FIRST AMENDMENT TO AGREEMENT OF SALE
This First Amendment to Agreement of Sale (the "Amendment") entered into on
August 11, 2000, between Klak Golf, L.L.C., as Purchaser, and the entities
identified on the signature page hereto, as Seller.
WITNESSETH:
WHEREAS, on August 1, 2000, Seller and Purchaser entered into an Agreement
of Sale (the "Agreement") wherein Seller agreed to sell, assign and convey to
Purchaser, and Purchaser agreed to acquire certain Property, as defined in the
Agreement; and
WHEREAS, Seller and Purchaser desire to amend the Agreement in accordance
with the terms and provisions hereinafter set forth.
NOW, THEREFORE, in consideration of One Dollar and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. All capitalized terms used herein shall have the meanings ascribed to
them in the Agreement.
2. In the event of a conflict between the terms of this Amendment and the
terms and conditions of the Agreement, the terms of this Amendment
shall prevail.
3. The Property designated as Number 342 on Exhibit A of the Agreement
and Number 23 on Exhibit B-1 of the Agreement located at 0000 XX 00xx
Xxxxxx, Xxxxxxxx, Xxxxxx and the Property designated as Number 7 on
Exhibits B-1 and B-2 are hereby removed from the transaction and the
Agreement.
4. Section 1.2 of the Agreement is hereby amended to provide that the
Purchase Price to be paid for the Property shall be $16,150,000.
5. Section 2.1 of the Agreement is hereby deleted in its entirety and
replaced with the following:
Section 2.1 Delivery of Information by Seller. Seller hereby confirms and
agrees that Seller has delivered to Purchaser the following:
(A) a copy of all title commitments for owner's and leasehold title
insurance (collectively, the "TITLE COMMITMENTS") and all surveys (collectively,
the "Surveys") in Seller's possession affecting the Specific Properties;
(B) copies of the Leases, in Seller's possession relating to the Demised
Premises;
(C) a copy of all material and written contracts of management,
maintenance, utility, service, supply or similar contracts or leases in Seller's
possession which affect any of the Property or its operation, and any
amendments, modifications or supplements thereto that create a contingent
liability continuing beyond the Closing or which would otherwise continue beyond
the Closing (the "SERVICE CONTRACTS");
(D) a copy of all "as-built" plans and specifications in Seller's
possession with respect to the Improvements;
(E) a copy of all material licenses and permits in Seller's possession that
are necessary for the ownership, occupancy and operation of the Improvements,
including, without limitation, certificates of occupancy, to the extent
assignable (the "OPERATING PERMITS");
(F) a copy of any hazardous waste inspection reports and environmental site
assessments in Seller's possession with respect to the Property (together with
any updates to these reports and assessments obtained by Purchaser or Seller,
the "Environmental Reports"); and
(G) a copy of all guaranties and warranties, if any, pertaining to the
Building Fixtures in Seller's possession.
The documents described in Section 2.1 are herein collectively called the
"INFORMATIONAL DOCUMENTS" and the information contained in the Informational
Documents is herein collectively called the "INFORMATION").
On or before August 14, 2000, Purchaser shall give Seller written notice of
any objections to matters Purchaser determines, in its reasonable discretion,
materially and adversely affect, for any reason, the marketability or value of
the Property designated as 999, located in Holbrook, Massachusetts (the
"Xxxxxxxx Property"). In the event Purchaser fails to give a written notice to
Seller of such objections by August 14, 2000, Purchaser shall be deemed to have
waived any objections to the Xxxxxxxx Property. In the event Purchaser gives a
written notice to Seller of such objections by August 14, 2000, Purchaser shall
either (1) accept title to the Xxxxxxxx Property in its current condition, in
which event Purchaser's objections shall be deemed to have been waived for all
purposes, or (2) elect to remove the Xxxxxxxx Property from this transaction
only by
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written notice to Seller and the Title Company, in which case,
notwithstanding anything herein to the contrary, the Purchase Price shall be
reduced by $900,000. For purposes of this Section 2.1, a matter which may be
objected to by Purchaser hereunder (an "Objection") shall be deemed "material"
if it would adversely affect the value of the Xxxxxxxx Property by more than
$25,000.
6. Sections 2.2 and 2.4 of the Agreement are hereby deleted in their
entirety.
7. A new Section 2.5 of the Agreement is added as follows:
Section 2.5 "As Is"; Waiver of Objections. Purchaser expressly
acknowledges that except with respect to the Xxxxxxxx Property, it has
concluded its inspection of the Property, including without limitation
the Information contained in the Informational Documents. Purchaser
agrees that, except with respect to the Xxxxxxxx Property, it hereby
waives for all purposes any and all objections of any kind and nature
to the Property and shall accept title to the Property "as is" without
any further reduction to the Purchase Price. In consideration therefor
and for the removal of the Portland, Oregon Property, Seller has agreed
to a reduction of the Purchase Price so that the Purchase Price for the
Property is $16,150,000.
8. The last paragraph of Section 3.1 of the Agreement is hereby deleted
and replaced with the following, "If any of Seller's or Purchaser's
representations or warranties set forth in this Section 3.1 are untrue
in any material respect, then Seller or Purchaser, as the case may be,
shall have the remedies afforded it in Article 7."
9. Section 3.2(j) is hereby amended to provide that, as Purchaser has
waived its right to terminate the Agreement under Section 2.2, Seller
shall, as of the date of this Amendment, provide Purchaser with the
notices required under this subsection and all language in such
subsection after the semicolon is deleted.
10. The last paragraph of Section 4.1 of the Agreement is hereby deleted
and replaced with the following, " If the Conditions set forth in
subsections (a) and (b) of this Section 4.1 are not materially
satisfied as of the Closing Date, Purchaser shall have the right to
terminate the Agreement. If the Conditions set forth in subsections
(c), (d) and (e) are not satisfied as of the Closing Date, either
party shall have the right to terminate the Agreement.
11. Except as herein modified, the parties ratify and affirm the Agreement
and the terms and conditions therein contained.
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12. This Amendment may be executed in a number of identical counterparts,
each of which for all purposes is deemed an original, and all of which
constitute collectively one agreement.
13. Any signature to this Amendment produced via facsimile is deemed an
original signature and is binding upon the parties hereto.
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IN WITNESS WHEREOF, Seller and Purchaser have executed this Amendment on
the dates indicated below.
SELLER:
TEMPE FAMILY GOLF CENTERS, INC. OREINT ASSOCIATES
INTERNATIONAL, INC.
EL CAJON FAMILY GOLF CENTERS, INC. FAMILY GOLF CENTERS, INC.
LODI FAMILY GOLF CENTERS, INC. 82nd AVENUE GOLF RANGE, INC.
GBGC FAMILY GOLF CENTERS, INC. PHILADELPHIA FAMILY GOLF
CENTERS, INC.
SACRAMENTO FAMILY GOLF CENTERS, INC. GREENVILLE FAMILY GOLF
CENTERS, INC.
XXXXXX GOLF CENTER, L.P. EAGLE QUEST GOLF
CENTERS (TEXAS), INC.
MARGATE FAMILY GOLF CENTERS, INC. EAGLE QUEST GOLF
CENTERS (TEXAS II), INC.
BLUE EAGLE OF FLORIDA, INC. FEDERAL WAY FAMILY GOLF
CENTERS, INC.
WEST PALM BEACH FAMILY GOLF EAGLE QUEST GOLF
CENTERS, INC. CENTERS (WASHINGTON), INC.
XXXXXXXX FAMILY GOLF CENTERS, INC. MILWAUKEE FAMILY GOLF
CENTERS, INC.
FLEMINGTON FAMILY GOLF CENTERS, INC. PRECISION COURSE, INC.
COMMACK FAMILY GOLF CENTERS, INC. METROGOLF INCORPORATED
YORKTOWN FAMILY GOLF CENTERS, INC.
By: By:
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Title: Vice President of each of Title: Vice President of each of
the foregoing corporations the foregoing corporations
Signatures Continued on Following Page
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PURCHASER:
KLAK GOLF, L.L.C., a Delaware limited
liability company
By:
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Name:
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Title:
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Date of Execution: , 2000
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