CONTRIBUTION AND LEASEBACK AGREEMENT
dated as of January 23, 1998
by and between
OKEECHOBEE CHAMPIONSHIP GOLF, INC.,
as Transferor,
and
GOLF TRUST OF AMERICA, L.P., a Delaware Limited Partnership
Emerald Dunes
West Palm Beach, Florida
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS; RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Rules of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 2
PURCHASE AND CONTRIBUTION;
PAYMENT OF BASE PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1 Purchase and Contribution. . . . . . . . . . . . . . . . . . . . . . . . 8
2.2 Due Diligence Period . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3 Payment of Base Purchase Price . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 3
TRANSFEROR'S REPRESENTATIONS,
WARRANTIES AND COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.1 Organization and Power . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.2 Authorization and Execution. . . . . . . . . . . . . . . . . . . . . . . 13
3.3 Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.4 No Special Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.5 Compliance with Existing Laws. . . . . . . . . . . . . . . . . . . . . . 14
3.6 Real Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.7 Personal Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.8 Operating Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.9 Warranties and Guaranties. . . . . . . . . . . . . . . . . . . . . . . . 15
3.10 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.11 Condemnation Proceedings; Roadways . . . . . . . . . . . . . . . . . . . 15
3.12 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.13 Labor Disputes and Agreements. . . . . . . . . . . . . . . . . . . . . . 16
3.14 Financial Information. . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.15 Organizational Documents . . . . . . . . . . . . . . . . . . . . . . . . 17
3.16 Operation of Property. . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.17 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.18 Land Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.19 Public Offering; Preparation of S-11 . . . . . . . . . . . . . . . . . . 17
3.20 Hazardous Substances . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.21 Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.22 Curb Cuts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.23 Leased Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.24 Sufficiency of Certain Items . . . . . . . . . . . . . . . . . . . . . . 19
3.25 Accredited Investor. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 4
TRANSFEREE'S REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . . . . . . . . 19
4.1 Organization and Power . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.2 Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.3 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.4 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.5 Authorization and Execution. . . . . . . . . . . . . . . . . . . . . . . 20
4.6 Trade Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 5
CONDITIONS AND ADDITIONAL COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . 20
5.1 As to Transferee's Obligations . . . . . . . . . . . . . . . . . . . . . 20
5.2 As to Transferor's Obligations . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 6
CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.1 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.2 Transferor's Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . 23
6.3 Transferee's Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . 25
6.4 Mutual Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.5 Closing Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.6 Income and Expense Allocations . . . . . . . . . . . . . . . . . . . . . 26
6.7 Sales Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.8 Post-Closing Adjustments . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 7
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.1 Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.2 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.3 Real Estate Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.4 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.5 Liquor Licenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 8
LIABILITY OF TRANSFEREE; INDEMNIFICATION BY TRANSFEROR;
TERMINATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.1 Liability of Transferee. . . . . . . . . . . . . . . . . . . . . . . . . 30
8.2 Indemnification by Transferor. . . . . . . . . . . . . . . . . . . . . . 30
8.3 Termination by Transferee. . . . . . . . . . . . . . . . . . . . . . . . 30
8.4 Termination by Transferor. . . . . . . . . . . . . . . . . . . . . . . . 31
8.5 Termination by Transferor. . . . . . . . . . . . . . . . . . . . . . . . 31
ii
ARTICLE 9
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.1 Completeness; Modification . . . . . . . . . . . . . . . . . . . . . . . 32
9.2 Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.3 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.4 Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.8 Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.9 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.10 Incorporation by Reference . . . . . . . . . . . . . . . . . . . . . . . 33
9.11 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.12 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.13 No Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.14 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.15 Radon Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
EXHIBITS
Exhibit A-Legal Description of the Land
Exhibit B-Description of Improvements
Exhibit C-Tangible Personal Property
Exhibit D-Intangible Personal Property
Exhibit E-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
Exhibit N-Accredited Investor Questionnaire
Exhibit O-Transferor's Certificate
Exhibit P-Warranty Disclosure Schedule
Exhibit Q-1-Non-Qualified Stock Option Agreement (Xxxxxx X. Xxxxx, Xx.)
Exhibit Q-2-Non-Qualified Stock Option Agreement (Xxxxxx X. Xxxxx, III)
Exhibit R-Permitted Title Exceptions
iii
CONTRIBUTION AND LEASEBACK AGREEMENT
SUMMARY SHEET
Transferee: GOLF TRUST OF AMERICA, L.P., a Delaware Limited Partnership
Transferor: OKEECHOBEE CHAMPIONSHIP GOLF, INC.,
a Florida corporation
Date of
Agreement: _________ __, 1998
Golf Course: Emerald Dunes Golf Course
(address): 0000 Xxxxxxx Xxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx
Trade Name: Emerald Dunes Golf Course
Notice Address
of Transferor: 0000 Xxxxxxx Xxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
with a copy to: Cherry & Xxxxxxx, P.A.
The Forum
0000 Xxxx Xxxxx Xxxxx Xxxx., Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
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: Xxxxx X. Xxxxx, Esq.
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
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 Golf Course and related
improvements located on the real property more particularly described in EXHIBIT
A attached hereto (the "Land").
B. Subject to the terms of this Agreement, 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, Inventory, Restaurant
Supplies (as such terms are hereinafter defined), golf carts, 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"). 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 Property shall also indicate
those items of personal property, such as art and antiques, which are
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, 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, to the extent transferable, 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
2
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 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 Twenty-Two Million Four Hundred
Thousand Dollars ($22,400,000).
"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.
"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 and accounts receivable held by
Transferor prior to the Closing Date.
"DEED" shall mean a 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.
"DEPOSIT" shall mean the sum of Twenty-Five Thousand Dollars
($25,000), together with all accrued interest thereon, which shall be deposited
with Escrow Agent, and held by Escrow Agent pursuant to the terms of this
Agreement.
"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.,
California time, on the date hereof, and continuing through 5:00 p.m.,
California time, on the date that is thirty (30) days from the date hereof,
provided Transferee, at its sole election by written notice given to Transferor
prior to expiration of the Due Diligence Period, shall have the right to extend
the Due Diligence Period for up to thirty (30) days.
"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 and 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.
"GTA" shall mean Golf Trust of America, Inc., a Maryland Corporation.
"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).
5
"IMPROVEMENTS" shall have the meaning set forth in Recital B(1).
"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.
"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.
"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 set forth on EXHIBIT R hereto or 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.
"PRELIMINARY TITLE REPORT" shall have the meaning set forth in Section
2.2(d).
6
"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
Transferor and authorized to conduct a title insurance business in the State,
which the parties agree shall be Fidelity National Title Insurance Company.
"TITLE OBJECTIONS" shall have the meaning set forth in Section 2.2(d).
"TRANSFEROR'S KNOWLEDGE" shall mean the actual, and not the
constructive or imputed, knowledge of any person having an ownership interest in
the Transferor.
"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. No invasive inspection shall be performed without
Transferor's prior written consent (which consent shall not be unreasonably
withheld or delayed, but it shall be deemed reasonable for Transferor to
refuse to consent to any inspections which would be materially disruptive
to Transferor's business). Transferee shall give not less than twenty-four
(24) hours prior written notice to Transferor prior to any entry upon the
Property for the purpose of conducting such inspections, and such entry
shall be scheduled and coordinated with Transferor. At Transferor's
election, a representative of Transferor shall be present during any entry
by Transferee or Transferee's representative upon the Property for
conducting such inspections. Transferee shall not cause or permit any
mechanic's liens, materialmen's liens, or other liens to be filed against
the Property as a result of the inspections. Transferee shall repair and
restore any damage to the
8
Property caused by entry upon the Property by Transferee or Transferee's
representative. Transferee shall indemnify, defend, and hold harmless
Transferor and Transferor's officers, directors, shareholders, partners,
tenants, agents, and employees (collectively, the "Indemnified Parties"),
from and against any and all actions, losses, costs, damages, claims,
liabilities, and expenses (including court costs and reasonable attorneys'
fees) brought, sought, or incurred by or against any of the Indemnified
Parties resulting from, arising out of, or relating to, entry upon the
Property or Improvements by Transferee or any of the other Transferee's
representatives. Notwithstanding anything to the contrary hereof, the
foregoing indemnification and repair and restoration obligations shall
expressly survive the termination of this Agreement. 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.
(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 fifteen (15) days from the date hereof, Transferor shall
deliver to Transferee a modified ALTA/ACSM survey 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
9
the Land and that the Improvements located upon the Land do not encroach
upon any other property, except for minor encroachments of the golf cart
paths serving the Property on to the adjacent 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. The
matters described on EXHIBIT R shall not be included as 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 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 and other indebtedness scheduled and set forth in
EXHIBIT M attached hereto (the "Mortgage Indebtedness") which Transferee
shall take subject to as provided in Section 2.3(b). 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
10
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.
(g) Transferor shall have received the written approval of Pacific
Mutual Insurance Company ("Pacific Mutual") for Transferee to assume (or
take subject to, if approved by Pacific Mutual and Transferor) the Mortgage
Indebtedness held by Pacific Mutual.
2.3 PAYMENT OF BASE PURCHASE PRICE. The Base Purchase Price shall be
paid to Transferor in the following manner:
(a) Within two (2) Business Days following execution of this
Agreement, Transferee shall deliver the Deposit to Escrow Agent. The
Deposit shall be placed in an interest-bearing account in the name of
Escrow Agent. The Deposit shall be tendered to Transferor or Transferee in
accordance with the terms of this Agreement. Escrow Agent has agreed to
act as escrow agent for the convenience of the Transferee and Transferor
without fee or other charges for such service. Escrow Agent shall not be
liable for: (i) any acts taken in good faith but only for its intentional
misconduct or gross negligence; (ii) any loss or impairment of funds in the
course of collection or on deposit in a financial institution arising out
of failure, insolvency or suspension of such financial institution; (iii)
expiration of any time limit or other consequence of delay unless a
properly executed written instruction, accepted by Escrow Agent, has
instructed
11
Escrow Agent to comply with such time limit; (iv) default, error, action or
omission of any party to the Agreement; (v) compliance with any legal
process, subpoena, writ, order, judgment or decree, whether issued with or
without jurisdiction and whether subsequently vacated, modified, set aside
or reversed; (vi) any legal effect, insufficiency or undesirability of any
instrument deposited with or delivered by Escrow Agent or exchanged by the
parties to this Agreement whether or not Escrow Agent prepared such
instrument; or (vii) any default, error, action or omission of any party to
this Agreement. Escrow Agent may rely upon the written notices,
communications, orders or instructions given by any party or reasonably
believed by it to be genuine. The parties will indemnify and hold Escrow
Agent harmless against any matters directly or indirectly related to the
Deposit, including, without limitation, attorneys' fees. Notwithstanding
anything to the contrary in this Agreement, if prior to Closing either
party makes a demand upon Escrow Agent for the Deposit, Escrow Agent shall
give notice to the other party of such demand. Should Escrow Agent not
receive an objection from the non-demanding party to the proposed payment
within 10 days after such notice, Escrow Agent is authorized to make
payment to the demanding party; if an objection is received within such
10-day period or if for any other reason Escrow Agent is in good faith
uncertain about its responsibilities, it shall continue to hold the Deposit
until otherwise directed by written instructions from Seller and Buyer or
by final judgment of a court of competent jurisdiction. In the event of
any dispute, Escrow Agent may at any time deposit the Deposit with the
Clerk of the Court of the County in which the Property is located and be
relieved and discharged of all obligations under this Agreement.
Transferee acknowledges that Cherry & Xxxxxxx, P.A. is acting as Escrow
Agent and is counsel to Transferor. In the event of any dispute between
Transferor and Transferee, Cherry & Xxxxxxx, P.A. shall be permitted to
continue to represent Transferor in such dispute, including, without
limitation, any litigation over payment of the Deposit.
(b) Transferee shall (i) assume (or take subject to, if approved by
Pacific Mutual and Transferor) 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 the outstanding
principal amount, together with accrued interest thereon, as of the Closing
Date, as evidenced by (A) estoppel letters (or other evidence acceptable to
Transferee, in its sole discretion) from the holders of the indebtedness
described in EXHIBIT M (other than Pacific Mutual); and (B) an estoppel
letter from Pacific Mutual in form and substance satisfactory to Transferee
and Title Company.
(c) Transferee shall pay in cash (including an application of the
Deposit) 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
12
Diligence Period, which schedule shall be subject to Transferee's review
and approval, which approval shall not be unreasonably withheld.
(d) Transferee shall pay the balance of the Base Purchase Price to
Transferor in Owner's Shares. The number of Owner's Shares required for
such payment shall be the quotient obtained by dividing the balance of the
Base Purchase Price by the lesser of (i) $27.00; or (ii) the average
closing price for the common stock of GTA, Inc. for the five (5) day period
prior to Closing.
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.
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. Other than Pacific
Mutual, 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
(excluding the Mortgage Indebtedness), 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
13
contribute or has granted an option or right of first refusal to purchase the
Property or any part thereof. Other than the rights of third parties pursuant
to that certain Warranty Deed from Xxxxx Electronics, Inc. to Transferor
recorded on October 2, 1996 in O.R. Book 9467, Page 456, in the Public Records
of Palm Beach County, Florida, 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).
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 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, except for minor encroachments of the golf cart paths serving the
Property on to adjacent land, (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
14
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, other than the Mortgage Indebtedness,
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 to the extent of approvals necessary to transfer any of the
leased property.
3.8 OPERATING AGREEMENTS. Except as set forth on EXHIBIT I, each of
the Operating Agreements, a copy of each of which has been provided to
Transferee) 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.
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 future premiums 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.
15
3.11 CONDEMNATION PROCEEDINGS; ROADWAYS. Except with respect to a
possible relocation of an access road to the Property (which shall be done at no
cost to Transferor), Transferor has received no notice of any condemnation or
eminent domain proceeding pending or threatened against the Property or any part
thereof. Except for such possible relocation, 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 disputes
pending or, to the best of Transferor's knowledge, threatened as to the
operation or maintenance of the Property or any part 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.
16
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 intentionally 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 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 including the sale of alcoholic beverages
pursuant to a validly issued liquor license) 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-
17
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; (iii) 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 facts or circumstances that could reasonably be expected to
give rise to a material non-compliance with Environmental Laws, material
environmental liability or material Environmental Claim.
3.21 UTILITIES. To Transferor's knowledge, 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. To Transferor's knowledge, 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. To Transferor's knowledge, 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
18
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. In the event Transferee determines that there is a
breach of any representation, warranty or covenant of Transferor prior to
Closing, Transferee's sole remedy shall be to terminate this Agreement and
receive a return of the Deposit. No breach of any representation, warranty or
covenant of Transferor shall be actionable following closing if Transferee
obtained actual knowledge of such breach prior to Closing but nevertheless
elected to close. 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.
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.
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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
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, in all material respects, 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
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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 a
commitment to issue 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 the Mortgage
Indebtedness and the 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
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, 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, shall have cooperated with each other,
and each shall have executed such transfer forms, license applications and
other documents as may be
21
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 GTA, Inc. of the transaction contemplated by this Agreement by
an affirmative vote prior to the expiration of the Due Diligence Period.
(k) STOCK OPTION AWARD AGREEMENT. Transferor shall have delivered to
Transferee for the benefit of Xxxxxx X. Xxxxx, Xx. and Xxxxxx Xxxxx III a
copy of the Stock Option Award Agreement (the "Stock Option Award
Agreement") attached hereto as EXHIBIT Q with respect to an aggregate of
100,000 shares of Common Stock of GTA.
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, in all material respects, 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.
(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.
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(d) STOCK OPTION AWARD AGREEMENT. Transferor shall have delivered to
GTA a countersigned copy of the Stock Option Award Agreement.
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 on a date that is ten (10) days
after the expiration of the Due Diligence Period at a time and location mutually
acceptable to Transferor and Transferee. 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) The Partnership Agreement.
(e) The Golf Course Lease.
(f) Evidence of title acceptable to Transferee for any vehicle owned
by Transferor and used in connection with the Property.
(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.
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(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 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.
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(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 Beneficiary Statement prepared by any holder of Mortgage
Indebtedness setting forth the amount, including outstanding Principal and
accrued interest, and any other amounts outstanding, with respect to the
Mortgage Indebtedness.
(v) Consent to the Transferee's assumption of (or taking subject to,
if approved by Pacific Mutual and Transferor) the Mortgage Indebtedness executed
by Pacific Mutual.
(w) 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.
(x) 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 by federal funds wire
to an account designated by Transferor.
(b) The non-cash portion of the Base Purchase Price payable in
Owner's Shares issued to such holders and in such denominations to such
holders as specified by Transferor.
(c) Documentation, in form and substance reasonably approved by
Transferor and Pacific Mutual, reflecting Transferee's assumption of the
Pacific Mutual Mortgage Indebtedness (or Transferee taking subject to such
mortgage if approved by Pacific Mutual and Transferor).
(d) 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:
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(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
transfer or issue of any liquor licenses or alcoholic beverage licenses or
permits for the Property, to the extent not theretofore executed and
delivered.
(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, 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 pay for the cost of any assumption fees, documentary stamp taxes and other
incidental closing costs payable in connection with the Transferee assuming (or
taking subject to, if Pacific Mutual and Transferor approve) the Mortgage
Indebtedness in favor of Pacific Mutual. 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)
26
the Base Purchase Price payable by Transferee. Without limiting the generality
of the foregoing, the following items of income and expense shall be prorated at
Closing:
(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.
(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
27
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. In the event that
damage or destruction of the Property, or any part thereof, by fire or other
casualty occurs prior to Closing which is in excess of Three Hundred Thousand
Dollars ($300,000) Transferee shall, within ten (10) days after receipt from
Transferor of written notice of the occurrence of such damage or destruction
elect, in writing, at its option, one of the following:
(a To terminate this Agreement, in which event each party shall
be released from all obligations hereunder, and the Deposit shall immediately be
returned to Transferee;
(b To accept from Transferor the assignment of any insurance
proceeds payable by reason of such damage or destruction and proceed with
Closing.
In the event that damage or destruction occurs prior to Closing which is less
than Three Hundred Thousand Dollars ($300,000), then Transferor shall (i) assign
to Transferee any insurance proceeds payable by reason of such damage or
destruction, and (ii) give Transferee a credit against the Purchase Price in the
amount of any deductible in connection with such insurance, and Transferee and
Transferor shall proceed with Closing.
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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. Transferor 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 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.
7.5 LIQUOR LICENSES. Transferor shall transfer or cause to be
transferred to Transferee or, at Transferee's discretion, Transferee's nominee
(which may include the lessee under the Golf Course Lease), all liquor licenses
and alcoholic beverage licenses, if any, necessary to operate the restaurant,
bars, snack bars and lounges
29
presently located within the Property, if any. To that end, Transferor and
Transferee, or Transferee's nominee, shall cooperate each with the other, and
each shall execute such transfer forms, license applications and other documents
as may be necessary to effect such transfer. If permitted under the laws of the
jurisdiction in which the Property is located, the parties shall execute and
file all necessary transfer forms, applications and papers with the appropriate
liquor and alcoholic beverage authorities prior to Closing, to the end that the
transfer shall take effect, if possible, on the Closing Date, simultaneously
with Closing. If not so permitted, then the parties agree each with the other
that they will promptly execute all transfer forms, applications and other
documents required by the liquor authorities in order to effect such transfer at
the earliest date in time possible consistent with the laws of the State in
order that all liquor licenses may be transferred from Transferor to Transferee,
or Transferee's nominee, at the earliest possible time. If under the laws of
the State such licenses cannot be transferred until after the Closing of the
transaction contemplated hereby, then Transferor covenants and agrees that
Transferor will cooperate with Transferee, or Transferee's nominee, in keeping
open the bars and liquor facilities of the Property between the Closing Date and
the time when such liquor license transfers actually become effective, by
exercising management and supervision of such facilities until such time under
Transferor's licenses, provided, however, that Transferee shall indemnify and
hold Transferor harmless from any liability, damages or claims encountered in
connection with such operations during said period of time, except for
Transferor's gross negligence or willful misconduct.
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, 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
30
elect either (a) to terminate this Agreement and all other rights and
obligations of Transferor and Transferee hereunder shall terminate immediately,
or (b) to waive its right to terminate (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.
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 except as provided in Section 8.5, or (b) to waive its
right to terminate, and instead, to proceed to Closing.
8.5 TERMINATION BY TRANSFEROR. IN THE EVENT THAT THIS TRANSACTION
DOES NOT CLOSE AS A CONSEQUENCE OF A DEFAULT BY TRANSFEREE, TRANSFEROR MAY
TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO TRANSFEREE, AND TRANSFEREE SHALL
PAY TO TRANSFEROR, AS LIQUIDATED DAMAGES, THE DEPOSIT AND EACH PARTY'S
OBLIGATIONS AND LIABILITIES UNDER THIS AGREEMENT SHALL TERMINATE. THE PARTIES
AGREE THAT (A) TRANSFEROR'S ACTUAL DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO
DETERMINE IF TRANSFEREE DEFAULTS, (B) THE DEPOSIT IS THE BEST ESTIMATE OF THE
AMOUNT OF DAMAGES TRANSFEROR WOULD SUFFER, AND (C) THE PAYMENT OF THE DEPOSIT TO
TRANSFEROR AS LIQUIDATED DAMAGES IS NOT A PENALTY. THE DEPOSIT SHALL BE THE
AMOUNT THAT TRANSFEROR IS ENTITLED TO RECEIVE AS LIQUIDATED DAMAGES; AND
TRANSFEROR SHALL HAVE NO RIGHT, AND HEREBY WAIVES THE RIGHT, TO AN ACTION FOR
SPECIFIC PERFORMANCE OF THIS AGREEMENT OR ANY OTHER REMEDY AVAILABLE AT LAW OR
IN EQUITY. THE PARTIES WITNESS THEIR AGREEMENT TO THIS LIQUIDATED DAMAGES
PROVISION AND TRANSFEROR'S WAIVER OF SPECIFIC PERFORMANCE BY INITIALING THIS
SECTION BELOW.
Transferor: /s/ [ILLEGIBLE] Transferee: /s/ [ILLEGIBLE]
------------------- -------------------
8.6 COSTS AND ATTORNEYS' FEES. In the event of any litigation or
dispute between the parties arising out of or in any way connected with this
Agreement, resulting in any litigation, arbitration or other form of dispute
resolution, then the prevailing party in such litigation shall be entitled to
recover its costs of prosecuting and/or defending same, including, without
limitation, reasonable attorneys' fees at trial and all appellate levels.
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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 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
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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 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 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; provided, Transferor shall have the right to provide such
information to its consultants and advisors.
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9.15 RADON DISCLOSURE. In accordance with Section 404.056(7) of
Florida Statutes, Transferee is advised that radon is a naturally occurring
radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon testing
may be obtained from the county public health unit. The foregoing disclosure is
provided to comply with state law and is for informational purposes only.
Transferor represents that it has not conducted radon testing with respect to
the Property, is not aware of any specific radon problems at the Property and
specifically disclaims any and all representations and warranties as to the
absence of radon gas or radon producing conditions in connection with any
building and the Property.
IN WITNESS WHEREOF, Transferor and Transferee have hereunder affixed
their signatures to this Contribution and Leaseback Agreement, all as of the
23rd day of January, 1998.
"TRANSFEREE"
GOLF TRUST OF AMERICA, L.P.,
A DELAWARE LIMITED PARTNERSHIP
By: GTA GP, Inc., a Maryland corporation
Its: General Partner
By: /s/ W. Xxxxxxx Xxxxx
--------------------------
Its: President and CEO
--------------------------
"TRANSFEROR"
OKEECHOBEE CHAMPIONSHIP GOLF, INC.,
A FLORIDA CORPORATION
By: /s/ Xxxxxx X. Xxxxx, III
--------------------------
Its: President
--------------------------
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