PURCHASE AGREEMENT
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by and between
MT. OLIVE GOLF CENTER, INC.
Seller,
and
MT. OLIVE FAMILY GOLF CENTERS, INC.,
Purchaser
PREMISES:
000 Xx. 000
Xxxxxxxx, Xxx Xxxxxx
INDEX OF EXHIBITS AND SCHEDULES
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B PERSONAL PROPERTY
EXHIBIT C CONTRACTS
EXHIBIT D PERMITTED EXCEPTIONS
PURCHASE AGREEMENT
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PURCHASE AGREEMENT, made as of the 21 day of October, 1996 (this
"Agreement"), by and between MT. OLIVE GOLF CENTER, INC., a New Jersey
corporation having an address at 000 Xx. 000, Xxxxxxxx, Xxx Xxxxxx 00000
("Seller"), and MT. OLIVE 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 :
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WHEREAS, Seller is the owner of certain real property located at 000
Xx. 000, Xxxxxxxx, Xxx Xxxxxx 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");
WHEREAS, Seller operates a golf course and related facilities at the
Premises under the name "Mt. Olive Golf Center" (the "Business"); and
WHEREAS, Seller wants to sell the Premises to Purchaser, and
Purchaser wants to purchase the Premises from Seller, on the terms, and
subject to the conditions, set forth herein.
NOW, THEREFORE, in consideration of TEN ($10.00) DOLLARS, the terms
and conditions set forth herein, 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 the Premises;
1.1.2 the easements, rights of way, appurtenances and
other rights and benefits of Seller in and to the Premises, including without
limitation, all of Seller's interest in any air rights, water rights and
irrigation rights;
1.1.3 all furnishings, fixtures, machinery, equipment,
vehicles and personalty attached or appurtenant to or used in connection with
the Premises 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");
1.1.4 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
Premises and the Business (collectively, the "Records");
1.1.5 any consents, authorizations, variances, waivers,
licenses, certificates, permits and approvals held by or granted to Seller in
connection with the ownership of the Premises (collectively, the "Permits");
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1.1.6 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 the extent the same relate solely to any Retained
Assets or Retained Liabilities (as hereinafter defined) (the "Contracts");
1.1.7 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 August 1, 1996 (the "Effective Date");
1.1.8 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
1.1.9 any other properties and assets of every kind and
nature, real or personal, tangible or intangible, relating in any way
whatsoever to the Premises or 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 Effective 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
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1.2.4 any patents, trademarks, trademark registrations,
copyrights, copyright registrations, trade names and all registrations thereof
and all applications 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
Effective Date (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: (A) pay to Seller Three Million Sixty Thousand Dollars ($3,060,000.00),
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 funds; and (B)
cause Family Golf Centers, Inc. (the "Parent") to grant to the Seller, or its
designees, an option (the "Option") to purchase up to 20,000 shares of common
stock, par value $.01 per share, of Parent (the "Common Stock") at an exercise
price of $28.00 per share, pursuant to the Stock Option Agreement dated as of
even date herewith.
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3. Title; Permitted Exceptions. Seller will convey the Property to
Purchaser, free and clear of any and all liens, charges, encumbrances,
mortgages, pledges, security interests, easements, agreements and other
interests and adverse claims (collectively, "Encumbrances"), other than the
matters set forth in Exhibit D attached hereto and made a part hereof (the
"Permitted Exceptions").
4. Apportionments.
4.1 The parties hereto agree that (i) all operating expenses of
Seller relating to the Premises (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 Effective
Date based on the portion of each such expense or revenue attributable to the
period falling on or before the Effective Date on the one hand, which Seller
shall bear the responsibility and benefit of, and the portion of each such
expense or revenue attributable to the period falling after the Effective
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".
4.2 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 Effective 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
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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.
4.3 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").
5. The Closing.
5.1 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").
5.2 At the Closing, Seller shall deliver or cause to be
delivered to Purchaser physical possession of the Property (receipt of which
may be actual or constructive) and the following:
5.2.1 Deed of Bargain and Sale with covenants against
grantor's acts, duly executed and acknowledged by Seller, in proper statutory
form for recording, so as to convey to Purchaser fee simple title to the
Premises, subject to and in accordance with the provisions of this Agreement
(the "Deed");
5.2.2 a xxxx of sale conveying, transferring and selling to
Purchaser all right, title and interest of Seller in and to all of the
Personal Property, which xxxx of sale shall contain a warranty that such
property is free and clear of all Encumbrances other than the Permitted
Exceptions, duly executed and acknowledged by Seller;
5.2.3 an assignment and assumption agreement (the
"Assignment and Assumption Agreement") assigning to Purchaser all of Seller's
right, title and
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interest in and to the Contracts, the Permits and the Claims, duly executed
and acknowledged by Seller;
5.2.4 a settlement statement (the "Settlement Statement")
setting forth the amounts paid by or on behalf of and/or credited to each of
Purchaser and Seller pursuant to this Agreement;
5.2.5 an owner's affidavit of title;
5.2.6 a Certificate or Certificates of Occupancy for all
Improvements;
5.2.7 original counterparts of each of the Contracts;
5.2.8 any transfer tax or other return required by any
applicable governmental authority in connection with the sale of the Property,
duly executed and acknowledged by Seller;
5.2.9 an affidavit (the "FIRPTA Affidavit") duly executed
and acknowledged by Seller pursuant to Section 1445 (b)(2) of the Internal
Revenue Code of 1986, as amended, stating that Seller is not a foreign person
within the meaning of such provision;
5.2.10 keys to all locks relating to the Property,
appropriately labeled;
5.2.11 all other instruments and documents to be executed,
acknowledged where appropriate and/or delivered by Seller to Purchaser
pursuant to any of the other provisions of this Agreement; and
5.2.12 such other documents as may be reasonably required
by Purchaser's counsel in connection with this transaction.
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5.3 At the Closing, Purchaser shall deliver or cause to be
delivered to Seller the following:
5.3.1 the cash consideration referred to in Section 2
hereof;
5.3.2 the Stock Option Agreement referred to in Section 2
hereof;
5.3.3 the Assignment and Assumption Agreement, duly
executed and acknowledged by Purchaser;
5.3.4 the Settlement Statement, duly executed and
acknowledged by Purchaser;
5.3.5 all other instruments and documents to be executed,
acknowledged where appropriate and/or delivered by Purchaser to Seller; and
5.3.6 such other documents as may be reasonably required by
Seller's counsel in connection with this transaction.
6. Representations and Warranties.
6.1 Seller represents and warrants to Purchaser as follows:
6.1.1 Organization; Power and Authority. Seller is a
corporation duly formed, validly existing and in good standing under the laws
of the State of New Jersey, 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.
6.1.2 Due Authorization and Execution; Effect of Agreement.
The execution, delivery and performance by Seller of this Agreement and the
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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.
6.1.3 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.
6.1.4 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 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.
The Premises are not subject to any notice of violation of law, municipal
ordinance, orders or
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requirements issued by any building department or other governmental agency or
subdivision having jurisdiction.
6.1.5 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, any of the Permitted Exceptions, site plan
approvals, zoning or subdivision regulations or urban redevelopment plans
applicable to the Premises.
6.1.6 Title to Assets. Seller has good and marketable title
to the Property free and clear of all Encumbrances other than the Permitted
Exceptions.
6.1.7 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 (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
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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.
6.1.8 Condition of the Improvements. There are no material
structural or mechanical defects in the Improvements, and there are no leaks
in any roof on any Improvement.
6.1.9 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.
6.1.10 Environmental Matters.
6.1.10.1 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. [section] 9601(33); (ii) any "pollutant or
contaminant" as defined in 42 U.S.C. [section] 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 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.
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6.1.10.2 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.
6.1.10.3 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").
6.1.10.4 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 liability under the Environmental Laws in
respect of the Premises.
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6.1.10.5 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. [section] 9601(9), or any
comparable list maintained by any foreign, state or local government
authority.
6.1.10.6 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.
6.1.11 Tax Proceedings. There are no proceedings pending
regarding the reduction of real estate taxes or assessments in respect of the
Premises.
6.1.12 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.
6.1.13 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. All roads bounding the Premises are public roads
and the Deed is the only instrument necessary to convey to Purchaser full
access to and the right to use such roads freely as well as to convey all
rights appurtenant to the Premises in such roads.
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6.1.14 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.
6.1.15 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.
6.1.16 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.
6.1.17 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.
6.1.18 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.
6.1.19 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, 1995; (2) unaudited statements for the
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quarters ended March 31, 1996, June 30, 1996 and September 30, 1996; and (3)
internal reports for the months ended July 31, August 31, and September 30,
1996 and for the period commencing October 1, 1996 through the date
immediately prior to 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,
1995 and since September 30, 1996: (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.
6.1.20 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.
6.2 Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to Seller as follows:
6.2.1 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
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conducted, to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby.
6.2.2 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.
6.3 Survival. The representations and warranties of the parties
made in this Article 6 shall survive the Closing.
7. 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
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Agreement and to further consummate the transactions contemplated by this
Agreement. This Article shall survive the Closing.
8. 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 Xxxx Xxxxxxx (the
"Broker"). 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 Broker who claims to have dealt with the
indemnifying party in connection with this transaction. Seller agrees to pay
Broker any commissions due the Broker in connection with this transaction
pursuant to a separate agreement or agreements between Seller and the Broker.
The provisions of this Article shall survive the Closing or any termination of
this Agreement.
9. Costs and Fees. Documentary stamps for the Deed, deed transfer or
conveyancing taxes, if any, and the cost of a survey of the Property, an audit
of the Seller and a Phase I environmental study shall be payable by Seller,
and in no event be payable by Purchaser. Purchaser shall pay the expenses
incurred in connection with (a) the examination of title, and (b) the issuance
of a policy of title insurance for Purchaser. 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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10. Indemnification.
10.1 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 10.1.
10.2 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, judgments,
costs and expenses (including without limitation, interest, penalties,
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reasonable legal fees and accounting fees) incident to the foregoing and the
enforcement of the provisions of this Section 10.2.
10.3 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 appeal is duly taken therefrom and execution
thereof has been stayed, nor shall the Indemnified Party be required
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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 10.3 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 10.3.
10.4 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.
11. 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 transfer of any part of the Property or Business ineffective as to
creditors of, or claimants against the Seller.
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12. 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 Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxx, Esq. A
copy of any Notice given by Purchaser to Seller shall simultaneously be given
in either manner provided above to O'Donell, Kennedy, Vespole, Piechta &
Trifiolis, 000 Xxxxx Xxxx Xxxxxx, Xxxx Xxxxxx, Xxx Xxxxxx 00000, Attention:
Xxxx X'Xxxxxx, 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.
13. Miscellaneous.
13.1 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.
13.3 The captions or article headings in this Agreement are for
convenience only and do not constitute part of this Agreement.
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13.4 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.
13.5 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.
13.6 This Agreement (including the Exhibits annexed hereto)
contains the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior understandings, if any, with respect
thereto.
13.7 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.
13.8 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.
13.9 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
MT. OLIVE GOLF CENTER, INC.
By:
---------------------------
Name:
Title:
MT. OLIVE FAMILY
GOLF CENTERS, INC.
By:
---------------------------
Name:
Title:
- 23 -
EXHIBIT A
LEGAL DESCRIPTION
All the real property located in the Township of Mount Olive,
County of Xxxxxx, State of New Jersey and more particularly described as
follows:
BEGINNING at a point in the Easterly line of New Jersey State
Highway Route No. 206, said point being distant 250.00 feet Northeasterly from
the beginning corner of parcel No. 3 described in a deed from Flanders Holding
Company, Inc., to Xxxxxxx X. Xxxx, et als., dated April 26, 1966 and recorded
in the Xxxxxx County Clerk's Office in Book 1984 of Deeds, Page 915 and
extending thence:
1. Along the Xxxxxxxx xxxxxxxx xx xxxx Xxxxxxx, Xxxxx 00 degrees 43
minutes 10 seconds East 945.70 feet to the second corner of a
tract of 0.982 acres conveyed to Xxxxxx Xxxxx, Xx., and Xxxx X.
Xxxxx, his wife, by Xxxxxx X. Xxxxxxxx, widow of Xxxxx X.
Xxxxxxxx, by deed dated August 9, 1950 and recorded in the
Xxxxxx County Clerk's Office in Book Z51 of Deeds, at page 565;
thence
2. Leaving said Highway and along the second course of the aforesaid
Xxxxx Tract, South 45 degrees 16 minutes 50 seconds East 200.00 feet
to the third corner of said tract; thence
3. Along the third course of the aforesaid Xxxxx tract, North 44 degrees
43 minutes 10 seconds East 301.63 feet to the Fourth corner of said
Xxxxx tract in the fourth course of the first tract as described in a
deed from Xxxxxxxx X. Xxxxxxx and wife, to Xxxxx X. Xxxxxxxx, dated
March 19, 1910 and recorded in the Xxxxxx County Clerk's Office in
Book H-20 of deeds, Pages 84 &c; and in a line of lands of Laurel;
thence
4. Partly along the fourth course of said first tract and the fifth
course of said first tract and said line of lands of Laurel,
South 86 degrees 34 minutes 08 seconds East 486.54 feet to the
sixth corner of said first tract, also a corner to Laurel;
thence
5. Along the sixth course of said first tract and a line of lands
of Laurel, North 78 degrees 16 minutes 52 seconds East 382.25
feet to the seventh corner of said first tract also a corner of
Laurel and marked by a large white oak tree; thence
6. Along the seventh course of said first tract and a line of lands
of Laurel, South 26 degrees 58 minutes 20 seconds East 266.04
feet to the point where said seventh course intersects the
Northwesterly right of way line of the Central Railroad of New
Jersey, formerly the Longwood Valley Railroad; thence
7. Along said Northwesterly right xx xxx xxxx, Xxxxx 00 degrees 09
minutes 30 seconds West 830.50 feet to a point; thence
8. Still along said Northwesterly right xx xxx xxxx, Xxxxx 00
degrees 56 minutes 50 seconds West 331.58 feet to the point of
curvature of a curve to the left having a radius of 5780.00
feet; thence
9. Still along said Northwesterly right of way line and said curve
to the left, a distance of 686.33 feet to a point; thence
10. Through lands of the parties of the first part, North 45 degrees
16 minutes 50 seconds West 563.94 feet to the point and place of
BEGINNING.
NOTE: Being known and designated as Xxx 00, Xxxxx 0000 on the Tax Map of the
Township of Mt. Olive.
EXHIBIT B
PERSONAL PROPERTY
1. Lawnmower (1)
2. Club Car (1)
3. 45,000 range balls, approximately
4. Satellite dish (1)
5. Television (1)
6. Apple computer (1)
7. Cash register (2)
8. Various fixtures
9. desk (1)
10. files
EXHIBIT C
CONTRACTS
1. Equipment Lease, dated October 1994, between Dealers Credit, Incorporated
and Mt. Olive Golf Center.
EXHIBIT D
PERMITTED EXCEPTIONS
1. Utility grants contained in Deed Book C-31, Page 495, Deed Book C-31,
Page 498, Deed Book Y-33, Page 210 and Deed Book 2289, Page 829.T's 11,
12 13 14.
2. Stream encroachment permit as contained in Deed Book 3165, Page 135.T 15
3. Based upon a survey made by Xxxxx X. Xxxxx, dated October 11, 1996, the
company hereby insures against loss or damage which the insured shall
sustain by reason of any encroachments, overlaps, boundary line disputes
or easements, except as follows:
A. Mislocation of granite block curb along property lines.
B. Rights of other into the existing stream located on the property.
