FIRST AMENDMENT TO
AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS
THIS AMENDMENT is made this 26th day of February 1997, by Saint Xxxxxxx
Golf Corporation, a Nevada corporation, and Las Vegas Discount Golf and
Tennis, Inc., a Colorado corporation (collectively "Seller"), and Las Vegas
Golf & Tennis, Inc., a Nevada corporation ("Buyer").
RECITALS:
A) Buyer and Seller have executed that Agreement for the Purchase and
Sale of assets dated January 8, 1997 (the "Agreement").
B) Buyer and Seller desire to amend the Agreement to reflect mutually
agreeable changes and certain concerns of Buyer generated by Buyer's due
diligence to date.
Therefore, in consideration of the mutual promises contained below, the
Agreement is amended as follows:
AMENDMENT:
1. The assignment of all franchisor rights under the Franchise
Agreements, provided by paragraph 1.B. of the Agreement, shall specifically
include all receivables from those Franchisees regardless of whether the
receivable accrued or became due prior to Closing ("Franchisee Receivables").
The Purchase Price shall be increased by $112,500.00 as payment for the
Franchise Receivables. Buyer shall have full and sole authority to settle,
discount, write off, or otherwise compromise all Franchise Receivables,
including those which accrued prior to Closing. After Closing, Seller shall
cease all attempts to collect Franchisee Receivables and any Franchisee
Receivables received by the Seller after Closing shall be forwarded to the
Buyer.
2. Trade Payables as defined in the Agreement shall include only those
liabilities which are listed on Attached Exhibit "A."
3. Final proration of Inventory and Trade payables shall be based on
1evels of Inventory and Trade Payables at C1osing. Buyer and Se11er shall
jointly conduct an accounting of Inventory and Trade payables as soon after
Closing as is reasonably practicable. To the extent Inventory exceeds Trade
Payables by $600,000.0O, the Base Purchase Price shall be increased by the
amount Inventory exceeds Trade Payables, 1ess $800,000.00. To the extent
Inventory does not exceed Trade Payables by $600,000.00, the Base Purchase
Price shall be reduced by Trade Payables, plus $800,000.00, less Inventory.
Closing shall occur based on mutually agreeable estimates of Inventory and
Trade at Closing. However, the calculation of the Total Purchase Price shall
be reapportioned as soon as is practical after the completion of the final
accounting of Inventory and Trade Payables following Closing. Upon the
completion of the final accounting for Inventory and Trade Payables, the
monies held in post closing escrow shall be forwarded to the Seller or Buyer,
as the case may be. If the escrow is insufficient to fund the entire balance
owed by Seller to Buyer or Buyer to Seller, such additional monies shall be
due and payable immediately following the release of the escrowed funds.
4. With respect to paragraph 5.F. of the Agreement, Buyer agrees that
when negotiating with landlords for the assumption or replacement of the real
property 1eases Buyer will use its best efforts to remove Seller from
liability for the leases.
5. Paragraph 5.P. of the Agreement shall be amended to read in its
entirety:
The copies of the Franchise Agreements provided to Buyer under separate cover
are true and correct copies of every currently effective franchise agreement
to which the Seller is a party. A true and correct receivables list showing
the total outstanding balance of each franchisee's accounts with the Seller
for franchise royalties, advertising fund contributions, branded merchandise,
and any other goods and services is also included on Exhibit B. Seller
warrants that these documents are true and correct and that Seller has no
knowledge of any claimed offset or defence to these documents.
6. Paragraph 6.B. of the Agreement shall be amended to read in its
entirety:
The execution and delivery of this Agreement does not and the consummation of
the transactions contemplated hereby will not violate any provision of the
documents controlling the operation of the Seller, not violate any provision
of the documents controlling the operation of the Seller, not violate any
provision of the Articles of Incorporation, By-Laws, mortgage, lien,
agreement, instrument, order, judgment or decree to which the Seller is a
party, or whereby it is bound, and will not violate any other restriction of
any other kind or character to which the Seller is subject. The Seller has
taken or will take action required by law, its Articles of Incorporation and
By-Laws, or otherwise, to authorize execution and delivery of this Agreement
and the consummation of the transactions described herein, except for
compliance with the Bulk Sales Act in California. Seller has requested the
Buyer to waive the requirements of the bulk transfer provision of the Uniform
Commercial Code and Buyer has acceded to this request. Seller represents and
warrants that there are no liens, encumbrances or security interests an any of
the Assets that have not been disclosed in Exhibit C, and warrants that the
title conveyed to the Buyer will be free and clear.
7. Paragraph 6.F. of the Agreement shall be amended to read in its
entirety:
There are no actions, suits, or proceedings pending, or to the knowledge of
its officers, threatened against the Seller or any of its properties or any
assets of its business, in law or in equity, which might result in any
judgment, order, injunction or decree having a material or adverse affect upon
its business operations, properties, assets or financial condition.
8. Paragraph 16. of the Agreement shall be amended to read in its
entirety:
All of the representations, warranties, covenants and agreements made in this
Agreement or contained in the certificates or documents furnished in
connection herewith, shall survive the Closing date, and shalt be applicable
and effective, notwithstanding any investigation to or after the Closing date
by the Buyer or the Seller, or their respective agents or representatives. The
representation warranties, covenants and agreements will survive the Closing
Date for up to two (2) years but under no circumstances wild their survival
exceed the applicable statute of limitations.
9. Except as modified by this Amendment, the Agreement shall remain in
full force. In case of Conflicts in the terms of the Agreement and this
Amendment, this Amendment shall control.
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BUYER:
Las Vegas Golf and Tennis, Inc.
a Nevada corporation
By:/s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx Date
Title: President
SELLER:
Las Vegas Discount Golf & Tennis, Inc.
a Colorado corporation
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President
Saint Xxxxxxx Golf Corporation,
a Nevada corporation
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: President
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