrative action, suit, claim, hearing, notice of violation,
investigation (to Assignor's actual knowledge), inquiry or proceeding for
failure to comply with, or received notice of any violation or potential
liability under the Environmental Laws in respect of the Concessions.
.7.12.5 To the actual knowledge of Assignor, the
Concessions are not (a) listed or proposed for listing on the National
Priority List or (b) listed on the Comprehensive Environmental Response,
Compensation, Liability Information System List ("CERCLIS") promulgated
pursuant to CERCLA, 42 U.S.C. ' 9601(9), or any comparable list maintained by
any foreign, state or local government authority.
7.12.6 To the actual knowledge of Assignor, there
are no underground storage tanks at the Concessions and Assignor further
warrants and represents that, to Assignor's actual knowledge, any prior use
and operation of underground storage tanks has been in compliance with all
Environmental Laws.
7.13 Tax Proceedings. There are no proceedings pending
regarding the reduction of real estate taxes or assessments in respect of the
Concessions.
7.14 Utilities. All water, storm and sanitary sewer, gas,
electricity, and telephone (i) adequately service the Concessions, and (ii)
enter the Concessions through lands as to which valid public or private
easements exist that will inure to the benefit of Assignees and the
Concessions. The cost of installation of such utilities has been fully paid.
7.15 Access. To Assignor's actual knowledge, there are no
(i) federal, state, county, municipal or other governmental plans to change
the highway or road system in the vicinity of the Concessions which could
materially restrict or change access from any such highway or road to the
Concessions, or (ii) pending or threatened condemnation or eminent domain
proceedings relating to or affecting the Concessions.
7.16 Insurance Requirements. To Assignor's actual knowledge,
all requirements or recommendations by any insurer or by any board of fire
underwriters or similar body in respect of the Concessions have been
satisfied.
7.17 Litigation. There is no action or proceeding (zoning or
otherwise) or governmental investigation pending, or, to Assignor's actual
knowledge, threatened against, or relating to, Assignor (insofar as it relates
to the Concessions or the Businesses), the Concessions, the Businesses or the
transactions contemplated by this Agreement, nor, to Assignor's actual
knowledge, is there any basis for any such action, proceeding or
investigation.
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7.18 Assessments. There are no special or other assessments
for public improvements or otherwise now affecting the Concessions nor does
Assignor know of (a) any pending or threatened special assessments affecting
the Concessions or (b) any contemplated improvements affecting the Concessions
that may result in special assessments affecting the Concessions.
7.19 Employee Agreements. There are no union or employment
contracts or agreements (written or oral) involving employees of Assignor or
its affiliates affecting the Concessions or the Business which will survive
the Closing. All employees of Assignor employed to work at either of the
Concessions will have been terminated as of the Closing Date.
7.20 Work at the Concessions. No services, material or work
have been supplied to either of the Concessions for which payment has not been
made in full.
7.21 Financial Condition. Assignor has delivered, or shall
deliver no later than 20 days after the date hereof, to Assignee true and
correct copies of: (i) audited financial statements consisting of balance
sheets and income statements of Assignor as of December 31, 1995 and December
31, 1996 for each of the Concessions; and (ii) monthly internal reports for
the months of January, February and the period from March 1, 1997 through the
date hereof. Such balance sheet presents fairly the financial condition,
assets and liabilities of Assignor with respect to the Concessions as of its
date; such statement of income presents fairly the results of operations of
Assignor for the period indicated. The financial statements referred to in
this Section are in accordance with the books and records of Assignor. Since
December 31, 1996: (a) there has at no time been a material adverse change in
the financial condition, results of operations, businesses, properties,
assets, liabilities or future prospects of Assignor, the Concessions, the
Property or Businesses; (b) the Business has been conducted in all respects
only in the ordinary course; and (c) Assignor has not suffered an
extraordinary loss (whether or not covered by insurance) or waived any right
of substantial value.
7.22 Full Disclosure. To the best knowledge of Assignor,
none of the information supplied by Assignor herein or in the exhibits hereto
contains any untrue statement of a material fact or omits to state a material
fact required to be stated herein or necessary in order to make the statements
herein, in light of the circumstances under which they are made, not
misleading.
As used in this Agreement, the term "Assignor's actual
knowledge" means the actual knowledge of Xxxx Xxxxxx, who is the Regional
Operating Executive of Assignor for the Northeast United States, Xxx Xxxxxx,
the Executive Vice President of Assignor, Xxx Xxxxxxx, the Manager of the
Xxxxxxx'x Island Concession, and Xxxxx Xxxxxx, the Manager of the Darlington
Concession.
8. Representations and Warranties of Assignee. Each of the
Assignees hereby represents and warrants to Assignor as follows:
8.1 Organization; Power and Authority. Each Assignee is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and has all requisite power and authority to
carry on its business as it is now being conducted, to execute, deliver and
perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
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8.2 Due Authorization and Execution; Effect of Agreement.
The execution, delivery and performance by each Assignee of this Agreement and
the consummation by Assignee of the transactions contemplated hereby have been
duly authorized by all necessary corporate action required to be taken on the
part of each Assignee. This Agreement has been duly and validly executed and
delivered by each Assignee and constitutes the valid and binding obligation of
Assignee, enforceable in accordance with its terms. The execution, delivery
and performance by each Assignee of this Agreement and the consummation by
each Assignee of the transactions contemplated hereby will not, with or
without the giving of notice or the lapse of time, or both, (a) violate any
provision of any law, rule or regulation to which such Assignee is subject;
(b) violate any order, judgment or decree applicable to such Assignee; or (c)
conflict with or result in a breach of or a default under any term or
condition of such Assignee's Certificate of Incorporation or By-Laws or any
agreement or other instrument to which such Assignee is a party or by which it
or its assets may be bound, except in each case, for violations, conflicts,
breaches or defaults which in the aggregate would not materially hinder or
impair the consummation of the transactions contemplated hereby.
9. Survival. The representations and warranties of the parties made
in Articles 7 and 8 shall survive until the second anniversary of the Closing
Date except for Section 7.12 which shall survive until the expiration of the
statute of limitations applicable to claims that may be asserted against the
Assignees, the Concessions or the Businesses in respect of the matters covered
thereby.
10. Further Assurances. At any time and from time to time after the
date hereof, either party shall, at the request of the other party, execute
and deliver any further instruments or documents and take all such further
action as the requesting party may reasonably request in order to transfer
into the name of Assignees the Licenses and any and all Property contemplated
to be sold pursuant to this Agreement and to further consummate the
transactions contemplated by this Agreement. This Article shall survive the
Closing.
11. Brokers. Assignor and Assignees warrant and represent to each
other that they dealt with no broker, finder or similar agent or party who or
which might be entitled to a commission or compensation on account of
introducing the parties, the negotiation or execution of this Agreement and/or
the closing of the transaction provided for herein. Assignees and Assignor
hereby respectively agree to indemnify and hold harmless the other party from
and against all loss, liability, damage and expense (including, without
limitation, attorneys' fees) imposed upon or incurred by the other party by
reason of any claim for commissions or other compensation for bringing about
this transaction by any broker, finder or similar agent. The provisions of
this Article shall survive the Closing or any termination of this Agreement.
12. Costs and Fees.
12.1 Assignor shall pay (a) the costs and expenses incurred
in connection with the preparation of the audited financial statements
referred to in Section 7.21 hereof, and (b) transfer or conveyancing taxes, if
any.
12.2 Assignee shall pay for (a) the examination of title,
(b) the policy of title insurance for Assignee, (c) an ASTM Phase I
environmental survey of the Concessions, and (d)
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all other costs and expenses incurred by Assignee in conducting its due
diligence of the Concessions and Licenses.
12.3 Each party shall pay for its own legal costs and
expenses. Any other costs expressly provided for elsewhere in this Agreement
shall be divided and borne in accordance with the usual practices in the
jurisdiction where the Concessions are located.
12.4 The provisions of this Article shall survive the
Closing.
13. Indemnification.
13.1 Subject to the further provisions of this Article,
Assignor shall protect, defend, hold harmless and indemnify Assignee, its
officers, directors, shareholders, employees, agents and affiliates, and their
respective successors and assigns, from, against and in respect of any and all
losses, liabilities, deficiencies, penalties, fines, costs, damages and
expenses whatsoever (including without limitation, reasonable professional
fees and costs of investigation, litigation, settlement, and judgment and
interest) ("Losses") that may be suffered or incurred by any of them arising
from or by reason of (i) any Retained Liability or other liability or
obligation of Assignor which is not an Assumed Liability; and (ii) any and all
actions, suits, proceedings, claims, demands, assessments, judgments, costs
and expenses (including without limitation, interest, penalties, reasonable
legal fees and accounting fees) incident to the foregoing and the enforcement
of the provisions of this Section 13.1.
13.2 Subject to the further provisions of this Article,
Assignees shall protect, defend, hold harmless and indemnify Assignor, its
officers, directors, shareholders, employees, agents and affiliates and their
respective successors and assigns from, against and in respect of any and all
Losses that may be suffered or incurred by any of them arising from or by
reason of (i) any of the Assumed Liabilities on and after the date hereof; and
(ii) any and all actions, suits, proceedings, claims, demands, assessments,
judgments, costs and expenses (including without limitation, interest,
penalties, reasonable legal fees and accounting fees) incident to the
foregoing and the enforcement of the provisions of this Section 13.2.
13.3 Whenever a party hereto (such party and each of its
affiliates which is entitled to indemnification pursuant to any provision of
this Agreement, an "Indemnified Party") shall learn after the Closing of a
claim that, if allowed (whether voluntarily or by judicial or quasijudicial
tribunal or agency), would give rise to an obligation of another party (the
"Indemnifying Party") to indemnify the Indemnified Party under any provision
of this Agreement, before paying the same or agreeing thereto, the Indemnified
Party shall promptly notify the Indemnifying Party in writing of all such
facts within the Indemnified Party's knowledge with respect to such claim and
the amount thereof (a "Notice of Claim"). If, prior to the expiration of
thirty (30) days from the mailing of a Notice of Claim, the Indemnifying Party
shall request, in writing, that such claim not be paid, the Indemnified Party
shall not pay the same, provided the Indemnifying Party proceeds promptly, at
its or their own expense (including employment of counsel reasonably
satisfactory to the Indemnified Party), to settle, compromise or litigate, in
good faith, such claim. After notice from the Indemnifying Party requesting
the Indemnified Party not to pay such claim and the Indemnifying Party's
assumption of the defense of such claim at its or their expense, the
Indemnifying Party shall not be liable to the Indemnified Party for any legal
or other expense subsequently incurred by the Indemnified Party in connection
with the defense thereof. However,
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the Indemnified Party shall have the right to participate at its expense and
with counsel of its choice in such settlement, compromise or litigation. The
Indemnified Party shall not be required to refrain from paying any claim which
has matured by a court judgment or decree, unless an appeal is duly taken
therefrom and execution thereof has been stayed, nor shall the Indemnified
Party be required to refrain from paying any claim where the delay in paying
such claim would result in the foreclosure of a lien upon any of the property
or assets then held by the Indemnified Party. The failure to provide a timely
Notice of Claim as provided in this Section 13.3 shall not excuse the
Indemnifying Party from its or their continuing obligations hereunder;
however, the Indemnified Party's claim shall be reduced by any damages to the
Indemnifying Party resulting from the Indemnified Party's delay or failure to
provide a Notice of Claim as provided in this Section 13.3.
13.4 For purposes of this Article, any assertion of fact
and/or law by a third party that, if true, would constitute a breach of a
representation or warranty made by a party to this Agreement or make
operational an indemnification obligation hereunder, shall, on the date that
such assertion is made, immediately invoke the Indemnifying Party's obligation
to protect, defend, hold harmless and indemnify the Indemnified Party pursuant
to this Article.
.14. Bulk Sales. The parties agree to waive the requirements, if any,
of all applicable bulk sales laws. As an inducement to Assignee to enter into
such waiver, Assignor represents and warrants that (a) it will not be rendered
insolvent by the transactions contemplated by this Agreement, and (b) all
debts, obligations and liabilities relating to the Concessions and Businesses
that are not expressly assumed by Assignees under this Agreement will be
promptly paid and discharged by Assignor as and when they become due. Assignor
agrees to indemnify and hold Assignees harmless from, and reimburse Assignees
for, any loss, cost, expense, liability or damage which Assignees may suffer
or incur by virtue of the noncompliance by Assignor with any law pertaining to
fraudulent conveyance, bulk sales or any similar law which makes the sale or
transfer of any part of the Property or License ineffective as to creditors of
or claimants against Assignor.
15. Notices. All notices, demands, requests, consents or other
communications ("Notices") which either party may desire or be required to
give to the other hereunder shall be in writing and shall be delivered by
hand, overnight express carrier, or sent by registered or certified mail,
return receipt requested, postage prepaid, in either event, addressed to the
parties at their respective addresses first above set forth. A copy of any
Notice given by Assignor to either of the Assignees shall simultaneously be
given in either manner provided above to Squadron, Ellenoff, Plesent &
Xxxxxxxxx, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
X. Xxxx, Esq. A copy of any Notice given by either of the Assignees to
Assignor shall simultaneously be given in either manner provided above to the
General Counsel of Assignor. Notices given in the manner aforesaid shall be
deemed to have been given three (3) business days after the day so mailed, the
day after delivery to any overnight express carrier and on the day so
delivered by hand. Either party shall have the right to change its address(es)
for the receipt of Notices by giving Notice to the other party in either
manner aforesaid. Any Notice required or permitted to be given by either party
may be given by that party's attorney.
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16. Miscellaneous.
16.1 This Agreement shall bind and inure to the benefit
of the parties hereto and their respective successors and assigns.
16.2 This Agreement shall be governed by, interpreted
under and construed and enforced in accordance with, the laws of the State of
New York.
16.3 The captions or article headings in this Agreement
are for convenience only and do not constitute part of this Agreement.
16.4 This Agreement has been fully negotiated by the
parties and rules of construction construing ambiguities against the party
responsible for drafting agreements shall not apply.
16.5 It is agreed that, except where otherwise expressly
provided in particular Articles or Sections of this Agreement, none of the
provisions of this Agreement shall survive the Closing.
16.6 This Agreement (including the Exhibits annexed
hereto) contains the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior understandings, if any, with
respect thereto.
16.7 This Agreement may not be modified, changed,
supplemented or terminated, nor may any obligations hereunder be waived,
except by written instrument signed by the party to be charged or by its agent
duly authorized in writing or as otherwise expressly permitted herein.
16.8 No waiver of any breach of any agreement or
provision herein contained shall be deemed a waiver of any preceding or
succeeding breach thereof or of any other agreement or provision herein
contained. No extension of the time for performance of any obligations or acts
shall be deemed an extension of the time for performance of any other
obligations or acts.
16.9 This Agreement may be executed in one or more
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which taken together shall constitute but one and the
same original.
16.10 Either party may cause this Agreement to be recorded
in the appropriate public office.
16.11 In the event of any action for breach of, to enforce
the provisions of, or otherwise involving this Agreement, the court in
such action shall award a reasonable sum as attorneys' fees to the party who,
in light of the issues litigated and the court's decisions on those issues,
was more successful in the action The more successful party shall not
necessarily be the party who recovers a judgment in the action.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
AMERICAN GOLF CORPORATION
By:_____________________
Name:
Title:
XXXXXXX'X ISLAND FAMILY
GOLF CENTERS, INC.
By:_____________________
Name:
Title:
DARLINGTON FAMILY GOLF
CENTERS, INC.
By:_____________________
Name:
Title:
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INDEX OF EXHIBITS AND SCHEDULES
EXHIBIT A XXXXXXX'X ISLAND LICENSE
EXHIBIT B DARLINGTON LICENSE
EXHIBIT C-1 XXXXXXX'X ISLAND PERSONAL PROPERTY
EXHIBIT C-2 DARLINGTON PERSONAL PROPERTY
EXHIBIT X-0 XXXXXXX'X XXXXXX XXXXXXXXX
XXXXXXX X-0 XXXXXXXXXX CONTRACTS
EXHIBIT E PERMITTED EXCEPTIONS
