ASSET PURCHASE AGREEMENT
by and between
SOUTHAMPTON FAMILY GOLF CENTER, INC.
Seller,
and
PHILADELPHIA FAMILY GOLF CENTERS, INC.,
Purchaser
INDEX OF EXHIBITS AND SCHEDULES
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B PERSONAL PROPERTY
EXHIBIT C CONTRACTS
ASSET PURCHASE AGREEMENT
------------------------
ASSET PURCHASE AGREEMENT, made as of the ___ day of June, 1997
(this "Agreement"), by and between SOUTHAMPTON FAMILY GOLF CENTER, INC., a
Pennsylvania corporation having an address at 0 Xxxxxxxx Xxxxx, Xxxxxxx, XX
00000 ("Seller"), and PHILADELPHIA FAMILY GOLF CENTERS, INC., a Delaware
corporation having an address at 000 Xxxxxxxxxxx Xxxx, Xxxxx 000X, Xxxxxxxx,
Xxx Xxxx 00000 ("Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller is the lessee of certain real property located at 000
Xxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000 and more particularly described on
Exhibit A attached hereto and made a part hereof (the "Land") and the buildings
and improvements located on the Land (the "Improvements" and, together with the
Land, the "Premises") pursuant to a lease (the "Lease") with Pinley
Enterprises, Ltd. (the "Landlord");
WHEREAS, Seller operates a driving range and related facilities at the
Premises under the name "The Southampton Golf Center" (the "Business");
WHEREAS, simultaneously with the execution and delivery of this
Agreement, Purchaser is entering into an Agreement and Plan of Merger to merge
with Landlord;
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Lease is being terminated; and
WHEREAS, Seller wants to sell certain assets relating to the Business
to Purchaser, and Purchaser wants to purchase such assets from Seller, on the
terms, and subject to the conditions, set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the mutual receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree to
the foregoing and as follows:
1. Agreement to Sell and Purchase.
1.1 Property to be Purchased by Purchaser. Seller agrees to sell
and convey to Purchaser, and Purchaser agrees to purchase and acquire from
Seller, upon the terms and conditions hereinafter set forth, all of Seller's
right, title and interest in and to the following property (collectively, the
"Property"):
1.1.1 all furnishings, fixtures, machinery, equipment,
vehicles and personalty attached or appurtenant to or used in connection with
the Business that are owned by Seller, and all inventories, supplies, sales,
marketing and instructional materials of every kind and description relating to
the Business, wherever located, including without limitation, the items
described on Exhibit B attached hereto and made a part hereof (the "Personal
Property");
1.1.2 the files, books, notices and other correspondence
from any governmental agencies, and other records used or employed by Seller or
its affiliates in connection with the ownership and/or operation of the
Business (collectively, the "Records");
1.1.3 any consent, authorizations, variances, waivers,
licenses, certificates, permits and approvals held by or granted to Seller in
connection with the operation of the business (collectively, the "Permits");
1.1.4 the contracts, leases and other agreements of or
relating to the Business described on Exhibit C attached hereto and made a part
hereof, except to
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the extent the same relate solely to any Retained Assets or Retained
Liabilities (as hereinafter defined) (the "Contracts");
1.1.5 all accounts receivable of Seller arising out of the
sale of goods or services rendered at the Premises or otherwise in connection
with the Business on or after the Closing Date;
1.1.6 any manufacturers' and vendors' warranties and
guarantees, except to the extent the same relate solely to any Retained Assets
or Retained Liabilities (the "Claims"); and
1.1.7 any other properties and assets of every kind and
nature, real or personal, tangible or intangible, relating in any way
whatsoever to the Business, except to the extent the same relate solely to the
Retained Assets or Retained Liabilities.
1.2 Assets to be Retained by Seller. Anything herein to the
contrary notwithstanding, Seller shall not sell, and Purchaser shall not
acquire, the following assets of Seller (the "Retained Assets"):
1.2.1 all trade accounts receivable arising out of the sale
of goods or services prior to the Closing Date;
1.2.2 any rights of Seller with respect to insurance
policies owned by Seller or for which Seller is the named insured;
1.2.3 all cash, funds in bank accounts and cash equivalents
existing as of the date hereof; and
1.2.4 any patents, trademarks, trademark registrations,
copyrights, copyright registrations, trade names and all registrations thereof
and all applications
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for any of the foregoing, whether issued or pending, if any, and all goodwill
associated with any of the foregoing (the "Intangible Assets").
1.3 Assumption of Certain Liabilities. Purchaser shall assume and
agree to pay and discharge when due all liabilities and obligations of Seller
under the Contracts to the extent the same arise from and after the Closing
(the "Assumed Liabilities").
1.4 Liabilities to be Retained by Purchaser. Seller shall retain,
and Purchaser shall not assume, perform, discharge or pay, and shall not be
responsible for, any and all liabilities or obligations of any nature
whatsoever in connection with or relating to the Property, Seller or the
Business or any predecessor owner of the Property or the Business other than
the Assumed Liabilities (collectively, the "Retained Liabilities").
2. Consideration. In consideration for the Property, Purchaser shall
pay to Seller One Hundred and Six Thousand Dollars ($106,000.00), subject to
adjustment as hereinafter provided, payable on the date hereof in cash, or by
certified or bank check or by the wire transfer of fund.
3. Apportionments.
3.1 The parties hereto agree that (i) all operating expenses of
Seller relating to the Business (i.e., real estate taxes, utilities, cost of
inventories advertising, collections, fees, hired services, insurance,
miscellaneous expenses, postage, repairs and maintenance, supplies, taxes and
wages, but specifically not including interest on indebtedness, professional
fees and expenses, travel, lodging, or depreciation), and (ii) all income of
Seller, shall be apportioned between Seller and Purchaser as of the Closing
Date based on the portion of each such expense or revenue attributable to the
period falling before the Closing Date on the one hand, which Seller shall bear
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the responsibility and benefit of, and the portion of each such expense or
revenue attributable to the period falling on or after the Closing Date, on the
other hand, which Purchaser shall bear the responsibility and benefit of (the
"Adjustment"). The net Adjustment will be paid by the party owing the same to
the other at the closing. The expenses and liabilities for which Seller shall
be liable pursuant to this Section shall be included within the meaning of the
term "Retained Liabilities".
3.2 To the extent that any of the prorations made pursuant to
this Article are based upon estimates of payments to be made and/or expenses to
be incurred by Purchaser subsequent to the Closing Date, or either party
discovers any errors in or omissions in respect of such prorations, Seller and
Purchaser agree to adjust such prorations promptly upon receipt by Seller or
Purchaser, as the case may be, of such payments or of bills or other
documentation setting forth the actual amount of such expenses.
3.3 Seller and Purchaser shall maintain and make available to
each other any books or records necessary for the adjustment of any item
pursuant to this Article. The provisions of this Article shall survive the
closing of the transactions described herein (the "Closing").
4. The Closing. The Closing of the transaction provided for in this
Agreement shall take place simultaneously with the execution and delivery of
this Agreement (the actual date of the Closing being referred to herein as the
"Closing Date").
5. Representations and Warranties.
5.1 Seller represents and warrants to Purchaser as follows:
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5.1.1 Organization; Power and Authority. Seller is a
corporation duly formed, validly existing and in good standing under the laws
of the State of Pennsylvania, and has all requisite power and authority to
carry on its business as it is now being conducted, to execute, deliver and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby.
5.1.2 Due Authorization and Execution; Effect of Agreement.
The execution, delivery and performance by Seller of this Agreement and the
consummation by Seller of the transactions contemplated hereby have been duly
authorized by all necessary corporate action required to be taken on the part
of Seller. This Agreement has been duly and validly executed and delivered by
Seller and constitutes the valid and binding obligation of Seller, enforceable
in accordance with its terms, except to the extent that such enforceability (a)
may be limited by bankruptcy, insolvency, or other similar laws relating to
creditors' rights generally; and (b) is subject to general principles of
equity.
5.1.3 Consents. No consent, approval or authorization of,
exemption by, or filing with, any governmental or regulatory authority or any
third party is required in connection with the execution, delivery and
performance by Seller of this Agreement, except for consents, approvals,
authorizations, exemptions and filings, if any, which have been obtained.
5.1.4 Compliance with Applicable Laws. Seller is not
engaging in any activity or omitting to take any action as a result of which
Seller is in violation of any law, rule, regulation, ordinance, statute, order,
injunction or decree, or any other requirement of any court or governmental or
administrative body or agency, applicable to the Property or the
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Business, and neither the execution and delivery by Seller of this Agreement or
of any of the other agreements and instruments to be executed and delivered by
it pursuant hereto, the performance by Seller of its obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby will result in any such violation. Seller is in compliance with all
material requirements imposed in writing by any insurance carrier of Seller to
the extent such carrier is an insurer or indemnitor of the Property.
5.1.5 Permits. All Permits required by any federal, state,
or local law, rule or regulation and necessary for the operation of the
Property and the Business as currently being conducted have been obtained and
are currently in effect. No registrations, filings, applications, notices,
transfers, consents, approvals, orders, qualifications, waivers or other
actions of any kind are required by virtue of the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby (a)
to avoid the loss of any Permit or the violation of any law, regulation, order
or other requirement of law, or (b) to enable Purchaser to continue the
operation of the Property as presently conducted after the Closing. The current
use and occupation of any portion of the Property does not violate any of, and,
where applicable, is in material compliance with, the Permits, any applicable
deed restrictions or other covenants, restrictions or agreements including
without limitation, site plan approvals, zoning or subdivision regulations or
urban redevelopment plans applicable to the Premises.
5.1.6 Title to Assets. Seller has good and marketable title
to the Property free and clear of all Encumbrances.
5.1.7 Contracts. Except as set forth on Exhibit C, Seller is
not a party to any leases, contracts, orders or agreements relating to the
Property or the Business
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(written or otherwise) (collectively, "Contracts"). Exhibits C sets forth a
full and complete description of the Contracts described therein, and none of
such Contracts have been amended or modified except as reflected on said
Exhibits. Seller is not holding any security deposits under any of said
Contracts. Each of the Contracts are in full force and effect and no party
under any such Contract, including Seller, is in default, or has sent or
received notice of default, in any respect of any such Contract.
5.1.8 Condition of Personal Property. The Personal Property
is in good operating condition and repair, ordinary wear and tear excepted, and
is adequate, suitable and sufficient to meet the needs of and to operate the
Property as currently conducted.
5.1.10 Environmental Matters.
5.1.10.1 As used in this Agreement "Hazardous Material"
shall mean: (i) any "hazardous substance" as now defined pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 U.S.C. ' 9601(33); (ii) any "pollutant or contaminant" as
defined in 42 U.S.C. ' 9601(33); (iii) any material now defined as "hazardous
waste" pursuant to 40 C.F.R. Part 261; (iv) any petroleum, including crude oil
and any fraction thereof; (v) natural or synthetic gas usable for fuel; (vi)
any "hazardous chemical" as defined pursuant to 29 C.F.R. Part 1910; (vii) any
asbestos, asbestos containing material, polychlorinated biphenyl ("PCB"), or
isomer of dioxin, or any material or thing containing or composed of such
substance or substances; and (viii) any other pollutant, contaminant, chemical,
or industrial or hazardous, toxic or dangerous waste, substance
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or material, defined or regulated as such in (or for purposes of any
Environmental Law (as hereinafter defined) and any other toxic, reactive or
flammable chemicals.
5.1.10.2 There is no Hazardous Material at, under or on
the Premises and there is no ambient air, surface water, groundwater or land
contamination within, under, originating from or relating to the Premises.
Seller has not, and has not caused to be, manufactured, processed, distributed,
used, treated, stored, disposed of, transported or handled any Hazardous
Material at, on or under the Premises.
5.1.10.3 Seller has no obligation or liability imposed
or based upon any provision under any foreign, federal, state or local law,
rule, or regulation or common law, or under any code, order, decree, judgment
or injunction applicable to Seller or the Property or any notice, or request
for information issued, promulgated, approved or entered thereunder, or under
the common law, or any tort, nuisance or absolute liability theory, relating to
public health or safety, worker health or safety, or pollution, damage to or
protection to the environment, including without limitation, laws relating to
emissions, discharges, releases or threatened releases of Hazardous Material
into the environment (including without limitation, ambient air, surface water,
groundwater, land surface or subsurface), or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, generation,
disposal, transport or handling of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes (hereinafter collectively
referred to as "Environmental Laws").
5.1.10.4 Seller has not been subject to any civil,
criminal or administrative action, suit, claim, hearing, notice of violation,
investigation, inquiry or proceeding for failure to comply with, or received
notice of any violation or potential
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liability under the Environmental Laws in respect of the Premises.
5.1.10.5 The Premises are not (a) listed or proposed
for listing on the National Priority List or (b) listed on the Comprehensive
Environmental Response, Compensation, Liability Information System List
("CERCLIS") promulgated pursuant to CERCLA, 42 U.S.C. ' 960196), or any
comparable list maintained by any foreign, state or local government authority.
5.1.10.6 There are no underground storage tanks at the
Premises and Seller further warrants and represents that any prior use and
operation of underground storage tanks has been in compliance with all
Environmental Laws.
5.1.11 Utilities. All water, storm and sanitary sewer, gas,
electricity, telephone and other utilities adequately service the Premises,
enter the Premises through lands as to which valid public or private easements
exist that will inure to the benefit of Purchaser and the Premises are
furnished by facilities of public utilities and the cost of installation of
such utilities has been fully paid.
5.1.12 Access. To the best of Seller's knowledge, there are
no federal, state, county, municipal or other governmental plans to change the
highway or road system in the vicinity of the Premises which could materially
restrict or change access from any such highway or road to the Premises or any
pending or threatened condemnation or eminent domain proceedings relating to or
affecting the Premises.
5.1.13 Insurance Requirements. All requirements or
recommendations by any insurer or by any board of fire underwriters or similar
body in respect of the Property have been satisfied.
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5.1.14 Litigation. There is no action or proceeding (zoning
or otherwise) or governmental investigation pending, or, to the best of
Seller's knowledge, threatened against, or relating to, Seller (insofar as it
relates to the Premises or the Business), the Premises, the Business or the
transactions contemplated by this Agreement, nor is there any basis for any
such action, proceeding or investigation.
5.1.15 Assessments. There are no special or other
assessments for public improvements or otherwise now affecting the Premises nor
does Seller know of (a) any pending or threatened special assessments affecting
the Premises or (b) any contemplated improvements affecting the Premises that
may result in special assessments affecting the Premises.
5.1.16 Employee Agreements. There are no union or employment
contracts or agreements (written or oral) involving employees of Seller or its
affiliates affecting the Property or the Business which will survive the
Closing. All employees of Seller will have been terminated as of the date
hereof.
5.1.17 Work at the Premises. No services, material or work
have been supplied to the Premises for which payment has not been made in full
other than those that will be paid at closing.
5.1.18 Financial Condition. Seller has delivered to
Purchaser true and correct copies of (1) audited financial statements
consisting of balance sheets and income statements of Seller as of December 31,
1996; (2) unaudited statements for the quarters ended March 31, 1997,; and (3)
internal reports for the months ended April 30, May 31, 1997 and for the period
commencing June 1, 1996 through the date immediately prior to
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the date hereof. Each such balance sheet presents fairly the financial
condition, assets and liabilities of Seller as of its date; each such statement
of income presents fairly the results of operations of Seller for the period
indicated. The financial statements referred to in this Section are in
accordance with the books and records of Seller. Since December 31, 1996 and
since March 31, 1997: (a) there has at no time been a material adverse change
in the financial condition, results of operations, businesses, properties,
assets, liabilities or future prospects of Seller, the Property or Business;
(b) the Business has been conducted in all respects only in the ordinary
course; and (c) Seller has not suffered an extraordinary loss (whether or not
covered by insurance) or waived any right of substantial value.
5.1.19 Full Disclosure. To the best knowledge of Seller,
none of the information supplied by Seller herein or in the exhibits hereto
contains any untrue statement of a material fact or omits to state a material
fact required to be stated herein or necessary in order to make the statements
herein, in light of the circumstances under which they are made, not
misleading.
5.2 Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller as follows:
5.2.1 Organization; Power and Authority. Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and has all requisite power and authority to
carry on its business as it is now being conducted, to execute, deliver and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby.
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5.2.2 Due Authorization and Execution; Effect of Agreement.
The execution, delivery and performance by Purchaser of this Agreement and the
consummation by Purchaser of the transactions contemplated hereby have been
duly authorized by all necessary corporate action required to be taken on the
part of Purchaser. This Agreement has been duly and validly executed and
delivered by Purchaser and constitutes the valid and binding obligation of
Purchaser, enforceable in accordance with its terms. The execution, delivery
and performance by Purchaser of this Agreement and the consummation by
Purchaser of the transactions contemplated hereby will not, with or without the
giving of notice or the lapse of time, or both, (a) violate any provision of
any law, rule or regulation to which Purchaser is subject; (b) violate any
order, judgment or decree applicable to Purchaser; or (c) conflict with or
result in a breach of or a default under any term or condition of Purchaser's
Certificate of Incorporation or By-Laws or any agreement or other instrument to
which Purchaser is a party or by which it or its assets may be bound, except in
each case, for violations, conflicts, breaches or defaults which in the
aggregate would not materially hinder or impair the consummation of the
transactions contemplated hereby.
5.3 Survival. The representations and warranties of the parties
made in this Article 5 shall survive the Closing.
6. Further Assurances. At any time and from time to time after the
Closing, Seller shall, at the request of Purchaser, execute and deliver any
further instruments or documents and take all such further action as Purchaser
may reasonably request in order to transfer into the name of Purchaser any and
all Property contemplated to be sold pursuant to this Agreement and to
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further consummate the transactions contemplated by this Agreement. This
Article shall survive the Closing.
7. Brokers. Seller and Purchaser warrant and represent to each other
that they dealt with no broker, finder or similar agent or party who or which
might be entitled to a commission or compensation on account of introducing the
parties, the negotiation or execution of this Agreement and/or the closing of
the transaction provided for herein, other than Blue Sky Commercial and Xxxxxx
Xxxxxx & Associates (the "Brokers"). Purchaser and Seller hereby respectively
agree to indemnify and hold harmless the other party from and against all loss,
liability, damage and expense (including, without limitation, attorneys' fees)
imposed upon or incurred by the other party by reason of any claim for
commissions or other compensation for bringing about this transaction by any
broker, finder or similar agent or party other than the Brokers. Seller agrees
to pay the Brokers any commissions due the Brokers in connection with this
transaction pursuant to a separate agreement or agreements between Seller and
the Brokers. The provisions of this Article shall survive the Closing or any
termination of this Agreement.
8. Costs and Fees. Seller shall pay the expenses incurred in
connection with an audit of the Seller. Purchaser shall pay the expenses
incurred in connection with (a) the examination of title, (b) the issuance of a
policy of title insurance for Purchaser (c) a survey of the property, and (d)
the Phase I environmental study. Any other similar costs not expressly provided
for elsewhere in this Agreement shall be divided and borne in accordance with
the usual practices in the jurisdiction where the Premises are located. The
provisions of this Article shall survive the Closing.
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9. Indemnification.
9.1 Subject to the further provisions of this Article, Seller
shall protect, defend, hold harmless and indemnify Purchaser, its officers,
directors, shareholders, employees, agents and affiliates, and their respective
successors and assigns, from, against and in respect of any and all losses,
liabilities, deficiencies, penalties, fines, costs, damages and expenses
whatsoever (including without limitation, reasonable professional fees and
costs of investigation, litigation, settlement, and judgment and interest)
("Losses") that may be suffered or incurred by any of them arising from or by
reason of (i) any Retained Liability or other liability or obligation of Seller
which is not an Assumed Liability; (ii) the breach of any representation,
warranty, covenant or agreement of Seller contained in this Agreement or in any
document or other writing delivered pursuant to this Agreement (determined for
this purpose as if all references to knowledge and materiality contained in
Section 6 are deleted); and (iii) any and all actions, suits, proceedings,
claims, demands, assessments, judgments, costs and expenses (including without
limitation, interest, penalties, reasonable legal fees and accounting fees)
incident to the foregoing and the enforcement of the provisions of this Section
9.1.
9.2 Subject to the further provisions of this Article, Purchaser
shall protect, defend, hold harmless and indemnify Seller, its partners,
employees and agents, and its successors and assigns from, against and in
respect of any and all Losses that may be suffered or incurred by any of them
arising from or by reason of (i) any of the Assumed Liabilities on and after
the date hereof, (ii) the breach of any representation, warranty, covenant or
agreement of Purchaser contained in this Agreement or in any document or other
writing delivered pursuant to this Agreement; and (iii) any and all actions,
suits, proceedings, claims, demands, assessments,
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judgments, costs and expenses (including without limitation, interest,
penalties, reasonable legal fees and accounting fees) incident to the foregoing
and the enforcement of the provisions of this Section 9.2.
9.3 Whenever a party hereto (such party and each of its
affiliates which is entitled to indemnification pursuant to any provision of
this Agreement, an "Indemnified Party") shall learn after the Closing of a
claim that, if allowed (whether voluntarily or by judicial or quasi-judicial
tribunal or agency), would give rise to an obligation of another party (the
"Indemnifying Party") to indemnify the Indemnified Party under any provision of
this Agreement, before paying the same or agreeing thereto, the Indemnified
Party shall promptly notify the Indemnifying Party in writing of all such facts
within the Indemnified Party's knowledge with respect to such claim and the
amount thereof (a "Notice of Claim"). If, prior to the expiration of fifteen
(15) days from the mailing of a Notice of Claim, the Indemnifying Party shall
request, in writing, that such claim not be paid, the Indemnified Party shall
not pay the same, provided the Indemnifying Party proceeds promptly, at its or
their own expense (including employment of counsel reasonably satisfactory to
the Indemnified Party), to settle, compromise or litigate, in good faith, such
claim. After notice from the Indemnifying Party requesting the Indemnified
Party not to pay such claim and the Indemnifying Party's assumption of the
defense of such claim at its or their expense, the Indemnifying Party shall not
be liable to the Indemnified Party for any legal or other expense subsequently
incurred by the Indemnified Party in connection with the defense thereof.
However, the Indemnified Party shall have the right to participate at its
expense and with counsel of its choice in such settlement, compromise or
litigation. The Indemnified Party shall not be required to refrain from paying
any claim which has matured by a court judgment or decree, unless an
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appeal is duly taken therefrom and execution thereof has been stayed, nor shall
the Indemnified Party be required to refrain from paying any claim where the
delay in paying such claim would result in the foreclosure of a lien upon any
of the property or assets then held by the Indemnified Party. The failure to
provide a timely Notice of Claim as provided in this Section 9.3 shall not
excuse the Indemnifying Party from its or their continuing obligations
hereunder; however, the Indemnified Party's claim shall be reduced by any
damages to the Indemnifying Party resulting from the Indemnified Party's delay
or failure to provide a Notice of Claim as provided in this Section 9.3.
9.4 For purposes of this Article, any assertion of fact and/or
law by a third party that, if true, would constitute a breach of a
representation or warranty made by a party to this Agreement or make
operational an indemnification obligation hereunder, shall, on the date that
such assertion is made, immediately invoke the Indemnifying Party's obligation
to protect, defend, hold harmless and indemnify the Indemnified Party pursuant
to this Article.
10. Bulk Sales. The parties agree to waive the requirements, if any,
of all applicable bulk sales laws. As an inducement to Purchaser to enter into
such waiver, Seller represents and warrants that (a) it will not be rendered
insolvent by the transactions contemplated by this Agreement, and (b) all
debts, obligations and liabilities relating to the Property and Business that
are not expressly assumed by Purchaser under this Agreement will be promptly
paid and discharged by Seller as and when they become due. Seller agrees to
indemnify and hold Purchaser harmless from, and reimburse Purchaser for, any
loss, cost, expense, liability or damage which Purchaser may suffer or incur by
virtue of the noncompliance by Seller or Purchaser with any laws pertaining to
fraudulent conveyance, bulk sales or any similar law which might make the sale
or
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transfer of any part of the Property or Business ineffective as to creditors
of, or claimants against the Seller.
11. Notices. All notices, demands, requests, consents or other
communications ("Notices") which either party may desire or be required to give
to the other hereunder shall be in writing and shall be delivered by hand,
overnight express carrier, or sent by registered or certified mail, return
receipt requested, postage prepaid, in either event, addressed to the parties
at their respective addresses first above set forth. A copy of any Notice given
by Seller to Purchaser shall simultaneously be given in either manner provided
above to Family Golf Centers, Inc. 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx
00000, Attention: Xxxxxx X. Xxxxxxx, General Counsel. A copy of any Notice
given by Purchaser to Seller shall simultaneously be given in either manner
provided above to Xxxxxx X. Xxxxx, P.C., 0000 Xxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxx, Esq. Notices given in the
manner aforesaid shall be deemed to have been given three (3) business days
after the day so mailed, the day after delivery to any overnight express
carrier and on the day so delivered by hand. Either party shall have the right
to change its address(es) for the receipt of Notices by giving Notice to the
other party in either manner aforesaid. Any Notice required or permitted to be
given by either party may be given by that party's attorney.
12. Miscellaneous.
12.1 This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns.
13.2 This Agreement shall be governed by, interpreted under and
construed and enforced in accordance with, the laws of the State of New York.
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12.3 The captions or article headings in this Agreement are for
convenience only and do not constitute part of this Agreement.
12.4 This Agreement has been fully negotiated by the parties and
rules of construction construing ambiguities against the party responsible for
drafting agreements shall not apply.
12.5 It is agreed that, except where otherwise expressly provided
in particular Articles or Sections of this Agreement, none of the provisions of
this Agreement shall survive the Closing.
12.6 This Agreement (including the Exhibits annexed hereto)
contains the entire agreement between the parties with respect to the subject
matter hereof and supercedes all prior understandings, if any, with respect
thereto.
12.7 This Agreement may not be modified, changed, supplemented or
terminated, nor may any obligations hereunder be waived, except by written
instrument signed by the party to be charged or by its agent duly authorized in
writing or as otherwise expressly permitted herein.
12.8 No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof or of any other agreement or provision herein contained. No extension
of the time for performance of any obligations or acts shall be deemed an
extension of the time for performance of any other obligations or acts.
12.9 This Agreement may be executed in one or more counterparts,
each of which when so executed and delivered shall be deemed an original, but
all of which taken together shall constitute but one and the same original.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
SOUTHAMPTOM FAMILY GOLF CENTER,
INC.
By:
-------------------------------------
Name:
Title:
PHILADELPHIA FAMILY GOLF CENTERS,
INC.
By:
-------------------------------------
Name:
Title:
20
