PURCHASE AND SALE AGREEMENT
AGREEMENT, made the 17th day of February, 1997, between XXXXXXXX X. XXXX,
as trustee (the "Trustee") of the chapter 7 bankruptcy estate (the "Estate")
of Colorado Beach and Sport Limited Partnership (the "Debtor"), and ENGLEWOOD
FAMILY GOLF CENTERS, INC. ("Purchaser").
RECITALS
A. Debtor filed a voluntary petition under chapter 7 of the Bankruptcy
Code in the United States Bankruptcy Court for the District of Colorado (the
"Bankruptcy Court") on December 31, 1996, which is pending as Case No.
96-26320-DEC (the "Colorado Beach Bankruptcy Case").
B. The Trustee is the duly appointed trustee for the Estate.
C. Debtor was the owner and operator of a volleyball facility located in
Englewood, Colorado (the "Facility"). The Facility consists of certain
improvements and fixtures (the "Improvements") on real property leased from a
third party (the "Land"). A description of the Land is attached hereto as
EXHIBIT A. Debtor also owned certain personal property used in the operation
of the Facility and related business.
D. The Trustee desires to sell, and Purchaser desires to purchase the
Improvements and the related personal property on the terms and conditions
hereinafter set forth.
AGREEMENT
In consideration of the mutual promises and covenants hereinafter set
forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. SUBJECT MATTER OF SALE. The Trustee agrees to sell to Purchaser and
Purchaser agrees to buy, on the terms and conditions set forth in this
Agreement, all of the property described in paragraph 2 below.
2. PROPERTY. The property to be conveyed to Purchaser at Closing (as
hereinafter defined) (collectively the "Property") includes:
a. The Improvements, together with all appurtenant real property
interests and rights, if any, which shall be conveyed to Purchaser by a
Trustee's Deed substantially in the form attached hereto as EXHIBIT B;
b. All of the Estate's right, title and interest in and to all personal
property located on the Land or in the Improvements (collectively, the
"Personal Property"), which
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shall be transferred to Purchaser by a Xxxx of Sale substantially in the
form attached hereto as EXHIBIT C; and
c. All of the Estate's right, title and interest, in and to that certain
Ground Lease and Agreement, dated as of July 1, 1995, between the Debtor
and Arapahoe County Public Airport Authority (the "Lease") which shall be
conveyed by an Assignment of Ground Lease substantially in the form
attached hereto as EXHIBIT D.
3. PURCHASE PRICE. The purchase price to be paid by Purchaser for the
Property is $700,000.00.
4. TERMS. The terms of payment are as follows:
a. Upon execution of this Agreement, by cash, wire transfer or certified
check, $50,000 as xxxxxxx money.
b. After execution and delivery of the Trustee's Deed, the Xxxx of Sale
and the Assignment of Ground Lease, by cash, wire transfer or certified
check, $650,000.00.
5. LEASE. The Trustee shall seek approval of the assumption and assignment
of the Lease to Purchaser pursuant to 11 U.S.C. Section 365. Purchaser shall
cooperate with the Trustee in, and be responsible for, demonstrating and
providing adequate assurance of the cure of any default and of future
performance under the Lease. In addition to the Purchase Price, the Purchaser
shall make all cure payments under the Lease and do all other acts required
to cure the Lease in an amount not to exceed $30,000.
6. CLOSING DATE. Title shall be closed on a mutually agreeable date no
later than the Effective Date (defined below) at a mutually agreeable time at
the offices of Holden & Xxxxxx, P.C., 000 Xxxx 00xx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000 ("Closing"). Closing shall take place no later than
ninety (90) days from the date of this Agreement, failing which, this
Agreement shall terminate and, so long as Purchaser is not in default, the
Trustee shall return the xxxxxxx money to Purchaser.
7. EFFECTIVE DATE. The term "Effective Date" as used in this Agreement
shall mean the first business day upon which all of the following conditions
have been satisfied:
a. An order (i) approving this Agreement and authorizing the Trustee to
enter into this Agreement and (ii) authorizing the Trustee to assume and
assign the Lease (the "Approval Order") shall have been entered by the
Bankruptcy Court in the Bankruptcy Case;
b. Ten days (as computed in accordance with Fed. R. Bankr. P. 9006) shall
have passed from the entry of the Approval Order; and
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c. The Approval Order (i) shall have become a final, non-appealable
order, or (ii) with respect to any pending appeal of the Approval Order,
shall not have been reversed, remanded, or modified, or (iii) with respect
to any pending appeal of the Approval Order, shall not have been stayed
pending resolution of the appeal.
8. BANKRUPTCY COURT APPROVAL. This Agreement is expressly subject to the
approval of the Bankruptcy Court for the Colorado Beach Bankruptcy Case.
Since the Bankruptcy Court is free to consider higher and better offers in
connection with the approval of this Agreement, the Trustee will seek
approval of reasonable bid procedures which will require any such higher bid
to be (i) from a qualified bidder, (ii) in an amount at least $25,000 greater
than the purchase price set forth herein, (iii) only for the Property, (iv)
free of any contingency items and (v) identical to all other items of this
Agreement.
9. BROKER. The parties agree that no broker brought about this sale.
10. CONDITION OF ASSETS. All of the Property including the Improvements
and the Personal Property sold hereunder are sold "as is" and "where is"
without any warranties, express or implied. Purchaser has made his own
inspection and this purchase is based on said inspection.
11. PERMITTED ENCUMBRANCES. The Property shall be delivered free and clear
of all liens and encumbrances except for the Lease, taxes, sewer and water
charges and other such charges for the current year and any other
encumbrances on the Land (the "Permitted Encumbrances").
12. PRORATIONS. General taxes for the year of Closing, based on the most
recent levy and the most recent assessment, water and sewer charges, if any,
shall be prorated to the date of the Closing. Fees for the real estate
closing and settlement services, if any, shall be paid at closing by
Purchaser. Any sales, use and transfer tax that may accrue because of this
transaction shall be paid by Purchaser.
13. POSSESSION. Possession of the Property shall be delivered to Purchaser
upon completion of the Closing.
14. DAMAGE TO PROPERTY. In the event the Property shall be damaged by fire
or other casualty prior to the date of the Closing, in an amount of not more
than five percent of the total purchase price, the Trustee shall be obligated
to repair the same before the date of Closing. In the event such damage is
not repaired within said time or if the damages exceed such sum, this
Agreement may be terminated at the option of Purchaser. Should Purchaser
elect to carry out this Agreement despite such damage, Purchaser shall be
entitled to credit for all the insurance proceeds resulting from such damage
to the Property, not exceeding, however, the total purchase price. The risk
of loss for any damage to the Property shall be borne by Purchaser once
Purchaser is entitled to possession under the terms of this Agreement.
15. TIME OF ESSENCE. Time is of the essence hereof.
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16. REMEDIES. If any payment due hereunder is not paid, honored or
tendered when due, or if any other obligation hereunder is not performed or
waived as herein provided, there shall be the following remedies:
a. IF PURCHASER IS IN DEFAULT: All payments and things of value received
hereunder shall be forfeited by Purchaser and retained on behalf of
Trustee and both parties shall thereafter be released from all obligations
hereunder.
b. IF THE TRUSTEE IS IN DEFAULT: Purchaser may elect to treat this
Agreement as canceled, in which case all payments and things of value
received hereunder shall be returned or Purchaser may elect to treat this
Agreement as being in full force and effect and Purchaser shall have the
right to specific performance.
c. COSTS AND EXPENSES. Anything to the contrary herein notwithstanding,
in the event of any litigation or arbitration arising out of this
Agreement, the court shall award to the prevailing party all reasonable
costs and expenses, including attorneys' fees.
17. TERMINATION. Purchaser shall have the right to terminate this
Agreement prior to Closing in the event that:
a. the Closing does not take place within ninety (90) days from the date
of this Agreement; or
b. the amount required to be paid in order to cure all defaults under the
Lease exceeds $30,000;
whereupon, so long as Purchaser is not in default, the Trustee shall promptly
return the xxxxxxx money to Purchaser.
18. NOT ASSIGNABLE. This Agreement shall not be assignable by Purchaser
without the Trustee's prior written consent.
19. CAPTIONS. The captions are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the scope of this
Agreement nor the intent of any provision thereof.
20. FURTHER ASSURANCES. From time to time after the Closing, the Trustee
shall, if requested by Purchaser, make, execute and deliver to Purchaser such
additional assignments, bills of sale, deeds and other instruments of
transfer, as may be reasonably necessary or proper to transfer to Purchaser
all of the Estate's right, title and interest in and to the assets and
property covered by this Agreement. Such efforts and assistance shall be
without out of pocket cost to the Trustee. Each party hereto shall cooperate
fully with one another and shall execute such other and further
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documents as may be reasonably necessary or proper for the consummation of
the transactions contemplated by this Agreement.
21. GOVERNING LAW. This Agreement shall be interpreted, governed and
construed in accordance with the laws of the State of Colorado without regard
to conflicts of law.
22. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when so executed shall be an original, but all of
which together shall constitute one agreement. Any execution of this
Agreement or of any other document contemplated herein may be transmitted by
facsimile and treated as an original by the receiving party.
23. SEVERABILITY. If any provision of this Agreement or the application
thereof to any person or circumstance shall be invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
24. SUCCESSORS AND ASSIGNS. The terms, warranties and agreements herein
contained shall bind and inure to the benefit of the respective parties
hereto, and their respective legal representatives, successors and assigns.
25. MODIFICATIONS, WAIVERS, ETC. No waiver, modification, amendment,
discharge or change of this Agreement or any part hereof shall be valid
unless the same is in writing and signed by the party against which the
enforcement of such modification, waiver, amendment, discharge or change is
sought.
IN WITNESS WHEREOF, the Parties have respectively signed and sealed these
presents the day and year first above written.
/s/ Xxxxxxxx X. Xxxx
-------------------------------
Xxxxxxxx X. Xxxx, as Trustee of
the Chapter 7 Bankruptcy Estate
of Colorado Beach and Sport
Limited Partnership
ENGLEWOOD FAMILY GOLF CENTERS,
INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Its: Vice President
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PERFORMANCE GUARANTEE:
The undersigned hereby guarantees the obligations and performance of
Purchaser as set forth in the foregoing Agreement.
Dated this 18th day of February, 1997.
FAMILY GOLF CENTERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Its: Senior Vice-President
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EXHIBITS TO PURCHASE AND SALE AGREEMENT
EXHIBIT DESCRIPTION
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A Legal Description of the Land
B Trustee's Deed
C Xxxx of Sale for Personal Property
D Assignment of Ground Lease
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