CONTRIBUTION AND LEASEBACK AGREEMENT
dated as of October 17, 1997
by and between
PROPERTIES OF THE COUNTRY, INC.
a Kansas corporation
and
GOLF TRUST OF AMERICA, L.P., a Delaware Limited Partnership
The Club of the Country
Louisburg, Kansas
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 PURCHASE PRICE . . . . . 8
2.1 Purchase and Contribution. . . . . . . . . . . . . . . 8
2.2 Due Diligence Period . . . . . . . . . . . . . . . . . 8
2.3 Payment of Base Purchase Price . . . . . . . . . . . . 10
ARTICLE 3 TRANSFEROR'S REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . 11
3.1 Organization and Power . . . . . . . . . . . . . . . . 11
3.2 Authorization and Execution. . . . . . . . . . . . . . 11
3.3 Noncontravention . . . . . . . . . . . . . . . . . . . 11
3.4 No Special Taxes . . . . . . . . . . . . . . . . . . . 12
3.5 Compliance with Existing Laws. . . . . . . . . . . . . 12
3.6 Real Property. . . . . . . . . . . . . . . . . . . . . 12
3.7 Personal Property. . . . . . . . . . . . . . . . . . . 12
3.8 Operating Agreements . . . . . . . . . . . . . . . . . 13
3.9 Warranties and Guaranties. . . . . . . . . . . . . . . 13
3.10 Insurance. . . . . . . . . . . . . . . . . . . . . . . 13
3.11 Condemnation Proceedings; Roadways . . . . . . . . . . 13
3.12 Litigation . . . . . . . . . . . . . . . . . . . . . . 14
3.13 Labor Disputes and Agreements. . . . . . . . . . . . . 14
3.14 Financial Information. . . . . . . . . . . . . . . . . 14
3.15 Organizational Documents . . . . . . . . . . . . . . . 14
3.16 Operation of Property. . . . . . . . . . . . . . . . . 14
3.17 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . 15
3.18 Land Use . . . . . . . . . . . . . . . . . . . . . . . 15
3.19 Public Offering; Preparation of S-11 . . . . . . . . . 15
3.20 Hazardous Substances . . . . . . . . . . . . . . . . . 16
3.21 Utilities. . . . . . . . . . . . . . . . . . . . . . . 16
3.22 Curb Cuts. . . . . . . . . . . . . . . . . . . . . . . 16
3.23 Leased Property. . . . . . . . . . . . . . . . . . . . 16
3.24 Sufficiency of Certain Items . . . . . . . . . . . . . 16
3.25 Accredited Investor. . . . . . . . . . . . . . . . . . 16
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ARTICLE 4 TRANSFEREE'S REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . 17
4.1 Organization and Power . . . . . . . . . . . . . . . . 17
4.2 Noncontravention . . . . . . . . . . . . . . . . . . . 17
4.3 Litigation . . . . . . . . . . . . . . . . . . . . . . 17
4.4 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . 18
4.5 Authorization and Execution. . . . . . . . . . . . . . 18
4.6 Trade Name . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 5 CONDITIONS AND ADDITIONAL COVENANTS. . . . . . . . . . . . . . 18
5.1 As to Transferee's Obligations . . . . . . . . . . . . 18
5.2 As to Transferor's Obligations . . . . . . . . . . . . 20
ARTICLE 6 CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.1 Closing. . . . . . . . . . . . . . . . . . . . . . . . 20
6.2 Transferor's Deliveries. . . . . . . . . . . . . . . . 21
6.3 Transferee's Deliveries. . . . . . . . . . . . . . . . 23
6.4 Mutual Deliveries. . . . . . . . . . . . . . . . . . . 23
6.5 Closing Costs. . . . . . . . . . . . . . . . . . . . . 23
6.6 Income and Expense Allocations . . . . . . . . . . . . 24
6.7 Sales Taxes. . . . . . . . . . . . . . . . . . . . . . 24
6.8 Post-Closing Adjustments . . . . . . . . . . . . . . . 25
ARTICLE 7 GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 25
7.1 Condemnation . . . . . . . . . . . . . . . . . . . . . 25
7.2 Risk of Loss . . . . . . . . . . . . . . . . . . . . . 25
7.3 Real Estate Broker . . . . . . . . . . . . . . . . . . 25
7.4 Confidentiality. . . . . . . . . . . . . . . . . . . . 26
ARTICLE 8 LIABILITY OF TRANSFEREE; INDEMNIFICATION BY TRANSFEROR; TERMINATION
RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.1 Liability of Transferee. . . . . . . . . . . . . . . . 26
8.2 Indemnification by Transferor. . . . . . . . . . . . . 27
8.3 Termination by Transferee. . . . . . . . . . . . . . . 27
8.4 Termination by Transferor. . . . . . . . . . . . . . . 27
8.5 Costs and Attorneys' Fees. . . . . . . . . . . . . . . 27
ARTICLE 9 MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . 28
9.1 Completeness; Modification . . . . . . . . . . . . . . 28
9.2 Assignments. . . . . . . . . . . . . . . . . . . . . . 28
9.3 Successors and Assigns . . . . . . . . . . . . . . . . 28
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9.4 Days . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.5 Governing Law. . . . . . . . . . . . . . . . . . . . . 28
9.6 Counterparts . . . . . . . . . . . . . . . . . . . . . 28
9.7 Severability . . . . . . . . . . . . . . . . . . . . . 28
9.8 Costs. . . . . . . . . . . . . . . . . . . . . . . . . 28
9.9 Notices. . . . . . . . . . . . . . . . . . . . . . . . 29
9.10 Incorporation by Reference . . . . . . . . . . . . . . 29
9.11 Survival . . . . . . . . . . . . . . . . . . . . . . . 29
9.12 Further Assurances . . . . . . . . . . . . . . . . . . 29
9.13 No Partnership . . . . . . . . . . . . . . . . . . . . 29
9.14 Confidentiality. . . . . . . . . . . . . . . . . . . . 29
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-Transferee's Certificate
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CONTRIBUTION AND LEASEBACK AGREEMENT
SUMMARY SHEET
Transferee: GOLF TRUST OF AMERICA, L.P., a Delaware Limited Partnership
Transferor: PROPERTIES OF THE COUNTRY, INC., a Kansas corporation
Date of
Agreement: October 17, 1997
Golf Course: The Club of the Country
(address): 0000 Xxxx 000xx Xxxxxx
Xxxxxxxxx, Xxxxxx 00000
Trade Name: The Club of the Country
Notice Address
of Transferor: Properties of the Country, Inc.
X.X. Xxx 0000
Xxxxxxx Xxxxxxx, Xxxxxx 00000
with a copy to: Xxxxxx X. Xxxxxx, Esq.
Xxxxxxxx, Xxxxxxx & Xxxxxx, P.C.
Twelve Wyandotte Plaza
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Notice Address
of Transferee: Xxxxx X. Xxxxxx
Golf Trust of America, Inc.
00 X. Xxxxx'x Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
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with a copy to: Xxxxx X. Xxxxx, Esq.
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
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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, machinery, equipment,
furniture, furnishings, movable walls or partitions, phone systems and
other control systems, restaurant equipment, computers or trade fixtures,
golf course operation and maintenance equipment, including mowers,
tractors, aerators, sprinklers, sprinkler and irrigation facilities and
equipment, valves or rotors, driving range equipment, athletic training
equipment, office equipment or machines, other decorations, and equipment
or machinery of every kind or nature located on or used in connection with
the operation of the Real Property whether on or off-site, including all
warranties and guaranties associated therewith (the "Tangible Personal
Property"), excluding all golf carts, whether owned or leased, which shall
be retained by Transferor. A schedule of the Tangible Personal Property is
attached to this Agreement as EXHIBIT C, indicating whether such Tangible
Personal Property is owned or leased. The schedule of Tangible Personal
Property shall also indicate
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those items of personal property, such as art and antiques, which is
excluded from the personal property being conveyed hereby.
4. All intangible personal property owned or possessed by Transferor
and used in connection with the ownership, operation, leasing or
maintenance of the Real Property or the Tangible Personal Property, all
goodwill attributed to the Property, and any and all trademarks and
copyrights, guarantees, Authorizations (as hereinafter defined), general
intangibles, business records, plans and specifications, surveys and title
insurance policies pertaining to the Property, all licenses, permits and
approvals with respect to the construction, ownership, operation or
maintenance of the Property, any unpaid award for taking by condemnation or
any damage to the Real Property by reason of a change of grade or location
of or access to any street or highway, excluding (a) any of the aforesaid
rights that Transferee elects not to acquire and (b) the Current Assets, as
hereinafter defined (collectively, the "Intangible Personal Property"). A
schedule of the Intangible Personal Property is attached to this Agreement
as EXHIBIT D. The Intangible Personal Property shall not include the right
to use the Trade Name, which shall be retained by Transferor and
transferred to the lessee of the Golf Course (and further provided in no
event shall Transferee have the right to use such trade name in connection
with any other property owned by Transferee or any affiliate 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 (hereinafter defined) of
Transferor pursuant to a lease (the "Golf Course Lease"), substantially in the
form attached hereto as EXHIBIT E.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
undertakings of the parties hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, it is agreed:
ARTICLE 1
DEFINITIONS; RULES OF CONSTRUCTION
1.1 DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meanings set forth on the Summary Sheet. The following terms shall
have the indicated meanings:
"ACT OF BANKRUPTCY" shall mean if a party hereto or any general
partner thereof shall (a) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its Property, (b) admit in writing its
inability to pay its debts as they become due, (c) make
2
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" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person.
"AUTHORIZATIONS" shall mean all licenses, permits and approvals
required by any governmental or quasi-governmental agency, body or officer for
the ownership, operation and use of the Property or any part thereof as a golf
course with the existing uses and operations, including clubhouse, bar and
related facilities, as applicable.
"BASE PURCHASE PRICE" shall mean Three Million Fifty Thousand Dollars
($3,050,000).
"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.
"CLOSING STATEMENTS" shall have the meaning set forth in Section
6.4(a).
3
"CONTINGENT PURCHASE PRICE" shall mean the amount as calculated by the
procedure set forth in EXHIBIT K attached hereto.
"CURRENT ASSETS" shall mean cash, accounts receivable, Inventory and
Restaurant Supplies (each as hereinafter defined) held by Transferor prior to
the Closing Date.
"DEED" shall mean a grant deed or special warranty deed, substantially
in the form of EXHIBIT G attached hereto (or lease assignment, if the Property
is owned by Transferor pursuant to a ground lease), in form and substance
satisfactory to Transferee, conveying the title of Transferor to the Real
Property, with such grant or warranty covenants of title from Transferor to
Transferee as are customary in the state in which the Property is located,
subject only to Permitted Title Exceptions. If there is any difference between
the description of the Land, as shown on EXHIBIT A attached hereto and the
description of the Land as shown on the Survey, the description of the Land to
be contained in the Deed and the description of the Land set forth in the
Owner's Title Policy, as defined herein, shall conform to the description shown
on the Survey.
"DISCLOSURE SCHEDULE" shall have the meaning set forth in Section
2.2(e).
"DUE DILIGENCE PERIOD" shall mean the period commencing at 9:00 a.m.,
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.
"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.
"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
4
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.
"HAZARDOUS SUBSTANCES" shall mean any substance, material, waste, gas
or particulate matter which is regulated by any local, state of federal
governmental authority, including but not limited to any material or substance
which is (i) defined as a "hazardous waste", "hazardous material", or
"restricted hazardous waste" or words of similar import under any provision of
any Environmental Law; (ii) petroleum or petroleum products; (iii) asbestos;
(iv) polychlorinated biphenyl; (v) radioactive material; (vi) radon gas; (vii)
designated as a "hazardous substance" pursuant to Section 311 of the Clean Water
Act, 33 U.S.C. Section 1251, et seq. (42 U.S.C. Section 1317); (viii) defined as
a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903); or (ix)
defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601,
et seq. (42 U.S.C. Section 9601).
"IMPROVEMENTS" shall have the meaning set forth in Recital B(1).
"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.
5
"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 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).
"PROPERTY" shall have the meaning set forth in Recital B(4).
"PURCHASE PRICE" shall mean the sum of the Base Purchase Price and the
Contingent Purchase Price.
"REAL PROPERTY" shall have the meaning set forth in Recital B(2).
6
"RESTAURANT SUPPLIES" shall mean the consumable goods, supplies
(including beverages) and all silverware, glassware, napkins, tablecloths, paper
goods and related goods necessary to efficiently operate the restaurant, bar,
lounge or snack shop located upon or within the Improvements.
"SEC" shall mean the United States Securities and Exchange Commission.
"SECURITIES" shall have the meaning set forth in Section 7.4.
"STATE" shall mean the state or commonwealth in which the Property is
located.
"SUMMARY SHEET" shall mean the summary page attached to this Agreement
and incorporated herein by reference.
"SURVEY" shall mean the survey prepared pursuant to Section 2.2(c).
"TANGIBLE PERSONAL PROPERTY" shall have the meaning set forth in
Recital B (3).
"TITLE COMPANY" shall mean a title insurance company selected by
Transferee and authorized to conduct a title insurance business in the State.
"TITLE OBJECTIONS" shall have the meaning set forth in Section 2.2(d).
"TRANSFEROR'S ORGANIZATIONAL DOCUMENTS" shall mean the current
organizational documents of Transferor.
"UTILITIES" shall mean public sanitary and storm sewers, natural gas,
telephone, public water facilities, electrical facilities and all other utility
facilities and services necessary for the operation and occupancy of the
Property.
"WARN ACT" shall mean the Worker Adjustment Retraining and
Notification Act, as amended.
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.
7
(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 PURCHASE PRICE
2.1 PURCHASE AND CONTRIBUTION. Transferor agrees to contribute and
Transferee agrees to acquire the Property for the Purchase Price.
2.2 DUE DILIGENCE PERIOD.
(a) Transferee shall have the right, during the Due Diligence
Period, and thereafter if Transferee notifies Transferor that Transferee
has elected to proceed to Closing in the manner described below, to enter
upon the Real Property and to perform, at Transferor's expense, such
surveying, engineering, and environmental studies and investigations as
Transferee may deem appropriate. If such tests, studies and investigations
warrant, in Transferee's sole, absolute and unreviewable discretion, the
purchase of the Property for the purposes contemplated by Transferee, then
Transferee may elect to proceed to Closing and shall so notify Transferor
and the Escrow Agent, in writing, prior to the expiration of the Due
Diligence Period. If for any reason Transferee does not so notify
Transferor and Escrow Agent of its determination to proceed to Closing
prior to the expiration of the Due Diligence Period, or if Transferee
notifies Transferor and Escrow Agent, in writing, prior to the expiration
of the Due Diligence Period that it has determined not to proceed to
Closing, this Agreement automatically shall terminate and Transferee and
Escrow Agent shall be released from any further liability or obligation
under this Agreement and, if requested by Transferor, Transferee will
deliver such reports and materials to Transferor.
(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.
8
(c) Within thirty (30) days from the date hereof, if requested by
Transferee, Transferor shall deliver to Transferee an ALTA/ACSM survey or a
boundary survey, as reasonably required by Transferee, of the Land and the
Improvements, prepared by a surveyor licensed to practice as such in the
State, bearing a date not earlier than sixty (60) days from the date of its
delivery and certified to both Transferee, Transferor and the Title Company
(and any lender or other party designated by Transferee), showing the legal
description of the Land, all dimensions thereof, and showing the location
of Improvements on the Land and the setbacks thereof from the property
line, as well as the setbacks required by applicable zoning laws or
regulations (the "Survey"). The Survey shall locate all easements which
serve and affect the Land. The Survey shall reflect that no buildings or
improvements located on any other property encroach upon the Land and that
the Improvements located upon the Land do not encroach upon any other
property. The surveyor preparing the Survey shall certify that (i) the
Survey is an accurate Survey of the Land and the Improvements, (ii) that
the Survey was made under the surveyor's supervision, (iii) that the Survey
meets (a) the requirements of the Title Company for the issuance of the
Owner's Title Policy free of any general survey exception, and (b) the
minimum technical standards for land boundary surveys with improvements,
set forth by applicable statutes or applicable professional organizations,
and (iv) all buildings and other structures and their relation to the
property lines are shown and that there are no encroachments, overlaps,
boundary line disputes, easements, or claims of easements visible on the
ground, other than those shown on the Survey. If Transferee has any
objection to Survey matters, the same shall be treated for all purposes as
Title Objections within the provisions of this Agreement.
(d) Transferor agrees to provide to Transferee, within five (5)
business days following the date of this Agreement, a copy of any existing
title insurance policies which Transferor may have in its possession or
control covering the Real Property, together with legible copies of all
exception documents referred to therein. During the Due Diligence Period,
Transferee, at its expense, shall cause an examination of title to the
Property to be made and a preliminary title report to be issued (the
"Preliminary Title Report"), and, prior to the expiration of the Due
Diligence Period, shall notify Transferor of any defects in title shown by
such examination that Transferee is unwilling to accept by delivering a pro
forma copy of the Preliminary Title Report that reflects such unacceptable
defects in title, which shall be designated as the Title Objections.
Within ten (10) days after such notification, Transferor shall notify
Transferee whether Transferor is willing to cure such defects. If
Transferor is willing to cure such defects, Transferor shall act promptly
and diligently to cure such defects at its expense. If any of such defects
consist of mortgages, deeds of trust, construction or mechanics' liens, tax
liens or other liens or charges in a fixed sum or capable of computation as
a fixed sum, then, to that extent, and notwithstanding the foregoing,
Transferor shall be obligated to pay and discharge such defects at Closing,
except for the mortgages scheduled and set forth in EXHIBIT M attached
hereto (the "Mortgage Indebtedness") which Transferee shall take subject to
as provided in Section
9
2.3(a). For such purposes, Transferor may use all or a portion of the cash
to close. If Transferor is unable to cure such defects by Closing, after
having attempted to do so diligently and in good faith, Transferee shall
elect (1) to waive such defects and proceed to Closing without any
abatement in the Purchase Price, or (2) to terminate this Agreement.
Transferor shall not, after the date of this Agreement, subject the
Property to any liens, encumbrances, leases, covenants, conditions,
restrictions, easements or other title matters or seek any zoning changes
or take any other action which may affect or modify the status of title
without Transferee's prior written consent. All title matters revealed by
Transferee's title examination and not objected to by Transferee as
provided above shall be deemed Permitted Title Exceptions. If Transferee
shall fail to examine title and notify Transferor of any such Title
Objections by the end of the Due Diligence Period, all such title
exceptions (other than those rendering title unmarketable and those that
are to be paid at Closing as provided above) shall be deemed Permitted
Title Exceptions. Notwithstanding the foregoing, Transferee shall not be
required to take title to the Property subject to any matters which may
arise subsequent to the effective date of its examination of title to the
Property made during the Due Diligence Period.
(e) Transferor shall deliver to Transferee within fourteen (14)
days after the date of the execution of this Agreement by Transferor and
Transferee a disclosure schedule that accurately and completely identifies
and describes (a) all Employment Agreements (including name of employee,
social security number, wage or salary, accrued vacation benefits, other
fringe benefits, etc.), and (b) an updated Golf Club membership list,
setting forth the names of the members of the Golf Club, the length of
their membership, the payment obligations of the members and a summary of
the terms of the memberships (the "Disclosure Schedule").
(f) Transferor shall deliver to Transferee within thirty (30) days
after the date of execution of this Agreement by Transferor and Transferee
current searches of all Uniform Commercial Code financing statements filed
with the Secretary of State of the State respecting Transferor, together
with searches for pending litigation, tax liens and bankruptcy filings in
all appropriate jurisdictions.
2.3 PAYMENT OF BASE PURCHASE PRICE. The Base Purchase Price shall
be paid to Transferor in the following manner:
(a) Transferee shall (i) take subject to the Mortgage Indebtedness
in an aggregate amount not in excess of the Base Purchase Price and (ii)
receive a credit against the Base Purchase Price in an amount equal to a
sum necessary to pay off in full the Mortgage Indebtedness, including any
prepayment premium, and to obtain a release of such deeds of trust or
mortgages evidencing the Mortgage Indebtedness as of the Closing Date, as
evidenced by a payoff letter from the beneficiary of each such deed of
trust or mortgage in form and substance satisfactory to Transferee and the
Title Company.
10
(b) Transferee shall pay the sum of Five Hundred Thousand Dollars
($500,000) in Owner's Shares. The number of Owner's Shares required for
such payment shall be the quotient obtained by dividing Five Hundred
Thousand Dollars ($500,000) by Twenty Six Dollars ($26) (the average of the
closing price of the common stock of Golf Trust of America, Inc. for the
five (5) day period prior to Closing).
(c) Transferee shall hold back the sum of Seventy-Five Thousand
Dollars ($75,000), which shall be credited against the Base Purchase Price,
and which shall be retained by Transferee pursuant to Section 5.6 of the
Golf Course Lease.
(d) Transferee shall pay the balance of the Base Purchase Price to
Transferor in cash, which shall include any amounts necessary to pay for
certain tax liabilities of Transferor and the cost incurred by Transferor
in connection with the preparation of certain audited financial statements,
due diligence costs and closing costs and to permit the liquidation of
certain third party-interests in Transferor, as set forth in a schedule to
be prepared by Transferor and delivered to Transferee prior to the
expiration of the Due Diligence Period, which schedule shall be subject to
Transferee's review and approval, which approval shall not be unreasonably
withheld.
2.4 RECONVEYANCE OF OUTPARCELS. Upon written request of
Transferor, Transferee agrees, subject to the following sentence and all
necessary governmental approvals, to convey by special warranty deed to
Transferee that certain parcel of land more particularly described on EXHIBIT R
attached hereto (the "North Outparcel") and that certain parcel of land
described on EXHIBIT S attached hereto (the "Driving Range Parcel"), each for
consideration of One Dollar ($1.00). Transferee shall have no obligation to
convey the Driving Range Parcel to Transferor until such time as Transferor has
completed the construction of a substitute driving range satisfactory to
Transferee on a parcel to be acquired by Transferor (the "New Driving Range
Parcel"). Transferor agrees to convey the New Driving Range Parcel to
Transferee by special warranty deed, which conveyance shall occur simultaneously
with the conveyance of the Driving Range Parcel to Transferor. With
Transferee's consent, Transferor may use funds in the Capital Replacement Fund
(as defined in the Golf Course Lease), to the extent such funds are available,
for the acquisition of, and construction of a driving range on, the New Driving
Range Parcel. Transferee agrees to reasonably cooperate, at the sole expense of
Transferor, in any subdividing, platting or zoning process requested by
Transferor in connection with the reconveyance of the North Outparcel and
Driving Range Parcel to Transferor. All expenses associated with the
reconveyance of the North Outparcel and Driving Range Parcel to Transferor shall
be the sole responsibility of Transferor. Prior to the construction of any
improvements on the North Outparcel by Transferor, Transferor shall submit plans
and specifications for such improvements to Transferee for its approval, which
approval shall not be unreasonably withheld.
11
2.5 GRANT OF EASEMENTS. Transferee agrees that prior to the
Closing, Transferor may grant easements (the "Easements") encumbering the
Property pursuant to easement agreements in the forms attached hereto as EXHIBIT
T and EXHIBIT U, and that the Easements shall be Permitted Title Exceptions.
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 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. There is no other
person or entity who has an ownership interest in the Property or whose consent
is required in connection with Transferor's performance of its obligations
hereunder. All action required pursuant to this Agreement necessary to
effectuate the transactions contemplated herein has been, or will at Closing be,
taken promptly and in good faith by Transferor and its representatives and
agents.
3.3 NONCONTRAVENTION. The execution and delivery of, and the
performance by Transferor of its obligations under, this Agreement do not and
will not contravene, or constitute a default under, any provision of applicable
law or regulation, Transferor's Organizational Documents or any agreement,
judgment, injunction, order, decree or other instrument binding upon Transferor,
or result in the creation of any lien or other encumbrance on any asset of
Transferor. There are no outstanding agreements (written or oral) pursuant to
which Transferor (or any predecessor to or representative of Transferor) has
agreed to contribute or has granted an option or right of first refusal to
purchase the Property or any part thereof. Other than the rights of tenants, as
tenants only, under any leases of any portion the Property (copies of which have
been provided to Transferee by Transferor), there are no purchase contracts,
options or other agreements of any kind, written or oral, recorded or
unrecorded, whereby any person or entity other than Transferor will have
acquired or will have any basis to assert any right,
12
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, (iii) all contractors and subcontractors retained by Transferor
who have performed work on or supplied materials to the Property have been fully
paid, and all materials used at or on the Property have been fully paid for,
(iv) the Improvements have been completed in all material respects in a
workmanlike manner of first-class quality, and (v) all equipment necessary or
appropriate for the use or operation of the Property has been installed and is
presently operative in good working order. Transferor has not received any
written notice which is still in effect that there is, and, to the best of
Transferor's knowledge, there does not exist, any violation of a condition or
agreement contained in any easement, restrictive covenant or any similar
instrument or agreement effecting the Real Property, or any portion thereof.
3.7 PERSONAL PROPERTY. All of the Tangible Personal Property and
Intangible Personal Property being conveyed by Transferor to Transferee is free
and
13
clear of all liens and encumbrances and will be so on the Closing Date and
Transferor has good, merchantable title thereto and the right to convey same in
accordance with the terms of this Agreement.
3.8 OPERATING AGREEMENTS. Each of the Operating Agreements may be
terminated upon not more than thirty (30) days prior written notice and without
the payment of any penalty, fee, premium or other amount. Transferor has
performed all of its obligations under each of the Operating Agreements and no
fact or circumstance has occurred which, by itself or with the passage of time
or the giving of notice or both, would constitute a default under any of the
Operating Agreements. Transferor shall not enter into any new Operating
Agreements, supply contract, vending or service contract or other agreements
with respect to the Property, nor shall Transferor enter into any agreements
modifying the Operating Agreements, unless (a) any such agreement or
modification will not bind Transferee or the Property after the Closing Date, or
(b) Transferor has obtained Transferee's prior written consent to such agreement
or modification. Transferor acknowledges that Transferee will not assume any of
the Operating Agreements and none of the Operating Agreements will be binding on
Transferee or the Property after Closing.
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.
3.11 CONDEMNATION PROCEEDINGS; ROADWAYS. Transferor has received no
notice of any condemnation or eminent domain proceeding pending or threatened
against the Property or any part thereof. Transferor has no knowledge of any
change or proposed change in the route, grade or width of, or otherwise
affecting, any street or road adjacent to or serving the Real Property. To the
best of Transferor's knowledge, no fact or condition exists which would result
in the termination or material impairment of access to the Real Property from
adjoining public or private streets or ways or which could result in
discontinuation of presently available or otherwise necessary sewer, water,
electric, gas, telephone or other utilities or services.
14
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.
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
15
business organization, keep available the services of its present officers,
partners and employees and preserve its relationships with suppliers and others
having business dealings with it. Except as otherwise permitted hereby, from
the date hereof until Closing, Transferor shall not take any action or fail to
take action the result of which would have a material adverse effect on the
Property or Transferee's ability to continue the operation thereof after the
Closing Date in substantially the same manner as presently conducted, or which
would cause any of the representations and warranties contained in this Article
III to be untrue as of Closing.
From and after the execution and delivery of this Agreement,
Transferor shall not, other than in the ordinary course of business, (a) make
any agreements which shall be binding upon Transferee with respect to the
Property, or (b) reduce or cause to be reduced any green fees, membership fees,
tournament fees, driving range fees or any other charges over which Transferor
has operational control. Between the date hereof and the Closing Date, if and
to the extent requested by Transferee, Transferor shall deliver to Transferee
such periodic information with respect to the above information as Transferor
customarily keeps internally for its own use. Transferor agrees that it will
operate the Property in accordance with the provisions of this Section 3.16
between the date hereof and the Closing Date.
3.17 BANKRUPTCY. No Act of Bankruptcy has occurred with respect to
Transferor.
3.18 LAND USE. The current use and occupancy of the Property for
golfing and all other related purposes (including, without limitation, the sale
of merchandise and food and beverages) are permitted as a matter of right as a
principal use under all laws and regulations applicable thereto without the
necessity of any special use permit, special exception or other special permit,
permission or consent and Transferor is not aware of any proposal to change or
restrict such use. Transferor has all necessary certificates of occupancy or
completion to operate the Property as presently operated and there are no
unfulfilled conditions respecting the development of the Property.
3.19 PUBLIC OFFERING; PREPARATION OF S-11. Transferor shall
cooperate in the preparation by an Affiliate of Transferee of a Form S-11 or, if
applicable, a Form S-3 under the Securities Act of 1933, as amended, to be
filed with the SEC in connection with any public offering (the "Registered
Offering"). The Registered Offering shall be for purposes of selling shares of
common stock in an Affiliate of Transferee. Transferor shall provide Transferee
access to all financial and other information relating to the Property which
would be sufficient to enable them to prepare financial statements in conformity
with Regulation S-X of the SEC and to enable the Transferee to prepare a
registration statement, report or disclosure statement for filing with the SEC.
At Transferee's request, Transferor shall provide to Transferee's
representatives a signed representation letter sufficient to enable an
independent public accountant to render an opinion on the financial statements
related to the Property.
16
3.20 HAZARDOUS SUBSTANCES. Except as may be disclosed in the Phase
I environmental assessment report for the Property, to the best of Transferor's
knowledge, (i) no Hazardous Substances are or have been located on (except in
immaterial amounts used in the ordinary course for the operation or maintenance
of the Property by Transferor in accordance with all applicable laws), in or
under the Property or have been released into the environment, or discharged,
placed or disposed of at, on or under the Property; (ii) no underground storage
tanks are, or have been, located at the Property; (ii) the Property has never
been used to store, treat or dispose of Hazardous Substances; and (iv) the
Property and its prior uses comply with, and at all times have complied with all
applicable Environmental Laws or any other governmental law, regulation or
requirement relating to environmental and occupational health and safety matters
and Hazardous Substances. To the best of Transferor's knowledge, there
currently exist no 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. All Utilities required for the operation of the
Property either enter the Property through adjoining streets, or they pass
through adjoining land and do so in accordance with valid public easements or
private easements, and all of said Utilities are installed and are in good
working order and repair and operating as necessary for the operation of the
Property and all installation and connection charges therefor have been paid in
full. The sewage, sanitation, plumbing, water retention and detention, refuse
disposal and utility facilities in and on and/or servicing the Real Property are
adequate to service the Real Property as it is currently being used and the Real
Property's utilization of such facilities is in compliance with all applicable
governmental and environmental protection authorities' laws, rules, regulations
and requirements.
3.22 CURB CUTS. All curb cut street opening permits or licenses
required for vehicular access to and from the Property from any adjoining public
street have been obtained and paid for and are in full force and effect.
3.23 LEASED PROPERTY. The Personal Property identified on EXHIBIT C
is all of the leased property at the Property, and such exhibit reflects the
date of each such lease, the name of the lessor, the name of the lessee, the
term of each such lease, the lease payment terms and a description of the
property demised by each such lease. All leases of such property are in good
standing and free from default.
3.24 SUFFICIENCY OF CERTAIN ITEMS. The Property, together with the
Current Assets, contain an amount of equipment and supplies, which is sufficient
to efficiently operate and maintain the Property in the manner in which it is
normally operated and maintained.
3.25 ACCREDITED INVESTOR. Transferor and all equity owners of
Transferor are as of the date hereof, and as of the Closing Date shall be,
"Accredited Investors".
17
Concurrent herewith Transferor shall execute and deliver to Transferee the
Accredited Investor Questionnaire attached hereto as EXHIBIT N.
3.26 NO CERTIFICATE OF OCCUPANCY. No certificate of occupancy, or
similar certificate from a Governmental Body, is required to allow for the use
of the Real Property as a golf course and permit the continued operation of the
Improvements as presently operated.
Each of the representations, warranties and covenants contained in this
Article III are intended for the benefit of Transferee and any underwriter in
the Registered Offering. Each of said representations, warranties and covenants
shall survive the Closing for a period of one (1) year, at which time they shall
expire unless prior to such time Transferee has made a formal, written claim
alleging a breach of one or more of the representations, warranties or
covenants. No investigation, audit, inspection, review or the like conducted by
or on behalf of Transferee shall be deemed to terminate the effect of any such
representations, warranties and covenants, it being understood that Transferee
has the right to rely thereon and that each such representation, warranty and
covenant constitutes a material inducement to Transferee to execute this
Agreement and to close the transaction contemplated hereby and to pay the
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.
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
18
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 as of the date hereof and as of the Closing Date as if then made,
there shall have occurred no material adverse change in the condition or
financial results of the operation of the Property since the date hereof.
Transferor shall have performed all of its covenants and other obligations
under this Agreement and Transferor shall have executed and delivered to
Transferee on the Closing Date a certificate dated as of the Closing Date
to the foregoing effect in the form of EXHIBIT O attached hereto.
(c) TITLE INSURANCE. The Title Company shall have delivered the
Owner's Title Policy, subject only to the Permitted Title Exceptions.
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(d) TITLE TO PROPERTY. Transferee shall have determined that
Transferor is the sole owner of good and marketable fee simple title (or
ground lease interest, as applicable) to the Real Property and to the
Tangible Personal Property, free and clear of all liens, encumbrances,
restrictions, conditions and agreements except for Permitted Title
Exceptions. Transferor shall not have taken any action or permitted or
suffered any action to be taken by others from the date hereof and through
and including the Closing Date that would adversely affect the status of
title to the Real Property or to the Tangible Personal Property.
(e) CONDITION OF PROPERTY. The Real Property and the Tangible
Personal Property (including but not limited to the golf course, driving
range, putting greens, mechanical systems, plumbing, electrical wiring,
appliances, fixtures, heating, air conditioning and ventilating equipment,
elevators, boilers, equipment, roofs, structural members and furnaces)
shall be in the same condition at Closing as they are as of the date
hereof, reasonable wear and tear excepted. Prior to Closing, Transferor
shall not have diminished the quality or quantity of maintenance and upkeep
services heretofore provided to the Real Property and the Tangible Personal
Property. Transferor shall not have removed or caused or permitted to be
removed any part or portion of the Real Property or the Tangible Personal
Property unless the same is replaced, prior to Closing, with similar items
of at least equal quality and acceptable to Transferee.
(f) UTILITIES. All of the Utilities shall be installed in and
operating at the Property, and service shall be available for the removal
of garbage and other waste from the Property. Between the date hereof and
the Closing Date, Transferor shall have received no notice of any material
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. Transferor shall have obtained all liquor
licenses, alcoholic beverage licenses and other permits and Authorizations
necessary to operate the restaurant, bars, snack shops and lounges
presently located at the Property. To that end, Transferor and Transferee
shall have cooperated with each other, and each shall have executed such
transfer forms, license applications and other documents as may be
necessary to effect the obtaining of the liquor licenses, alcoholic
beverage licenses and other Authorizations required hereby. Subject to
required governmental consents (which Transferor shall diligently seek to
obtain), prior to or upon the expiration of the Lease, Transferor shall
convey, or cause to be conveyed, to Transferee or Transferee's nominee, all
such licenses, permits and Authorizations.
(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.
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(i) GOLF COURSE LEASE. An Affiliate of Transferor shall have
delivered to Transferee a countersigned copy of the Golf Course Lease in a
form prepared by Transferee, which shall be in substantially the form
attached hereto as EXHIBIT E.
(j) APPROVAL BY BOARD OF DIRECTORS. Approval of the Board of
Directors of Golf Trust of America, Inc. of the transaction contemplated by
this Agreement by an affirmative vote within twenty-five (25) days of the
Effective Date.
Each of the conditions and additional covenants contained in this Section are
intended for the benefit of Transferee and may be waived in whole or in part by
Transferee, but only by an instrument in writing signed by Transferee.
5.2 AS TO TRANSFEROR'S OBLIGATIONS. Transferor's obligations
hereunder are subject to the satisfaction of the following conditions precedent
and the compliance by Transferee with the following covenants:
(a) TRANSFEREE'S DELIVERIES. Transferee shall have delivered to or
for the benefit of Transferor, on or before the Closing Date, all of the
documents and payments required of Transferee pursuant to this Agreement.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS. All of Transferee's
representations and warranties made in this Agreement shall be true and
correct as of the date hereof and as of the Closing Date as if then made
and Transferee shall have performed all of its covenants and other
obligations under this Agreement and Transferee shall have executed and
delivered to Transferor on the Closing Date a certificate dated as of the
Closing Date to the foregoing effect in the form of EXHIBIT Q attached
hereto.
(c) COUNTERSIGNED COPIES OF PARTNERSHIP AGREEMENT AND GOLF COURSE
LEASE. Transferee shall have delivered to Transferor countersigned copies
of the Partnership Agreement and Golf Course Lease.
Each of the conditions and additional covenants contained in this Section are
intended for the benefit of Transferor and may be waived in whole or in part, by
Transferor, but only by an instrument in writing signed by Transferor.
ARTICLE 6
CLOSING
6.1 CLOSING. Closing shall be held at 9:00 a.m., New York time, at
the offices of the Transferee (or counsel to Transferee) on a date that is ten
(10) days after the expiration of the Due Diligence Period; provided, however,
that such ten (10) day period may be extended for an additional twenty (20) days
by Transferee, at its sole discretion, by providing written notice to Transferor
prior to the expiration of such ten
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(10) day period. 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 (except for the standard survey
exception), so that the Owner's Title Policy will be subject only to the
Permitted Title Exceptions, including, without limitation, an appropriate
mechanics' and construction lien, possession and gap affidavit.
(h) The FIRPTA Certificate.
(i) To the extent available, true, correct and complete copies of
all warranties, if any, of manufacturers, suppliers and installers
possessed by Transferor and relating to the Property, or any part thereof.
(j) Certified copies of Transferor's Organizational Documents.
(k) Appropriate resolutions of the board of directors or partners,
as the case may be, of Transferor, certified by the secretary or an
assistant secretary of Transferor or a general partner, as the case may be,
together with all other necessary approvals and consents of Transferor,
authorizing (i) the execution on behalf of Transferor of this Agreement and
the documents to be executed and delivered by Transferor prior to, at or
otherwise in connection with Closing, and (ii) the performance by
Transferor of its obligations hereunder and under such
22
documents, or appropriate resolutions of the partners of Transferor, as the
case may be.
(l) 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 of the state in which the Property is
located, if any such laws or statutes exist.
(m) Copy of each and every existing insurance policy covering the
Property and certificates evidencing such coverage.
(n) To the extent available, a set or copies of the plans and
specifications for the Improvements.
(o) 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.
(p) All current real estate and personal property tax bills in
Transferor's possession or under its control.
(q) All surveys and plot plans of the Real Property in possession
of or in the control of Transferor.
(r) A complete list of all scheduled tournaments, functions and the
like, in reasonable detail.
(s) A list of Transferor's outstanding accounts receivable as of
midnight on the date prior to the Closing, specifying the name of each
account and the amount due Transferor.
(u) A pay off statement prepared by any holder of Mortgage
Indebtedness setting forth the amount, including accrued interest and
prepayment penalties, to pay off the Mortgage Indebtedness.
(v) Written notice executed by Transferor notifying all interested
parties, including all tenants under any leases of the Property, that the
Property has been conveyed to Transferee and directing that all payments,
inquiries and the like be forwarded to Transferee at the address to be
provided by Transferee.
(t) Any other document or instrument reasonably requested by
Transferee with respect to the Property.
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6.3 TRANSFEREE'S DELIVERIES. At Closing, Transferee shall pay or
deliver to Transferor the following:
(a) The cash portion of the Purchase Price by federal funds wire to
an account designated by Transferor.
(b) The non-cash portion of the Purchase Price payable in Owner's
Shares issued to such holders and in such denominations to such holders as
specified by Transferor.
(c) Any other document or instrument reasonably requested by
Transferor relating to the transaction contemplated hereby.
6.4 MUTUAL DELIVERIES. At Closing, Transferee and Transferor shall
mutually execute and deliver each to the other:
(a) A closing statement for Transferor and a closing statement for
Transferee (collectively, the "Closing Statements") reflecting the 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 receive a cash payment at closing to pay for such closing costs as
provided in Section 2.3(c).
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6.6 INCOME AND EXPENSE ALLOCATIONS. All income and expenses with
respect to the Property, and applicable to the period of time before and after
Closing, determined in accordance with generally accepted accounting principles
consistently applied, shall be allocated between Transferor and Transferee (or,
at Transferee's election, between Transferor and the lessee under the Golf
Course Lease to the extent such income or expenses will be payable by or
attributable to such lessee). Transferor shall be entitled to all income and
shall be responsible for all expenses for the period of time up to but not
including the Closing Date, and Transferee shall be entitled to all income and
shall be responsible for all expenses for the period of time from, after and
including the Closing Date. Such adjustments shall be shown on the Closing
Statements (with such supporting documentation as the parties hereto may require
being attached as exhibits to the Closing Statements) and shall increase or
decrease (as the case may be) the 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 (excluding income
and expenses directly related to the sale of Restaurant Supplies and
Inventory).
(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.
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(a) Transferee shall not be obligated to collect any accounts
receivable or revenues accrued prior to the Closing Date for Transferor,
but if Transferee collects same, such amounts will be promptly remitted to
Transferor in the form received. Transferee shall receive a credit at
Closing for the amount of any security deposits held by Transferor under
any lease of any portion of the Property that is being assigned to
Transferee in accordance herewith.
(b) If accurate allocations and prorations cannot be made at
Closing because current bills are not obtainable (as, for example, in the
case of utility bills and/or real estate or personal property taxes), the
parties shall allocate such income or expenses at Closing on the best
available information, subject to adjustment outside of escrow upon receipt
of the final xxxx or other evidence of the applicable income or expense.
Any income received or expense incurred by Transferor or Transferee with
respect to the Property after the Closing Date shall be promptly allocated
in the manner described herein and the parties shall promptly pay or
reimburse any amount due. Transferor shall pay at Closing all accrued
special assessments and taxes applicable to the Property.
ARTICLE 7
GENERAL PROVISIONS
7.1 CONDEMNATION. In the event of any actual or threatened taking,
pursuant to the power of eminent domain, of all or any portion of the Real
Property, or any proposed sale in lieu thereof, Transferor shall give written
notice thereof to Transferee promptly after Transferor learns or receives notice
thereof. If all or any part of the Real Property is, or is to be, so condemned
or sold, Transferee shall have the right to terminate this Agreement pursuant to
Section 8.3. If Transferee elects not to terminate this Agreement, all
proceeds, awards and other payments arising out of such condemnation or sale
(actual or threatened) shall be paid or assigned, as applicable, to Transferee
at Closing. Transferor will not settle or compromise any such proceeding
without Transferee's prior written consent.
7.2 RISK OF LOSS. The risk of any loss or damage to the Property
prior to the Closing Date shall remain upon Transferor. If any such loss or
damage occurs prior to Closing, Transferee shall have the right to terminate
this Agreement pursuant to Section 8.3. If Transferee elects not to terminate
this Agreement, all insurance proceeds and rights to proceeds arising out of
such loss or damage shall be paid or assigned, as applicable, to Transferee at
Closing.
7.3 REAL ESTATE BROKER. Except for a broker or finder who may have
been engaged by Transferor and for whom Transferor accepts sole financial
responsibility, and except for any broker or finder who may have been engaged by
Transferee and for whom Transferee accepts sole financial responsibility, there
is no real estate broker involved in this transaction. Transferee warrants and
represents to Transferor that Transferee has not dealt with any other real
estate broker in connection with this transaction, nor has Transferee been
introduced to the Property or to
26
Transferor by any other real estate broker, and Transferee shall indemnify
Transferor and save and hold Transferor harmless from and against any claims,
suits, demands or liabilities of any kind or nature whatsoever arising on
account of the claim of any person, firm or corporation to a real estate
brokerage commission or a finder's fee as a result of having dealt with
Transferee, or as a result of having introduced Transferee to Transferor or to
the Property. In like manner, Transferor warrants and represents to Transferee
that Transferor has not dealt with any real estate broker in connection with
this transaction, nor has Transferor been introduced to Transferee by any real
estate broker, and Transferor shall indemnify Transferee and save and hold
Transferee harmless from and against any claims, suits, demands or liabilities
of any kind or nature whatsoever arising on account of the claim of any person,
firm or corporation to a real estate brokerage commission or a finder's fee as a
result of having dealt with Transferor in connection with this transaction.
Transferee acknowledges that Xxxxx X. Xxxx, an officer of the Transferee, is a
licensed California real estate broker but is not acting as a broker in relation
to this Agreement.
7.4 CONFIDENTIALITY. Except as hereinafter provided, from and
after the execution of this Agreement, Transferee and Transferor shall keep the
terms, conditions and provisions of this Agreement confidential and neither
shall make any public announcements hereof unless the other first approves of
same in writing, nor shall either disclose the terms, conditions and provisions
hereof, except to their respective attorneys, accountants, engineers, surveyors,
financiers and bankers. Notwithstanding the foregoing, it is acknowledged that
the Company is a public company and will make a public announcement concerning
this transaction and that the Company anticipates that it will seek to sell
shares of its common stock and other securities (collectively, the "Securities")
to the general public pursuant to 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.
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,
27
losses, liabilities and expenses (including reasonable attorneys' fees) that may
at any time be incurred by Transferee, whether before or after Closing, as a
result of any breach by Transferor of any of its representations, warranties,
covenants or obligations set forth herein or in any other document delivered by
Transferor pursuant hereto, for a period of one (1) year following the Closing.
The provisions of this section shall survive termination of this Agreement by
Transferee or Transferor.
8.3 TERMINATION BY TRANSFEREE. If any condition set forth herein
for the benefit of Transferee cannot or will not be satisfied prior to Closing,
or upon the occurrence of any other event that would entitle Transferee to
terminate this Agreement and its obligations hereunder, and Transferor fails to
cure any such matter within ten (10) business days after notice thereof from
Transferee, Transferee, at its option, may elect either (a) to terminate this
Agreement and all other rights and obligations of Transferor and Transferee
hereunder shall terminate immediately, or (b) to waive its right to terminate
(but without waiving any breach or default on the part of Transferor) and,
instead, to proceed to Closing. If Transferee terminates this Agreement as a
consequence of a misrepresentation or breach of a warranty or covenant by
Transferor, or a failure by Transferor to perform its obligations hereunder,
then Transferee shall retain all remedies accruing as a result thereof,
including, without limitation, specific performance.
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, or (b) to waive its right to terminate, and
instead, to proceed to Closing. If, prior to Closing, Transferee defaults in
performing any of its obligations under this Agreement (including its obligation
to purchase the Property), and Transferee fails to cure any such default within
ten (10) business days after notice thereof from Transferor, then Transferor's
sole remedy for such default shall be to terminate this Agreement and Transferor
waives any claims for damages, actual, consequential or otherwise, that it may
possess against Transferee.
8.5 COSTS AND ATTORNEYS' FEES. In the event of any litigation or
dispute between the parties arising out of or in any way connected with this
Agreement, resulting in any litigation, arbitration or other form of dispute
resolution, then the prevailing party in such litigation shall be entitled to
recover its costs of prosecuting and/or defending same, including, without
limitation, reasonable attorneys' fees at trial and all appellate levels.
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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
29
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 filing 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.
30
IN WITNESS WHEREOF, Transferor and Transferee have hereunder affixed
their signatures to this Contribution and Leaseback Agreement, all as of the
17th day of October, 1997.
"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, XX
---------------------------------------------
W. Xxxxxxx Xxxxx, XX
President
"TRANSFEROR"
PROPERTIES OF THE COUNTRY, INC.,
a Kansas corporation
By: /s/ Xxxxx Xxxxxxx
---------------------------------------------
Xxxxx Xxxxxxx
President
31
