EX-10.52 3 dex1052.htm AGREEMENT OF SALE AND PURCHASE Agreement of Sale and Purchase dated as of November 16, 2006 among Golf Course Partners, Ltd., EAGL Mansfield, L.P., Evergreen Alliance Golf Limited, L.P., Westbrook EAGL Parent, L.L.C. and CNL...
EXHIBIT 10.52
Agreement of Sale and Purchase dated as of November 16, 2006
among
Golf Course Partners, Ltd.,
EAGL Mansfield, L.P.,
Evergreen Alliance Golf Limited, L.P.,
Xxxxxxxxx EAGL Parent, L.L.C.
and CNL Income Partners, LP
AGREEMENT OF SALE AND PURCHASE
among
GOLF COURSE PARTNERS, LTD.,
a Texas limited partnership (“Lake Seller”)
EAGL MANSFIELD, L.P.,
a Delaware limited partnership (“Mansfield Seller”)
EVERGREEEN ALLIANCE GOLF LIMITED, L.P.,
a Delaware limited partnership (“EAGL”) and
collectively “Seller”
and
XXXXXXXXX EAGL PARENT, L.L.C.,
A Delaware limited liability company (“EAGL Parent”)
and
CNL INCOME PARTNERS, LP
a Delaware limited partnership
“Buyer”
with Escrow Instructions for
The Talon Group, a division of First American Title Insurance Company,
as Escrow Agent
Table of Contents
Page | ||||
ARTICLE 1 | 1 | |||
Section 1.1 | 1 | |||
Section 1.2 | Rules of Construction | 10 | ||
ARTICLE 2 | THE PROPERTY | 10 | ||
Section 2.1 | Lake Park Golf Club | 10 | ||
Section 2.2 | Mansfield National Golf Club | 12 | ||
ARTICLE 3 | 14 | |||
Section 3.1 | Agreement of Purchase and Sale | 14 | ||
Section 3.2 | Purchase Price | 14 | ||
Section 3.3 | Deposit | 14 | ||
Section 3.4 | Independent Consideration | 15 | ||
Section 3.5 | Indivisible Economic Package | 15 | ||
Section 3.6 | Assumption of Obligations/Retained Liabilities/Assumed Liabilities | 15 | ||
Section 3.7 | Right of First Offer | 16 | ||
Section 3.8 | Termination of or Default Under Fund IV Asset Purchase Agreement and/or the Fund III Entity Purchase Agreement | 16 | ||
Section 3.9 | Certain Assets to Premier | 16 | ||
Section 3.10 | Additional EAGL Conveyances | 16 | ||
ARTICLE 4 | 17 | |||
Section 4.1 | Buyer’s Inspections and Due Diligence | 17 | ||
Section 4.2 | Delivery Period | 17 | ||
Section 4.3 | Deliveries | 19 | ||
Section 4.4 | Excluded Property Records | 19 | ||
Section 4.5 | Site Visits | 19 | ||
Section 4.6 | Due Diligence Indemnity | 20 | ||
Section 4.7 | Confidentiality | 20 | ||
Section 4.8 | Due Diligence Period | 20 |
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Section 4.9 | Buyer’s Conditions | 21 | ||
Section 4.10 | Consents | 21 | ||
Section 4.11 | Inventories | 21 | ||
ARTICLE 5 | TITLE AND SURVEY | 22 | ||
Section 5.1 | Title to Real Property | 22 | ||
Section 5.2 | Certain Exceptions to Title | 22 | ||
Section 5.3 | Title Insurance | 23 | ||
Section 5.4 | Conveyance of Real Property | 24 | ||
ARTICLE 6 | REMEDIES AND DEPOSIT INSTRUCTIONS | 24 | ||
Section 6.1 | Permitted Termination; Seller Default | 24 | ||
Section 6.2 | Buyer Default; Liquidated Damages | 25 | ||
Section 6.3 | Deposit Instructions | 26 | ||
Section 6.4 | Designation of Reporting Person | 26 | ||
ARTICLE 7 | REPRESENTATIONS AND WARRANTIES OF SELLER | 27 | ||
Section 7.1 | Representations and Warranties of Seller | 27 | ||
Section 7.2 | Representations and Warranties of EAGL Parent | 30 | ||
Section 7.3 | Limited Liability | 34 | ||
Section 7.4 | Knowledge | 34 | ||
Section 7.5 | Liability of Representations and Warranties | 34 | ||
ARTICLE 8 | REPRESENTATIONS AND WARRANTIES OF BUYER | 35 | ||
Section 8.1 | Buyer’s Representations and Warranties | 35 | ||
Section 8.2 | Buyer’s Independent Investigation | 37 | ||
Section 8.3 | Buyer’s Release of Seller | 39 | ||
Section 8.4 | Discharge | 41 | ||
ARTICLE 9 | MAINTENANCE OF PROPERTY | 41 | ||
Section 9.1 | Certain Interim Operating Covenants | 41 | ||
Section 9.2 | Liquor Licenses | 42 |
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ARTICLE 10 | CLOSING AND CONDITIONS | 43 | ||
Section 10.1 | Escrow Instructions | 43 | ||
Section 10.2 | Closing | 43 | ||
Section 10.3 | Seller’s Closing Documents and Other Items | 43 | ||
Section 10.4 | Buyer’s Closing Documents and Other Items | 45 | ||
Section 10.5 | Actions at Closing | 46 | ||
Section 10.6 | Prorations and Closing Costs | 46 | ||
Section 10.7 | Broker | 49 | ||
Section 10.8 | Expenses | 49 | ||
Section 10.9 | Estoppel Certificate | 49 | ||
ARTICLE 11 | MISCELLANEOUS | 49 | ||
Section 11.1 | Amendment and Modification | 49 | ||
Section 11.2 | Risk of Loss and Insurance Proceeds | 49 | ||
Section 11.3 | Notices | 51 | ||
Section 11.4 | Assignment | 52 | ||
Section 11.5 | Governing Law and Consent to Jurisdiction | 52 | ||
Section 11.6 | Counterparts | 52 | ||
Section 11.7 | Entire Agreement | 53 | ||
Section 11.8 | Severability | 53 | ||
Section 10.9 | Attorney Fees | 53 | ||
Section 11.10 | Payment of Fees and Expenses | 53 | ||
Section 11.11 | Confidential Information | 53 | ||
Section 11.12 | No Joint Venture | 54 | ||
Section 11.13 | Waiver of Jury Trial | 54 | ||
Section 11.14 | Limited Liability | 54 | ||
Section 11.15 | Time of Essence | 54 | ||
Section 11.16 | No Waiver | 54 | ||
Section 11.17 | No Recordation | 54 | ||
Section 11.18 | Tax Disclosures | 54 |
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AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this “Agreement”), dated as of November 16, 2006, is among GOLF COURSE PARTNERS, LTD., a Texas limited partnership (“Lake Seller”), EAGL MANSFIELD, L.P., a Delaware limited partnership (“Mansfield Seller”), EVERGREEN ALLIANCE GOLF LIMITED, L.P., a Delaware limited partnership (“EAGL”) (collectively, “Seller”), and XXXXXXXXX EAGL PARENT, L.L.C., a Delaware limited liability company (“EAGL Parent”) and CNL INCOME PARTNERS, LP, a Delaware limited partnership (“Buyer”).
WHEREAS, Lake Seller is the concessionaire for real property located in Lewisville, Texas, commonly known as Lake Park Golf Club (“Lake Park Golf Club”), and more particularly described in Exhibit A-1 attached hereto (the “Lake Land”). The Lake Land is currently improved with an 18-hole daily fee golf course, clubhouse, event pavilion, maintenance building, cart barn and other improvements; and
WHEREAS, Mansfield Seller is the lessee for certain real property located in Mansfield, Texas, commonly known as “Mansfield National Golf Club” (“Mansfield National Golf Club”), and more particularly described in Exhibit A-2 attached hereto (the “Mansfield Land”). The Mansfield Land is currently improved with an 18-hole daily fee golf course, clubhouse, events facility, maintenance building, cart barn and other improvements;
ARTICLE 1 - CERTAIN DEFINITIONS
Section 1.1 Definitions. The parties hereby agree that the following terms shall have the meanings hereinafter set forth, such definitions to be applicable equally to the singular and plural forms, and to the masculine and feminine forms, of such terms:
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1.1.1 “Affiliate” shall mean the any person or entity that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with Buyer or Seller, as the case may be. For the purposes of this definition, “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have the meanings correlative to the foregoing.
1.1.2 “Applicable Laws” shall mean (i) all statutes, laws, common law, rules, regulations, ordinances, codes or other legal requirements of any Governmental Entity, stock exchange, board of fire underwriters and similar quasi-governmental authority, and (ii) any judgment, injunction, order or other similar requirement of any court or other adjudicatory authority, in effect at the time in question and in each case to the extent the Person or property in question is subject to the same.
1.1.3 “Army Corps Lease” shall mean that certain document listed on Schedule 1.1.3.
1.1.4 “Assignment and Assumption of Cowboys GP Interest” shall have the meaning ascribed in Section 10.3.8.
1.1.5 “Assignment and Assumption of Cowboys LP Interest” shall have the meaning ascribed in Section 10.3.9.
1.1.6 “Assignment and Assumption of Lake Concession Agreement” shall have the meaning ascribed in Section 10.3.1.
1.1.7 Intentionally Omitted.
1.1.8 “Assignment and Assumption of Mansfield Lease Agreement” shall have the meaning ascribed in Section 10.3.2.
1.1.9 “Assignments and Assumptions of Contracts” shall have the meaning ascribed in Section 10.3.5.
1.1.10 “Bankruptcy Code” shall have the meaning ascribed in Section 7.1(h).
1.1.11 “Xxxx of Sale and Assignment Agreements” shall have the meaning ascribed in Section 10.3.4.
1.1.12 “Broker” shall mean Secured Capital LLC.
1.1.13 “Broker’s Commission” shall have the meaning ascribed in Section 10.7.
1.1.14 “BSA” shall have the meaning ascribed in Section 8.1(f).
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1.1.15 “Business Days” or “business days” shall mean Monday-Friday, unless a nationally recognized banking holiday.
1.1.16 “Buyer’s Indemnity” shall have the meaning ascribed in Section 3.6.2.
1.1.17 “Close Associate” shall have the meaning ascribed in Section 8.1(h).
1.1.18 “Closing” shall have the meaning ascribed in Section 10.2.
1.1.19 “Closing Date” shall mean the date set forth in Section 10.2.
1.1.20 “Closing Statements” shall have the meaning ascribed in Section 10.6.2.
1.1.21 “Code” shall have the meaning ascribed in Section 6.4.
1.1.22 “Contracts” shall mean: (a) the leases, contracts and other agreements pertaining to the ownership, operation, management, maintenance and use with respect to Lake Park Golf Club (the “Lake Contracts”), including without limitation, (i) those set forth in Schedule 1.1.22(a), and (ii) the tournament, banquet, meeting and other advance bookings to be held at the Lake Park Golf Club on or after the Closing Date listed in Schedule 1.1.22(a)(i), and (b) the leases, contracts and other agreements pertaining to the ownership, operation, management, maintenance and use with respect to Mansfield National Golf Club (the “Mansfield Contracts”), including without limitation, (i) those set forth in Schedule 1.1.22(b), and (ii) the tournament, banquet, meeting and other advance bookings to be held at the Mansfield National Golf Club on or after the Closing Date listed in Schedule 1.1.22(b)(i). Contracts shall additionally be deemed to include EAGL cards, annual or other periodic passes, membership agreements, discount programs, trade out agreements and similar agreements (collectively, “Golf Play Agreements”) including, without limitation, those set forth on Schedule 1.1.22(c), and contracts entered into pursuant to Section 9.1.
1.1.23 “Cowboys Contracts” (a) the leases, contracts and other agreements pertaining to the ownership, operation, management, maintenance and use with respect to Cowboys Golf Club, including without limitation, (i) those set forth in Schedule 1.1.23(a), and (ii) the tournament, banquet, meeting and other advance bookings to be held at Cowboys Golf Club on or after the Closing Date listed in Schedule 1.1.23(a)(i).
1.1.24 “Cowboys Golf Club” shall mean that certain property located in Grapevine, Texas commonly known as Cowboys Golf Club.
1.1.25 “Cowboys GP” shall have the meaning set forth in the Recitals.
1.1.26 “Cowboys GP Interest” shall mean the meaning set forth in the Recitals.
1.1.27 “Cowboys LP Interest” shall have the meaning set forth in the Recitals.
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1.1.28 “Cowboys Partnership” shall mean Grapevine Golf Club, L.P.
1.1.29 “Cowboys Ownership Interests” shall have the meaning set forth in the Recitals.
1.1.30 “Days” or “days” shall mean calendar days.
1.1.31 “Deposit” shall have the meaning ascribed in Section 3.3.
1.1.32 “Disclosure Items” shall have the meaning ascribed in Section 7.1.
1.1.33 “Due Diligence” shall have the meaning ascribed in Section 4.1.
1.1.34 “Due Diligence Items” shall have the meaning ascribed in Section 4.2.
1.1.35 “Due Diligence Period” shall mean the time period provided for in Section 4.1 of this Agreement.
1.1.36 “EAGL” shall mean Evergreen Alliance Golf Limited, L.P., a Delaware limited partnership.
1.1.37 “EAGL Parent” shall mean Xxxxxxxxx EAGL Parent, L.L.C., a Delaware limited liability company.
1.1.38 “Effluent Discharge Rights” shall mean the Lake Effluent Discharge Rights and Mansfield Effluent Discharge Rights.
1.1.39 “Effective Date” shall mean November 16, 2006, 2006.
1.1.40 “Environmental Claims” shall mean all claims for reimbursement, remediation, abatement, removal, clean up, contribution, personal injury, property damage or damage to natural resources made by any Governmental Entity or other Person arising from or in connection with the (i) presence or actual or potential spill, leak, emission, discharge or release of any Hazardous Substances over, on, in, under or from the Real Property, or (ii) violation of any Environmental Laws with respect to the Real Property or any portion thereof.
1.1.41 “Environmental Laws” means all federal, state and local environmental laws, rules, statutes, directives, binding written interpretations, binding written policies, ordinances and regulations issued by any Governmental Entity and in effect as of the date of this Agreement with respect to or which otherwise pertain to or affect the Land or the Improvements, or any portion thereof, the use, ownership, occupancy or operation of the Land or the Improvements, or any portion thereof, or any owner of the Land, and as same have been amended, modified or supplemented from time to time prior to the date of this Agreement, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.), the Hazardous Substances Transportation Act (49 U.S.C. § 1802 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the
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Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Safe Drinking Water Act (42 U.S.C. § 300f et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. § 11001 et seq.), the Radon and Indoor Air Quality Research Act (42 U.S.C. § 7401 note, et seq.), the Superfund Amendment Reauthorization Act of 1986 (42 U.S.C. § 9601 et seq.), comparable state and local laws, and any and all rules and regulations which have become effective prior to the date of this Agreement under any and all of the aforementioned laws.
1.1.42 “Escrow Agent” shall mean The Talon Group, a division of First American Title Insurance Company, Attention: Xxxxxxx Xxxxx.
1.1.43 “Excluded EAGL Entities and Interests” shall mean (i) Excluded Property Records with regard to EAGL and (ii) Golf Course Partners, Ltd., EAGL Mansfield, L.P., EAGL Xxxxxxxxx XX, LLC, EAGL Tregaron, L.P., EAGL Tregaron GP, LLC, Golf Beverages, Inc., EAGL Acquisition Holdings, L.P. and EAGL Acquisition GP, LLC (collectively, the “Excluded Entities”).
1.1.44 “Excluded Property” shall mean (i) Seller’s Excluded Property Records (but copies of all such non-proprietary books and records needed by Buyer in connection with its post-Closing operations of the Property will be provided to Buyer, (ii) Seller’s cash (whether held by Seller or Seller’s Affiliates), (iii) Seller’s utility deposits, (iv) Seller’s certificates of deposit, (v) Seller’s name(s) and logo(s), but not the Marks and Logos (vi) all product and service warranties and guaranties to the extent relating to the period on or before the Closing, (vii) all rights and benefits under the Contracts to the extent relating to the period on or before the Closing, and (viii) other items described on Schedule 1.1.44 attached hereto.
1.1.45 “Excluded Property Records” shall have the meaning ascribed in Section 4.4.
1.1.46 “Existing Surveys” shall mean those certain existing surveys of the Land and Improvements more particularly described on Exhibit C attached hereto.
1.1.47 “Fund IV Asset Purchase Agreement” shall mean that certain Agreement of Purchase and Sale between Buyer and FUND IV EAGL CANYON SPRINGS, L.P.; EAGL FUND IV CANYON SPRINGS LESSEE, L.P.; FUND IV EAGL CINCO RANCH, L.P.; EAGL FUND IV CINCO RANCH LESSEE, L.P.; FUND IV EAGL FOSSIL CREEK, L.P.; EAGL FUND IV FOSSIL CREEK LESSEE, L.P.; FUND IV EAGL PLANTATION, L.P.; EAGL FUND IV PLANTATION RESORT LESSEE, L.P.; FUND IV EAGL CLEAR CREEK, L.P. and EAGL FUND IV CLEAR CREEK LESSEE, L.P.
1.1.48 “Fund III Entity Purchase Agreement” shall mean that certain Agreement of Sale and Purchase (Limited Liability Company Interests) between Premier and Xxxxxxxxx EAGL Parent and EAGL GP, L.L.C.
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1.1.49 “Golf Clubs” shall mean collectively, Lake Park Golf Club and Mansfield National Golf Club.
1.1.50 “Goods and Inventory” shall mean the Lake Goods and Inventory and the Mansfield Goods and Inventory.
1.1.51 “Governmental Entity” means the various governmental and quasi- governmental bodies or agencies having jurisdiction over Seller, the Real Property or any portion thereof.
1.1.52 “Hazardous Materials” means any pollutants, contaminants, hazardous or toxic substances, materials or wastes (including petroleum, petroleum by-products, radon, asbestos and asbestos containing materials, polychlorinated biphenyls (“PCBs”), PCB-containing equipment, radioactive elements, infectious agents, and urea formaldehyde), as such terms are used in any Environmental Laws (excluding solvents, cleaning fluids and other lawful substances stored and used in the ordinary operation and maintenance of the Land.
1.1.53 “Immediate Family Member” shall have the meaning ascribed in Section 8.1(h).
1.1.54 “Improvements” shall mean the Lake Improvements and the Mansfield Improvements.
1.1.55 “Independent Consideration” shall have the meaning ascribed in Section 3.4.
1.1.56 “Intangible Personal Property” shall mean the Lake Intangible Personal Property and the Mansfield Intangible Personal Property.
1.1.57 “Interim Liquor Management Agreement” shall have the meaning ascribed in Section 9.2.3.
1.1.58 “Lake Contracts” shall have the meaning ascribed in Section 1.1.22.
1.1.59 “Lake Effluent Discharge Rights” shall have the meaning ascribed in Section 2.1.5.
1.1.60 “Lake Goods and Inventory” shall have the meaning ascribed in Section 2.1.3(b).
1.1.61 “Lake Intangible Personal Property” shall have the meaning ascribed in Section 2.1.4.
1.1.62 “Lake Land” shall have the meaning ascribed in the Recitals.
1.1.63 “Lake Concession Agreement” shall have the meaning ascribed in Section 2.1.1.
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1.1.64 “Lake Personal Property” shall mean the Lake Tangible Personal Property and the Lake Intangible Personal Property.
1.1.65 “Lake Property” shall have the meaning ascribed in Section 2.1.
1.1.66 “Lake Park Golf Club” shall have the meaning ascribed in the Recitals.
1.1.67 “Lake Seller” shall have the meaning ascribed in the Recitals.
1.1.68 “Lake Tangible Personal Property” shall have the meaning ascribed in Section 2.1.3.
1.1.69 “Lake Water Rights” shall have the meaning ascribed in Section 2.1.2.
1.1.70 “Land” shall mean the Lake Land and the Mansfield Land.
1.1.71 “Liability” shall mean any liability, obligation, damage, loss, diminution in value, cost or expense of any kind or nature whatsoever, whether accrued or unaccrued, actual or contingent, known or unknown, foreseen or unforeseen and “Liabilities” has a corresponding meaning.
1.1.72 “Licensee Parties” shall mean those authorized agents, contractors, consultants and representatives of Buyer who shall inspect, investigate, test or evaluate the Property on behalf of Buyer in accordance with this Agreement.
1.1.73 “Licenses and Permits” shall have the meaning ascribed in Section 4.2(a).
1.1.74 “Mansfield Contracts” shall have the meaning ascribed in Section 1.1.22.
1.1.75 Intentionally Omitted.
1.1.76 “Mansfield Effluent Discharge Rights” shall have the meaning ascribed in Section 2.2.5.
1.1.77 “Mansfield Goods and Inventory” shall have the meaning ascribed in Section 2.2.3(b).
1.1.78 “Mansfield Intangible Personal Property” shall have the meaning ascribed in Section 2.2.4.
1.1.79 “Mansfield Land” shall have the meaning ascribed in the Recitals.
1.1.80 “Mansfield Lease Agreement” shall have the meaning ascribed in Section 2.2.1.
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1.1.81 “Mansfield Personal Property” shall mean the Mansfield Tangible Personal Property and the Mansfield Intangible Personal Property.
1.1.82 “Mansfield Property” shall have the meaning ascribed in Section 2.2.
1.1.83 “Mansfield National Golf Club” shall have the meaning ascribed in the Recitals.
1.1.84 “Mansfield Seller” shall have the meaning ascribed in the Recitals.
1.1.85 “Mansfield Tangible Personal Property” shall have the meaning ascribed in Section 2.2.3.
1.1.86 “Mansfield Water Rights” shall have the meaning ascribed in Section 2.2.2.
1.1.87 “Marks and Logos” shall mean the Lake Marks and Logos and the Mansfield Marks and Logos.
1.1.88 “OFAC” shall mean the Office of Foreign Assets Control of the United States Department of the Treasury.
1.1.89 “OFAC List” shall mean any list of prohibited countries, individuals, organizations and entities that is administered or maintained by OFAC, including: (i) Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), any related enabling legislation or any other similar executive orders, (ii) the List of Specially Designated Nationals and Blocked Persons maintained by OFAC, and/or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, or (iii) a “Designated National” as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515.
1.1.90 “Ordinary Course of Business” shall mean the ordinary course of business consistent with the Seller’s past custom and practice for the Property, taking into account the facts and circumstances in existence from time to time.
1.1.91 “Patriot Act” shall have the meaning ascribed in Section 8.1(f).
1.1.92 “Permitted Encumbrances” shall have the meaning ascribed in Section 5.2.
1.1.93 “Permitted Outside Parties” shall have the meaning ascribed in Section 4.7.
1.1.94 “Person” shall mean any natural person, firm, corporation, general or limited partnership, limited liability company, association, joint venture, trust, estate, Governmental Entity or other legal entity, in each case whether in its own or a representative capacity.
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1.1.95 “Personal Property” shall mean the Tangible Personal Property and the Intangible Personal Property.
1.1.96 “Premier” shall mean Premier Golf Management, Inc.
1.1.97 “Property” shall have the meaning ascribed in Article 2.
1.1.98 “Property Manager” shall mean EAGL.
1.1.99 “Property Seller” shall mean Lake Seller and Mansfield Seller.
1.1.100 “Proration Items” shall have the meaning ascribed in Section 10.6.1.
1.1.101 “Proration Time” shall have the meaning ascribed in Section 10.6.1.
1.1.102 “Purchase Price” shall have the meaning ascribed in Section 3.2.
1.1.103 “Real Property” shall mean the Lake Real Property and the Mansfield Real Property.
1.1.104 “Reporting Person” shall have the meaning ascribed in Section 6.4(a).
1.1.105 “Seller’s Indemnity” shall have the meaning ascribed in Section 3.6.1.
1.1.106 “Seller’s Receivables” shall have the meaning ascribed in Section 10.6.1(g).
1.1.107 “Property Seller’s Knowledge” shall have the meaning ascribed in Section 7.3.
1.1.108 “Senior Foreign Political Figure” shall have the meaning ascribed in Section 8.1(h).
1.1.109 “Survey” shall have the meaning ascribed in Section 5.1.
1.1.110 “Survey Defects” shall have the meaning ascribed in Section 5.1.
1.1.111 “Tangible Personal Property” shall mean the Lake Tangible Personal Property and the Mansfield Tangible Personal Property.
1.1.112 “Taxes” shall mean any federal, state, local or foreign, personal property, sales, use, excise or similar taxes, assessments, levies, charges or fees imposed by any Governmental Entity on the Seller with respect to the Property or the operation of the Golf Clubs including, without limitation, any interest, penalty or fine with respect thereto, but expressly excluding any (i) federal, state, local or foreign income, capital gain, gross receipts, capital stock, franchise, profits, estate, gift or generation skipping tax, or (ii) transfer, documentary stamp, recording or similar tax, levy, charge or fee incurred with respect to the transactions described in this Agreement.
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1.1.113 “Third Party Estoppels” shall have the meaning ascribed in Section 10.9.
1.1.114 “Title Commitments” shall have the meaning ascribed in Section 5.1.
1.1.115 “Title Company” shall mean The Talon Group, a division of First American Title Insurance Company, Attention: Xxxxxxx Xxxxx.
1.1.116 “Title Documents” shall have the meaning ascribed in Section 5.1.
1.1.117 “Title Exceptions” shall have the meaning ascribed in Section 5.2.
1.1.118 “Title Notice” shall have the meaning ascribed in Section 5.2.
1.1.119 “Title Objections” shall have the meaning ascribed in Section 5.2.
1.1.120 “Title Policies” shall have the meaning ascribed in Section 5.3.
1.1.121 “Unpermitted Title Exceptions” shall have the meaning ascribed in Section 5.2.
1.1.122 “Water Rights” shall mean the Lake Water Rights and the Mansfield Water Rights.
Section 1.2 Rules of Construction. Article and Section captions used in this Agreement are for convenience only and shall not affect the construction of this Agreement. All references to “Article” or “Sections” without reference to a document other than this Agreement, are intended to designate articles and sections of this Agreement, and the words “herein,” “hereof,” “hereunder,” and other words of similar import refer to this Agreement as a whole and not to any particular Article or Section, unless specifically designated otherwise. The use of the term “including” shall mean in all cases “including but not limited to,” unless specifically designated otherwise. No rules of construction against the drafter of this Agreement shall apply in any interpretation or enforcement of this Agreement, any documents or certificates executed pursuant hereto, or any provisions of any of the foregoing.
The property to be purchased and sold pursuant to this Agreement is (i) the Cowboys Ownership interests, and (ii) all of the following property (the property listed in Sections 2.1 and 2.2 is collectively the “Property”),:
Section 2.1 Lake Park Golf Club. The following property described in this Section 2.5 which is collectively referred to herein as the “Lake Property.”
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2.1.1 Concession Agreement. Lake Seller’s right, title and interest as concessionaire under the Lake Concession Agreement. As used herein, the term “Lake Concession Agreement” shall mean the documents listed on Schedule 2.1.1.
2.1.2 Buildings and Other Improvements/Fixtures. All of Seller’s right, title and interest in existing buildings, structures and other improvements located upon the Lake Land, including: a clubhouse building, a maintenance facility, an 18-hole golf course, landscaping, irrigation system, parking facilities, and all other improvements located on the Lake Land (collectively the “Lake Improvements”) and all fixtures attached to and forming a part of the Lake Land, other than those which constitute Lake Improvements (collectively, the “Lake Fixtures”); provided, however, Seller’s right, title and interest in the Lake Improvements and Lake Fixtures are subject to the provisions of the Lake Concession Agreement and the Army Corps Lease and the rights and interests of the City of Lewisville, Texas and the Army Corps of Engineers.
2.1.3 Water Rights. All right, title and interest of Lake Seller in and to all water rights, appropriative rights, water allocations and water stock associated with irrigating and/or draining Lake Park Golf Club, including, without limitation, under the Lake Water Documents, to the extent the same are assignable (collectively, the “Lake Water Rights”).
2.1.4 Tangible Personal Property. All tangible personal property owned by Lake Seller located on or used solely in the operation, maintenance, repair or ownership of the Lake Park Golf Club, including, without limitation, the following to the extent owned by Lake Seller and located on and used in the operation, maintenance, repair, or ownership of the Lake Land (collectively referred to herein as the “Lake Tangible Personal Property”; provided, however, that the Lake Personal Property shall not include any Excluded Property):
(a) All furniture, furnishings, machinery, tools, repair parts, goods, supplies, televisions, communications equipment, kitchen utensils, linen, glassware, china, appliances, gasoline and lubricants, fertilizer, seed, sand, chemicals, irrigation parts and supplies; and
(b) All food and beverage items (excluding liquor, wine and beer), consumable supplies and inventories of every kind of nature and all professional shop merchandise, goods and inventory (the “Lake Goods and Inventory”) and further including the personal property described in Exhibit B-1.
2.1.5 Intangible Personal Property. To the extent transferable, all of Lake Seller’s right, title and interest in the intangible personal property appurtenant to the ownership, operation and use of Lake Park Golf Club including, without limitation, Lake Seller’s right, title and interest in the following to the extent transferable and appurtenant to the ownership, operation and use of Lake Park Golf Club (collectively referred to herein as the “Lake Intangible Personal Property”; provided however, that the Lake Intangible Personal Property shall not include any Excluded Property):
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(a) All Lake Licenses and Permits;
(b) All plans and specifications, blue prints, architectural plans, golf course designs, engineering drawings and similar items;
(c) All surveys, topographical surveys and environmental and soils reports;
(d) All software licenses, telephone number listings in directories, customer files, guest lists, credit records, labels, promotional literature and security codes.
(e) All proprietary rights Lake Seller may have with respect to the use of the name “Lake Park Golf Club” and any variations thereof, including course-specific, stand-alone internet sites and domain names;
(f) Tradenames, trademarks, service marks, and logos with respect to the name “Lake Park Golf Club” and “Lake Park Executive Course” (the “Lake Marks and Logos”);
(g) The Lake Contracts; and
(h) All product and service warranties and guaranties to the extent relating to the period after Closing.
2.1.6 Effluent Discharge Rights. All right, title and interest of Seller, if any, in all rights to discharge effluent to a water of a State or the United States in connection with the operation of the Lake Park Golf Club (the “Lake Effluent Discharge Rights”).
2.1.7 Appurtenances. All right, title and interest of Lake Seller, if any, in and to all appurtenances, hereditaments, easements, reversionary rights, and all other rights, privileges and entitlements belonging to or running with the Lake Land (collectively the “Lake Appurtenances”).
Section 2.2 Mansfield National Golf Club. The following property described in this Section 2.5 which is collectively referred to herein as the “Mansfield Property.”
2.2.1 Lease Agreement. Mansfield Seller’s right, title and interest as lessee under the Mansfield Lease Agreement. As used herein, the term “Mansfield Lease Agreement” shall mean the documents listed on Schedule 2.2.1.
2.2.2 Buildings and Other Improvements/Fixtures. All of Seller’s right, title and interest in existing buildings, structures and other improvements located upon the Mansfield Land, including: a clubhouse building, a maintenance facility, an 18-hole golf course, landscaping, irrigation system, parking facilities, and all other improvements located on the Mansfield Land (collectively the “Mansfield Improvements”) and all fixtures attached to and forming a part of the Mansfield Land, other than those which constitute Mansfield Improvements (collectively, the “Mansfield Fixtures”); provided, however, that all of Seller’s right, title and interest in the Mansfield Improvements and Mansfield Fixtures are subject to the provisions of the Mansfield Lease Agreement and the rights and interests of the City of Mansfield, Texas and the Mansfield Park Facilities Development Corporation.
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2.2.3 Water Rights. All right, title and interest of Mansfield Seller in and to all water rights, appropriative rights, water allocations and water stock associated with irrigating and/or draining Mansfield National Golf Club, including, without limitation, under the Mansfield Water Documents, to the extent the same are assignable (collectively, the “Mansfield Water Rights”).
2.2.4 Tangible Personal Property. All tangible personal property owned by Mansfield Seller located on or used solely in the operation, maintenance, repair or ownership of the Mansfield National Golf Club, including, without limitation, the following to the extent owned by Mansfield Seller and located on and used in the operation, maintenance, repair, or ownership of the Mansfield Land (collectively referred to herein as the “Mansfield Tangible Personal Property”; provided, however, that the Mansfield Personal Property shall not include any Excluded Property):
(a) All furniture, furnishings, machinery, tools, repair parts, goods, supplies, televisions, communications equipment, kitchen utensils, linen, glassware, china, appliances, gasoline and lubricants, fertilizer, seed, sand, chemicals, irrigation parts and supplies; and
(b) All food and beverage items (excluding liquor, wine and beer), consumable supplies and inventories of every kind of nature and all professional shop merchandise, goods and inventory (the “Mansfield Goods and Inventory”) and further including the personal property described in Exhibit B-2.
2.2.5 Intangible Personal Property. To the extent transferable, all of Mansfield Seller’s right, title and interest in the intangible personal property appurtenant to the ownership, operation and use of Mansfield National Golf Club including, without limitation, Mansfield Seller’s right, title and interest in the following to the extent transferable and appurtenant to the ownership, operation and use of Mansfield National Golf Club (collectively referred to herein as the “Mansfield Intangible Personal Property”; provided however, that the Mansfield Intangible Personal Property shall not include any Excluded Property):
(a) All Mansfield Licenses and Permits;
(b) All plans and specifications, blue prints, architectural plans, golf course designs, engineering drawings and similar items;
(c) All surveys, topographical surveys and environmental and soils reports;
(d) All software licenses, telephone number listings in directories, customer files, guest lists, credit records, labels, promotional literature and security codes.
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(e) All proprietary rights Mansfield Seller may have with respect to the use of the name “Mansfield National Golf Club” and any variations thereof, including course-specific, stand-alone internet sites and domain names;
(f) Tradenames, trademarks, service marks, and logos with respect to the name “Mansfield National Golf Club” (the “Mansfield Marks and Logos”) and any rights under any licenses held by Seller with regard to the Mansfield Marks and Logos;
(g) The Mansfield Contracts; and
(h) All product and service warranties and guaranties to the extent relating to the period after Closing.
2.2.6 Effluent Discharge Rights. All right, title and interest of Seller, if any, in all rights to discharge effluent to a water of a State or the United States in connection with the operation of the Mansfield National Golf Club (the “Mansfield Effluent Discharge Rights”).
2.2.7 Appurtenances. All right, title and interest of Mansfield Seller, if any, in and to all appurtenances, hereditaments, easements, reversionary rights, and all other rights, privileges and entitlements belonging to or running with the Mansfield Land (collectively the “Mansfield Appurtenances”).
ARTICLE 3 - AGREEMENT OF PURCHASE AND SALE; PURCHASE PRICE
Section 3.1 Agreement of Purchase and Sale. Seller agrees to sell, transfer, assign and convey to Buyer, and Buyer agrees to purchase, accept and assume subject to the terms and conditions stated herein, all of Seller’s right, title and interest in and to the Property and the Cowboys Ownership Interests.
Section 3.2 Purchase Price. Buyer shall pay Seller the purchase price of TWENTY FOUR MILLION SIX HUNDRED FIFTY-FOUR THOUSAND and NO/100 Dollars ($24,654,000.00), as adjusted by the Proration Items in Section 10.6 (“Purchase Price”) at Closing. The Purchase Price and such other funds as may be necessary to pay Buyer’s expenses hereunder, subject to closing adjustments, shall be deposited with the Escrow Agent on or before the Closing Date in accordance with this Agreement and shall be paid to Seller in accordance with Article 10 hereof.
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Section 3.6 Assumption of Obligations/Retained Liabilities/Assumed Liabilities.
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Lake Concession Agreement, Mansfield Lease Agreement, Intangible Personal Property, Water Rights, Effluent Discharge Rights, Licenses and Permits and Permitted Encumbrances for the period on and after the Closing Date, (ii) the payment of Taxes and ad valorem or property taxes for the period on or after the Closing Date, (iii) all obligations and Liabilities pursuant to any items disclosed by Seller pursuant to Article 7, except for the matters described in Schedule 7.1(d) and 7.1(j) (which exception includes, without limitation, the pending sales tax audit disclosed on Schedule 7.1 [j]) and (iv) all obligations and Liabilities related to the physical, environmental and legal compliance condition of the Property, regardless of whether such obligations or Liabilities arise before, on or after the Closing Date (collectively, the “Assumed Liabilities”). Buyer hereby indemnifies, saves, pays, insures and holds Seller harmless from and against all Liabilities (including, but not limited to, reasonable attorneys’ fees and expenses) asserted against or incurred by Seller and arising out of the Assumed Liabilities or the failure of Buyer to perform its obligations under this Section 3.6.2 (the “Buyer’s Indemnity”).
The rights and obligations of the Seller, EAGL Parent and Buyer under this Section 3.6 shall survive the Closing.
Section 3.7 Right of First Purchase. Intentionally Omitted.
Section 3.8 Termination of or default under Fund IV Asset Purchase Agreement, and/or the Fund III Entity Purchase Agreement. In the event that Buyer or Premier, as applicable, (i) fails to execute the Fund III Entity Purchase Agreement and the Fund IV Asset Purchase Agreement on or before the expiration of ten (10) days following the Effective Date, or (ii) for any reason, terminates or is in default under any of the Fund III Entity Purchase Agreement or the Fund IV Asset Purchase Agreement, Seller may, in its sole discretion, elect to terminate this Agreement within seven (7) Business Days of such termination or default (whichever is later), and upon such termination by Seller, the Deposit shall be returned to Buyer and neither party shall have any further rights or obligations hereunder except as provided in Sections 4.5, 4.6, 4.7, 10.7 and 11.11; provided, however, Seller hereby agrees that upon a termination of the Fund III Entity Purchase Agreement by Seller due to a default by Premier thereunder, Buyer, or an Affiliate of Buyer, or any third party designated by Buyer, may assume Premier’s rights and obligations thereunder, and Seller hereby consents to same. In the event that the seller defaults in its closing obligations under the Fund III Entity Purchase Agreement, which default results in a termination of the Fund III Entity Purchase Agreement by Premier, such default shall be a Material Default hereunder and Buyer may, in its sole discretion, elect to terminate this Agreement and upon such termination, Buyer shall have all rights and remedies available to Buyer for a Material Default as provided under Section 6.1 hereof.
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days prior to the Closing Date (the “EAGL Assets/Contracts”); provided, however, the EAGL Assets/Contracts may not include the Excluded EAGL Entities and Interests or any assets of or agreements entered into by the Excluded Entities. The EAGL Assets/Contracts shall be conveyed or assigned, as applicable, by EAGL and accepted or assumed, as applicable, by Buyer, at the Closing in accordance with Article 10 with the conveyance documents to be in substantially the same form as the Xxxx of Sale and Assignment Agreement and the Assignment and Assumption of Contracts, as applicable. In the event of a termination of this Agreement, EAGL’s obligations hereunder shall also terminate and be of no further force and effect. The EAGL Assets/Contracts shall be included in the “Property” for purposes of the representations and warranties made by Seller in Section 7.1(m) hereof and in Section 7.1(l).
ARTICLE 4 - BUYER’S DUE DILIGENCE/CONDITION OF THE PROPERTY
Section 4.1 Buyer’s Inspections and Due Diligence. Buyer acknowledges that commencing on the Effective Date and continuing for a period which will expire at 11:59 p.m. Eastern Standard Time on the Closing Date (the “Due Diligence Period”), Buyer shall conduct its examinations, inspections, testing, studies and investigations of the Property and Cowboys Ownership Interests, information regarding the Property and the Cowboys Ownership Interests and such documents applicable to the Property and the Cowboys Ownership Interests, including, without limitation, the documents that Seller delivers or makes available, as set forth in Section 4.2 below (collectively, the “Due Diligence”). In addition, the Buyer shall have the right, but not the obligation, to contact (i) any Governmental Entity as it may elect in connection with this transaction including, without limitation, City of Lewisville, City of Mansfield and the Army Corps of Engineers, (ii) owner’s associations, club members or club membership board, if applicable and as appropriate; provided, however, that for contact under clauses (i) and (ii) above, Buyer shall have first given Seller forty-eight (48) hours advance notice, and Seller shall have the opportunity to have a representative present during any such communication. Except for any limitations as may be imposed by Section 4.5 below, Buyer may conduct such due diligence activities, inspections, and studies of the Property and the Cowboys Ownership Interests as it deems necessary or appropriate, and examine and investigate to its full satisfaction all facts, circumstances, and matters relating to the Property and the Cowboys Ownership Interests (including the physical condition and use, availability and adequacy of utilities, access, zoning, compliance with applicable laws, environmental conditions, engineering and structural matters), title and survey matters, and any other matters it deems necessary or appropriate for purposes of consummating this transaction. The Due Diligence shall be at Buyer’s sole cost and expense. Seller shall reasonably assist Buyer in obtaining third party consents or approvals related to this transaction.
(a) A copy of all certificates of occupancy, licenses, permits and approvals issued by any Governmental Entity to the extent such are in Seller’s possession or control with respect to Lake Park Golf Club (the “Lake Licenses and Permits”) and Mansfield National Golf Club (the “Mansfield Licenses and Permits”) (collectively the “Licenses and Permits”). A list of the Licenses and Permits is attached hereto as Schedule 4.2(a).
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(b) A copy of the liquor licenses in Seller’s possession or control with respect to Lake Park Golf Club (the “Lake Liquor Licenses”) and Mansfield National Golf Club (the “Mansfield Liquor Licenses”) (collectively the “Liquor Licenses”). A list of the Liquor Licenses is attached hereto as Schedule 4.2(b).
(c) A copy of the Mansfield Lease Agreement and all amendments and modifications thereto.
(d) A copy of the Mansfield Development Agreement and all amendments and modifications thereto.
(e) A copy of the Lake Concession Agreement and all amendments and modifications thereto.
(f) A copy of the Army Corps Lease and all amendments and modifications thereto.
(g) A copy of the Contracts listed on Schedule 1.1.22(a), Schedule 1.1.22(b) and Schedule 1.1.22(c).
(h) A copy of all documents, agreements and permits in Seller’s possession or control relating to the supply of irrigation water to the Lake Park Golf Club (the “Lake Water Documents”) and Mansfield National Golf Club (the “Mansfield Water Documents”) (collectively the “Water Documents”).
(i) A copy of the Existing Surveys.
(j) A copy of any existing title insurance policies and pending commitments of title insurance and endorsements, together with copies of exemption documents and instruments relating to the Real Property in Seller’s possession or control.
(k) A copy of the most recent real estate tax statements with respect to the Real Property and any notices of appraised value of the Real Property.
(l) To the extent they are in Seller’s possession or control, Seller shall make available at the corporate office of Property Manager or at the individual Club(s), a copy of all plans and specifications, blue prints, architectural plans, golf course designs or drawings, engineering drawings and similar items relating to the Real Property.
(m) A copy of all environmental and soil reports relating to the Real Property and in Seller’s possession or control.
(n) A copy of the (i) certificate of limited partnership of Grapevine Golf Club, L.P. (“Cowboys Owner”), (ii) Cowboys LP Agreement, (iii) certificate of formation for the Cowboys GP and (iv) the limited liability company agreement of the Cowboys GP.
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(o) A copy of the Cowboys Contracts.
(p) Such other information (other than the Excluded Property Records defined below) as is reasonably requested by Buyer and is reasonably available to Seller.
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any permit, license, or environmental law or regulation. Buyer and any Licensee Parties will: (a) maintain comprehensive general liability (occurrence) insurance in an amount of not less than $5,000,000 covering any accident arising in connection with the presence of Buyer or the other Licensee Parties at the Golf Clubs and Cowboys Golf Club and deliver a certificate of insurance verifying such coverage to Seller prior to entry to the Golf Clubs or Cowboys Golf Club; (b) promptly pay when due the costs of all inspections and examinations done with regard to the Property and Cowboys Golf Club; and (c) restore the Golf Clubs and Cowboys Golf Club to substantially the same condition in which the same were found before any such entry to the Golf Clubs and Cowboys Golf Club and inspection or examination was undertaken.
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in Sections 4.5, 4.6, 4.7, 10.7, and 11.11. If before the end of the Due Diligence Period, Buyer fails to give Seller such written notice, then Buyer shall be deemed to have elected to waive its rights to terminate this Agreement and to have approved all of the matters with regard to the Golf Clubs. If Buyer timely elects to terminate its obligations hereunder as described above, Buyer shall provide to Seller, promptly after receipt of a request from Seller, originals of all third party reports, studies and appraisals relating to the Property in its possession, without representation or warranty and at no cost to Seller. The foregoing obligation shall survive any termination of this Agreement. Subject to the terms of this Agreement, Buyer, provided it has not terminated this Agreement, after the expiration of the Due Diligence Period, may continue to conduct further physical Due Diligence or other examinations, inspections, tests, studies and investigations regarding the Property; provided, however, that except as otherwise expressly provided in Sections 6.1 and 11.2.2, in no event shall Buyer have any right to terminate or otherwise modify its obligations hereunder after the end of the Due Diligence Period solely as a result of any such further physical Due Diligence or other examinations, inspections, tests, studies or investigations regarding the Property and Cowboys Ownership Interests and the provisions of this Article 4, including, without limitation, the indemnification provisions, shall continue to apply.
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further rights or obligations hereunder except for those obligations which expressly survive the termination of this Agreement. The term “Permitted Encumbrances” shall mean (i) all matters and exceptions shown on any Title Commitment (including without limitation, all standard printed exceptions), or on the Surveys (or Existing Surveys, as applicable), (ii) applicable zoning and building ordinances and land use regulations, (iii) such state of facts as would be disclosed by a physical inspection of the Property, (iv) the lien of taxes and assessments not yet due and payable, (v) any exceptions caused by Buyer, its agents, representatives or employees, and (vi) the Leases; provided, however, (a) if Buyer timely delivers a Title Notice, and Seller elects in writing to cure all or any portion of the Title Exception(s) or Survey Exception(s), the term “Permitted Encumbrances” shall be amended to exclude those specific Title Exceptions(s) and/or Survey Exception(s) that Seller has agreed in writing to cure, and (b) the term “Permitted Encumbrances” shall not include any items which the Title Company agrees to modify or delete at or prior to the Closing (Seller agrees to execute a reasonable Owner’s Affidavit for the purposes of the Title Company deleting the standard exceptions as are customarily deleted or modified in Texas with the issuance of an Owner’s Affidavit). In the event there is an “Unpermitted Title Defect,” the following shall apply. If the Unpermitted Title Defect is the result of a default by Seller of its covenants hereunder then (a) Buyer shall give written notice to Seller of such and (b) in the event Seller cannot cure such Unpermitted Title Defect prior to Closing, then the Unpermitted Title Defect shall constitute a default by Seller hereunder and Buyer may elect in writing on or prior to the Closing Date to (i) waive such Unpermitted Title Defect and proceed to Closing or (ii) pursue all remedies afforded to Buyer hereunder. If the Unpermitted Title Defect is not the result of a default by Seller of its covenants hereunder, then (a) Buyer shall give written notice to Seller of such and (b) in the event Seller cannot cure such Unpermitted Title Defect prior to Closing, then Buyer may elect in writing on or prior to the Closing Date to waive such Unpermitted Title Defect and proceed to Closing or, if Buyer does not so waive such Unpermitted Title Defect, then either party shall have the right to terminate this Agreement in which event the Deposit shall be returned to Buyer and neither party shall have any further rights or obligations hereunder except as provided in Sections 4.5, 4.6, 4.7, 10.7 and 11.11. An “Unpermitted Title Defect” is a matter of title or survey which arises after the effective date of the Updated Commitments (defined below). An Unpermitted Title Defect shall not be a default by Seller hereunder unless such matter arose after the effective date of the Updated Commitments directly as the result of the actions or inactions of Seller and such action or inaction is a breach of Seller’s covenants hereunder. Buyer shall have the Title Company update the Title Commitments as close to the end of the Due Diligence Period as is possible and such updated Title Commitments are referred to herein as the “Updated Commitments.” In the event that Buyer fails to have the Title Company update the Title Commitments, as provided in the preceding sentence, then the term Updated Commitments shall mean the most current Title Commitments and shall be deemed to include all matters which would have been included as exceptions had the Title Commitments been updated as required in the preceding sentence.
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require, provided that (a) such endorsements (or amendments) shall be at no cost to, and shall impose no additional liability on, Seller, (b) Buyer’s obligations under this Agreement shall not be conditioned upon Buyer’s ability to obtain such endorsements and, if Buyer is unable to obtain such endorsements, Buyer shall nevertheless be obligated to proceed to close the transaction contemplated by this Agreement without reduction of or set off against the Purchase Price, and (c) the Closing shall not be delayed as a result of Buyer’s request. Notwithstanding anything herein to the contrary, it shall not in any event be a requirement hereunder that the Title Company provides insurance for the Water Rights; provided, however, the above shall not preclude Buyer from seeking or obtaining insurance coverage for Water Rights from the Title Company.
ARTICLE 6 - REMEDIES AND DEPOSIT INSTRUCTIONS
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Defaults, Buyers sole remedy shall be to terminate this Agreement and upon such termination, the Deposit shall be returned to Buyer and neither party shall have any further rights or obligations hereunder except as provided in this Sections 4.7, 10.7, and 11.11.
6.1.1 THE PARTIES HAVE AGREED THAT BUYER’S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE DUE TO SELLER’S DEFAULT, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF ONE MILLION NINE HUNDRED NINETY-NINE THOUSAND AND NINE HUNDRED DOLLARS ($1,999,900.00) IS A REASONABLE ESTIMATE OF THE DAMAGES THAT BUYER WOULD INCUR IN SUCH EVENT. BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE FOREGOING IS NOT INTENDED TO LIMIT SELLER’S SURVIVING OBLIGATIONS UNDER SECTIONS 10.7 AND 11.11.
Initials: Seller Buyer
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Initials: Seller Buyer
6.3.2 The Escrow Agent shall have no responsibility hereunder except for the performance by it in good faith of the acts to be performed by it hereunder, and the Escrow Agent shall have no liability except for its own willful misconduct or gross negligence.
6.3.3 The Escrow Agent shall be reimbursed on an equal basis by Buyer and Seller for any reasonable expenses incurred by the Escrow Agent arising from a dispute with respect to the amount held in escrow, including the cost of any legal expenses and court costs incurred by the Escrow Agent, should the Escrow Agent deem it necessary to retain an attorney with respect to the disposition of the amount held in escrow.
6.3.4 In the event of a dispute between the parties hereto with respect to the disposition of the amount held in escrow, the Escrow Agent shall be entitled, at its own discretion, to deliver such amount to an appropriate court of law pending resolution of the dispute.
6.3.5 The Escrow Agent shall invest the amount in escrow in accounts which are federally insured or which invest solely in government securities and shall be applied in accordance with the terms of this Agreement. Interest earned thereon shall be added to the funds deposited by Buyer, and shall become part of the Deposit.
(a) Provided the Escrow Agent shall execute a statement in writing (in form and substance reasonably acceptable to the parties hereunder) pursuant to which it agrees to assume all responsibilities for information reporting required under Section 6045(e) of the Code, Seller and Buyer shall designate the Escrow Agent as the person to be responsible for all information reporting under Section 6045(e) of the Code (the “Reporting Person”). If the Escrow Agent refuses to execute a statement pursuant to which it agrees to be the Reporting Person, Seller and Buyer shall agree to appoint another third party as the Reporting Person.
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(b) Seller and Buyer hereby agree:
(i) to provide to the Reporting Person all information and certifications regarding such party, as reasonably requested by the Reporting Person or otherwise required to be provided by a party to the transaction described herein under Section 6045 of the Code; and
(ii) to provide to the Reporting Person such party’s taxpayer identification number and a statement (on Internal Revenue Service Form W-9 or an acceptable substitute form, or on any other form the applicable current or future Code sections and regulations might require and/or any form requested by the Reporting Person), signed under penalties of perjury, stating that the taxpayer identification number supplied by such party to the Reporting Person is correct.
(iii) Each party hereto agrees to retain this Agreement for not less than four years from the end of the calendar year in which the Closing occurred, and to produce it to the Internal Revenue Service upon a valid request therefor.
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES OF SELLER
Section 7.1 Representations and Warranties of Seller. Subject to the provisions of Sections 7.2 and 8.4, Property Seller makes the following representations and warranties with respect to itself and its portion of the Property, upon which Property Seller acknowledges and agrees that the Buyer is entitled to rely, and as of the Closing shall provide a Certificate reconfirming that all such representations and warranties remain true and correct as of the Closing Date, subject to the provisions of Section 4.12 hereof regarding supplements:
(a) Status. Each entity constituting Property Seller is a limited partnership duly formed, validly existing and in good standing under the laws of the State of Delaware or Texas, as applicable, is qualified to do business in the jurisdiction in which its Property is located and has all requisite power and authority to own its Property and conduct its business as currently owned and conducted.
(b) Authority. (i) Each Property Seller has full power and authority to execute and deliver this Agreement and all other documents to be executed and delivered by them pursuant to this Agreement (the “Property Seller’s Documents”), and to perform all obligations required of them under this Agreement and each of the Property Seller’s Documents, (ii) the execution and delivery by each Property Seller of this Agreement and, when executed and delivered, each of the Property Seller’s Documents, and the performance by each Property Seller of its obligations under this Agreement and, when executed and delivered, each Property Seller’s Documents, have been, or will have been, duly and validly authorized by all necessary action by the Seller, and (iii) subject to equitable principles and principles governing creditors’ rights generally, this Agreement and, when executed and delivered, the Property Seller’s Documents constitutes, or will constitute, legal, valid and binding obligations of the Property Seller enforceable against the Property Seller in accordance with its and their terms, except to the extent the Buyer itself is in default hereunder or thereunder.
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(n) Employees. Property Seller has no employees.
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to ensure such compliance. Property Seller and its officers and shareholders, and their respective principals, shall not transfer the proceeds obtained as a result of this Agreement to any person or entity listed on the OFAC list as “Terrorists” and “Specially Designated Nationals and Blocked Persons”, or otherwise be in violation of the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001.
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(n) Employees. Neither Cowboys GP nor Cowboys Partnership has employees.
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maintain an unusually close relationship with a Senior Foreign Political Figure, and includes a person who is in a position to conduct substantial United States and non-United States financial transactions on behalf of the Senior Foreign Political Figure.
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duties running from such individuals to Buyer. Buyer covenants that it will bring no action of any kind against such individuals, any shareholder, partner or member of Seller, as applicable, or related to or arising out of these representations and warranties.
ARTICLE 8 - REPRESENTATIONS AND WARRANTIES OF BUYER
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Section 8.2 Buyer’s Independent Investigation.
8.2.1 Buyer has been given, or will be given before the end of the Due Diligence Period, a full opportunity to inspect and investigate the Property and the Cowboys Ownership Interests, either independently or through agents of Buyer’s choosing, including, without limitation:
(a) All matters relating to title, together with all governmental and other legal requirements such as taxes, assessments, zoning, use permit requirements, and building codes;
(b) The physical condition and aspects of the Property and Cowboys Golf Club, including, without limitation, the interior, the exterior, the square footage within the improvements on the Real Property, the structures, the paving, the utilities, and all other physical and functional aspects of the Property and Cowboys Golf Club, including, without limitation, an examination for the presence or absence of Hazardous Materials, which shall be performed or arranged by Buyer at Buyer’s sole expense;
(c) Any easements and/or access rights affecting the Property;
(d) The Contracts, the Licenses and Permits, the Cowboys Contracts and any other documents or agreements of significance affecting the Property or the Cowboys Ownership Interests; and
(e) All other matters of material significance affecting the Property or the Cowboys Ownership Interests or delivered to Buyer by Seller in accordance with Article 4 of this Agreement.
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ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. EXCEPT AS PROVIDED IN SECTIONS 7.1 AND 7.2 HEREOF AND IN THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), SELLER AND EAGL PARENT SPECIFICALLY DISCLAIM, AND NEITHER SELLER NOR EAGL PARENT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR EAGL PARENT OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, THE COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTEREST, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY, COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTERESTS AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS, THE COWBOYS OWNERSHIP INTERESTS OR THE COWBOYS GOLF CLUB WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER. EAGL PARENT AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7.1 AND 7.2 HEREOF AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS WILL BE CONVEYED AND TRANSFERRED TO BUYER IN THEIR PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS”, WITH ALL FAULTS. Buyer represents that it is a knowledgeable, experienced and sophisticated buyer of real estate, including golf courses, and that it is relying solely on its own expertise and that of Buyer’s consultants in purchasing the Property and Cowboys Ownership Interests and that it is receiving reasonably equivalent value in consummating the transactions contemplated hereby. Buyer acknowledges and agrees
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that it will have the opportunity to conduct such inspections, investigations and other independent examinations of the Property and Cowboys Ownership Interests and related matters, including but not limited to the physical and environmental conditions thereof, during the Due Diligence Period and, except as set forth in Sections 7.1 and 7.2 and in the Property Seller’s Documents and EAGL Seller’s Documents, as such may be limited by Section 7.3 (provided such limitation shall not apply to the Assignment and Assumption of Lake Concession Agreement, the Assignment and Assumption of Mansfield Lease Agreement, and the Xxxx of Sale and Assignment Agreements to be delivered at Closing), Buyer will rely upon same and not upon any statements of Seller, EAGL Parent or of any officer, director, employee, agent or attorney of Seller. Buyer acknowledges that all information obtained by Buyer will be obtained from a variety of sources and Seller and EAGL Parent will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to Buyer. Upon Closing, Buyer will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Buyer’s inspections and investigations. Buyer acknowledges and agrees that upon Closing, Seller will sell and convey to Buyer, and Buyer will accept the Property and Cowboys Ownership Interests “AS IS, WHERE IS,” with all faults. Buyer further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property or Cowboys Ownership Interests, by Seller, EAGL Parent, any agent of Seller or EAGL Parent or any third party. Neither Seller nor EAGL Parent is liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property or Cowboys Ownership Interests furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Buyer acknowledges that the Purchase Price reflects the “as is, where is” nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property and Cowboys Ownership Interests. BUYER, WITH BUYER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 8.2.2 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS.
Section 8.3 Buyer’s Release of Seller.
8.3.1 Seller Released From Liability. Buyer, on behalf of itself and its agents, heirs, successors and assigns, waives, releases, acquits and forever discharges Seller and
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EAGL Parent and their respective affiliates, owners, officers, directors, partners, employees, agents and representatives of and from any and all claims actions, causes of actions, demands, rights, damages, costs, expenses or compensation whatsoever, direct or indirect, known or unknown foreseen or unforeseen, which Buyer or any of Buyer’s heirs, successors, or assigns now has or which may arise in the future on account of or in any way related to or in connection with the condition (including its physical condition and its compliance with applicable laws, and the presence in the soil, air, structures and surface and subsurface waters, of Hazardous Materials or substances that have been or may in the future be determined to be toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Property or the Cowboys Golf Club under current or future federal, state and local laws, regulations or guidelines), valuation, salability or utility of the Property, the Cowboys Ownership Interests and the Cowboys Golf Club, their suitability for any purpose whatsoever and any past, present or future aspect, feature, characteristic, circumstance or condition arising out of or in connection with the Property, the Cowboys Ownership Interests or the Cowboys Golf Club, except to the extent that such responsibility or liability is the result of the breach (if any) of Seller’s or Eagl Parent’s representations under Sections 7.1 and 7.2 hereof, as limited by Section 7.3, or the Retained Liabilities. THE FOREGOING WAIVER AND RELEASE SHALL APPLY TO ANY AND ALL SUCH CLAIMS WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OF SELLER AND/OR MATTER WHICH CREATED ANY STRICT LIABILITY UNDER APPLICABLE ENVIRONMENTAL LAWS.
8.3.2 Buyer’s Waiver of Objections. Buyer acknowledges that it has inspected the Property, the Cowboys Ownership Interests and the Cowboys Golf Club, observed their physical characteristics and existing conditions and had, or will have, the opportunity to conduct such investigation and study on and of said Property, Cowboys Ownership Interests and Cowboys Golf Club and adjacent areas as it deemed necessary, and subject to Seller’s and EAGL Parent’s responsibility for any breach of the warranties and representations contained in Sections 7.1 and 7.2 of this Agreement (as limited by Section 7.3 of this Agreement), hereby waives any and all objections to or complaints (including but not limited to actions based on federal, state or common law and any private right of action under CERCLA, RCRA or any other state and federal law to which the Property, the Cowboys Ownership Interests and Cowboys Golf Club are or may be subject) regarding physical characteristics and existing conditions, including without limitation structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the Property, the Cowboys Ownership Interests or Cowboys Golf Club. Buyer further hereby assumes the risk of changes in applicable laws and regulations relating to past, present and future environmental conditions on the Property, Cowboys Ownership Interests and the Cowboys Golf Club, and the risk that adverse physical characteristics and conditions, including without limitation the presence of Hazardous Materials or other contaminants, may not be revealed by its investigation.
8.3.3 Survival. The foregoing waivers and releases by Buyer shall survive either (a) the Closing and shall not be deemed merged into any of the Property Seller’s Documents or EAGL Seller’s Documents, or (b) any termination of this Agreement.
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ARTICLE 9 - MAINTENANCE OF PROPERTY
From the date hereof until the Closing, and except as otherwise consented to or approved by Buyer, Seller covenants and agrees with Buyer as follows:
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which is ninety (90) days thereafter, or the date Buyer obtains its own liquor license for the applicable Golf Clubs. Under the Interim Liquor Management Agreement, among other things, (i) Buyer shall name Seller as an additional insured on Buyer’s commercial general liability insurance policy (which policy must contain a liquor service endorsement); (ii) Buyer and Seller shall use reasonable efforts to maintain in full force and effect, and if necessary renew, each applicable liquor license during the term of the Interim Liquor Management Agreement; and (iii) Buyer shall protect, defend, indemnify and hold harmless Seller from and against any and all Claims arising out of or in connection with the alcoholic beverage operations at the Golf Courses after the Closing.
ARTICLE 10 - CLOSING AND CONDITIONS
10.3.1 Two (2) original counterparts of an assignment and assumption of concession agreement with respect to the Lake Concession Agreement duly executed by Lake Seller in the form attached hereto as Exhibit D (the “Assignment and Assumption of Lake Concession Agreement”);
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10.3.2 Two (2) original counterparts of an assignment and assumption of lease agreement with respect to the Mansfield Lease Agreement duly executed by Mansfield Seller in the form attached hereto as Exhibit E (the “Assignment and Assumption of Mansfield Lease Agreement”);
10.3.3 One (1) original of the Termination of Development Agreement in the form attached hereto as Schedule 10.3.3;
10.3.4 Two (2) original counterparts of Xxxx of Sale and Assignment Agreements with respect to (i) the transfer of the Lake Personal Property and the Mansfield Personal Property each in the form attached hereto as Exhibit G (collectively, the Xxxx of Sale and Assignment Agreements”) duly executed by Lake Seller, Mansfield Seller or EAGL, as applicable; provided, however, for purposes of the Xxxx of Sale and Assignment Agreements, the Personal Property shall not include the Contracts, the Warranties and Guaranties and the Licenses and Permits which all shall be assigned by separate documents;
10.3.5 Two (2) original counterparts of assignments and assumptions with respect to the Lake Contracts and the Mansfield Contracts (collectively, the “Assignments and Assumptions of Contracts”) each in the form attached hereto as Exhibit H duly executed by Lake Seller, Mansfield Seller or EAGL, as applicable;
10.3.6 Two (2) original counterparts of assignments and assumptions with respect to the Lake Water Documents and the Mansfield Effluent Discharge Rights (collectively, the “Assignments of Water Documents”) each in the form attached hereto as Exhibit I, duly executed by Lake Seller or Mansfield Seller, as applicable;
10.3.7 Two (2) original counterparts of assignments and assumptions with respect to the Lake warranties and guaranties and Lake Licenses and Permits and the Mansfield warranties and guaranties and Mansfield Licenses and Permits (collectively, the “Assignments and Assumptions of Warranties and Guaranties, and Licenses and Permits”) each in the form attached hereto as Exhibit J, duly executed by Lake Seller or Mansfield Seller, as applicable;
10.3.8 Two (2) original counterparts of an assignment and assumption of one hundred percent (100%) of the limited liability company interest in Grapevine Golf, L.L.C. ( the “Assignment and Assumption of Cowboys GP Interest”) in the form attached hereto as Exhibit K, duly executed by EAGL;
10.3.9 Two (2) original counterparts of an assignment and assumption of Cowboys LP Interest (the “Assignment and Assumption of Cowboys LP Interest”) in the form attached hereto as Exhibit L, duly executed by EAGL;
10.3.10 Two (2) duly executed counterparts of the Seller’s Certificate regarding representations and warranties to be provided pursuant to Section 7.1 hereof;
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10.3.11 Affidavits pursuant to Section l445(b)(2) of the Code, and on which Buyer is entitled to rely, executed by each of Seller stating that each Seller respectively is not a “foreign person” within the meaning of Section l445(f)(3) of the Code;
10.3.12 If applicable, duly completed and signed real estate transfer tax declarations;
10.3.13 Two (2) duly executed counterparts of the Closing Statements; and
10.3.14 Such other documents as may be reasonably required by the Title Company or as may be agreed upon by Seller and Buyer to consummate the purchase of the Property as contemplated by this Agreement.
10.4.1 The balance of the Purchase Price and such additional funds as are necessary to close this transaction;
10.4.2 Two (2) executed counterparts of the Assignment and Assumption of Concession Agreement;
10.4.3 Two (2) executed counterparts of the Assignment and Assumption of Mansfield Lease Agreement;
10.4.4 Two (2) executed counterparts of the Assignment and Assumption of Mansfield Development Agreement;
10.4.5 Two (2) executed counterparts of the Assignments and Assumptions of Contracts;
10.4.6 Two (2) executed counterparts of the Assignments of Water Documents;
10.4.7 Two (2) executed counterparts of the Assignments and Assumption of Warranties and Guaranties and Licenses and Permits;
10.4.8 Two (2) executed counterparts of the Assignment and Assumption of Cowboys GP Interest;
10.4.9 Two (2) executed counterparts of the Assignment and Assumption of Cowboys LP Interest;
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10.4.11 Two (2) duly executed counterparts of the Closing Statements; and
10.4.12 Such other documents as may be reasonably required by the Title Company or as may be agreed upon by Seller and Buyer to consummate the purchase of the Property as contemplated by this Agreement.
Section 10.5 Actions at Closing. On the Closing Date, Escrow Holder shall do the following:
10.5.1 Deliver to Buyer (i) a fully executed original (in counterparts, if applicable) of the Assignment and Assumption of Lake Concession Agreement, the Assignment and Assumption of Mansfield Lease Agreement, the Assignment and Assumption of Mansfield Development Agreement, the Xxxx of Sale and Assignment Agreements, the Assignments and Assumptions of Contracts, the Assignments of Water Documents, the Assignments and Assumptions of Warranties and Guaranties and Licenses and Permits, the Assignment and Assumption of Cowboys GP Interest, the Assignment and Assumption of Cowboys LP Interest and the other documents required to be delivered by Seller to Escrow Holder pursuant to Section 10.3, (ii) the Title Policy in accordance with Section 5.3, (iii) the final Closing Statements, and (iv) conformed copies of the recorded documents;
10.5.2 Deliver to Seller (i) the Purchase Price (less any prorations and costs to be paid by Seller pursuant to Sections 10.6, (ii) fully executed originals (in counterparts) of each Assignment and Assumption of Lake Concession Agreement, the Assignment and Assumption of Mansfield Lease Agreement, Xxxx of Sale and Assignment Agreements, Assignments and Assumptions of Contracts, Assignments of Water Documents, Assignments and Assumptions of Warranties and Guaranties and Licenses and Permits, the Assignment and Assumption of Cowboys GP Interest and the Assignment and Assumption of Cowboys LP Interest, (iii) the final Closing Statements, and (iv) conformed copies of the recorded documents.
Section 10.6 Prorations and Closing Costs.
10.6.1 Property Seller and Buyer agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Proration Time”), for the proration items listed in this Section 10.6 (collectively, the “Proration Items”):
(a) All taxes and assessments on the Property for all prior years and all current year taxes and assessments that are due and payable on or before the Closing shall have been paid by Seller on or before the Closing, subject to proration with Buyer to be responsible for taxes and assessments relating to the period after the Proration Time. Accrued but not yet payable general real estate, personal property and ad valorem taxes and assessments for the current year only shall be prorated on the basis of the most recent available information, as adjusted by any known charges relating to the period during which the Closing occurs.
(b) All charges for gas, electricity, water, telephone, sewer and other utilities shall be prorated as of the Proration Time, based on meter reading (if available) taken on the
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day prior to Closing, or on the basis of the most recent available information, as reasonably adjusted to account for known variances from usage that would not otherwise be reflected in such information. Buyer shall transfer all utilities to its own name or Premier’s name on the Closing Date. Seller shall reasonably cooperate with Buyer to transfer the utilities into Buyer’s or Premier’s name in connection with the Closing.
(c) Any income or expense items under the Contracts shall be prorated as of the Proration Time.
(d) All periodic membership dues or other periodic membership charges (other than membership initiation fees, which shall not be prorated) that have been collected by Property Seller shall be prorated as of the Proration Time.
(e) Buyer shall receive a credit to the Purchase Price in the amount of all deposits for Bookings to take place on or after the Closing.
(f) Buyer shall receive a credit to the Purchase Price for fifty percent (50%) for all merchandise gift certificates and rain checks redeemable at the Golf Club and sold or issued before the Closing but neither redeemed nor expired as of the Closing.
(g) Buyer shall pay to Property Seller at Closing an amount for Seller’s Receivables as provided below (the “Seller’s Receivables Amount”). Seller’s Receivables which are sixty (60) days or less old from the initial billing date shall be paid at one hundred percent (100%). Seller’s Receivables which are more than sixty (60) days but less than one hundred twenty (120) days old from the initial billing date shall be paid at fifty percent (50%). Seller’s Receivables which are one hundred twenty (120) days old or greater shall be paid at zero percent (0%). The term “Seller’s Receivables” means: (1) delinquent or uncollected membership dues and charges or fees, golf cart fees, handicap fees, driving range fees, golf club storage fees, locker fees and trail fees with respect to the Golf Clubs as of the Proration Time; (2) unpaid amounts with respect to tournaments, banquets, meetings and other functions held at the Golf Clubs prior to the Proration Time; and (3) any other receivables of Property Seller with respect to the Golf Clubs which, as of the Proration Time, are payable or past due.
(h) Buyer shall pay to Property Seller an amount equal to Property Seller’s cost for the Goods and Inventory.
(i) Any other items of income or expense with respect to the Property shall be prorated as of the Proration Time. Without limiting the generality of the preceding sentence, (i) accounts receivable that represent xxxxxxxx for goods and services to be rendered after the Proration Time shall be for the account of Buyer, (ii) pre-paid expense which are intended to benefit to the Property after the Proration Time shall be borne by Buyer, and (iii) refunds to the extent relating to the period on or prior to the Proration Time shall be for the account of Property Seller.
10.6.2 Property Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Buyer will be charged and credited for all of the Proration Items relating to the period after the
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10.6.3 Property Seller shall pay (a) the cost of releasing or reconveying any mortgage or deed of trust encumbering the Property for any portion of Property Seller’s debt not assumed by Buyer, (b) one-half of the Escrow Agent’s escrow fee and (c) any additional costs and charges customarily charged to sellers in accordance with common escrow practices in Dallas County, Texas, other than those costs and charges specifically required to be paid by Buyer hereunder. Buyer shall pay (a) one-half of the Escrow Agent’s escrow fee, (b) all of the costs associated with the issuance of the Title Commitment and Title Policy, including the costs of any endorsements Buyer may require in accordance with Section 5.3, (c) the recording fees required in connection with the transfer of the Property to Buyer, and (d) any additional costs and charges customarily charged to buyers in accordance with common escrow practices in Dallas County, Texas, other than those costs and charges specifically required to be paid by Property Seller hereunder. In addition to the foregoing, Buyer shall be responsible for any costs of updating the Existing Surveys or otherwise conforming the Existing Surveys to the requirements for issuance of the Title Policy or for any new survey that may be required for issuance of the Title Policy.
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10.6.4 Notwithstanding anything in this Section 10.6 to the contrary, there shall be no prorations of any kind with respect to the sale of the Cowboys Owner or the Cowboys Golf Club.
Section 11.2 Risk of Loss and Insurance Proceeds.
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of the Purchase Price allocated to the affected Golf Club or the Cowboys Ownership Interest as shown on Schedule 11.2.1 attached hereto, and (b) upon the Closing, there shall be a credit against the Purchase Price due hereunder equal to the amount of any insurance proceeds or condemnation awards collected by Seller as a result of any such damage or destruction or condemnation to the Property, plus the amount of any insurance deductible, less any sums expended by Seller toward the restoration or repair of the Property or in collecting such insurance proceeds or condemnation awards. If the proceeds or awards have not been collected as of the Closing, then such proceeds or awards shall be assigned to Buyer, except to the extent needed to reimburse Seller for sums paid to third parties prior to the Closing to repair or restore the Property or for sums reasonably paid to third parties to collect any such proceeds or awards. Notwithstanding anything herein to the contrary, the parties acknowledge and agree that there shall be no credit or assignment of insurance or condemnation proceed with respect to the Cowboys Golf Club, as the handling of such proceeds is subject to the terms of the Cowboys LP Agreement.
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If to Seller: | c/x Xxxxxxxxx Real Estate Partners, L.L.C. 00000 Xxxx Xxxx Xxxxx 000 Xxxxxx, Xxxxx 00000 Attn: Xxxxxxx X. Xxx, Esq. Xxxxx Xxxxx Facsimile: (000) 000-0000 | |
and to: | c/o Evergreen Alliance Golf Limited, L.P. 0000 XXX Xxxxxxx, Xxxxx 000 Xxxxxx, Xxxxx 00000 Attn: Xxx X. Xxxxxx Xxxx Xxxxx Xxxxxxx, Esq. Xxxxx Xxxxxxxx Facsimile: (000) 000-0000 | |
and to: | Addison Law Firm 00000 Xxxxxx Xxxxx, Xxxxx 000 Xxxxxx, Xxxxx 00000 Attn: Xxxxxxx X. Xxxxxx, Esq. Xxxxxx Xxxxxxx, Esq. Facsimile: (000) 000-0000 | |
If to Buyer: | CNL INCOME PARTNERS, LP 000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx, Xxxxxxx 00000 Attention: Xxxxxx X. Xxxxxxx, Chief Financial Officer Attention: Xxx Xxxxxxx, Vice President Corporate Counsel Facsimile: 000-000-0000 | |
with Copies to: | Lowndes, Drosdick, Doster, Xxxxxx & Xxxx, P.A. 000 X. Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000 Attention: Xxxxxxx X. Xxxxxx, Esq. Facsimile: 000-000-0000 |
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If to EscrowAgent: | The Talon Group, a division of First American Title Insurance Company 000 X. Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxx 00000 Attn: Xxxxxxx Xxxxx, Esq. Facsimile: 000-000-0000 |
Any such notices may be sent by (a) certified mail, return receipt requested, in which case notice shall be deemed delivered five (5) business days after deposit, postage prepaid in the U.S. mail, (b) a nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) business day after deposit for next business day delivery with such courier, or (c) facsimile transmission, in which case notice shall be deemed delivered upon electronic verification that transmission to recipient was completed. The above addresses and facsimile numbers may be changed by written notice to the other party; provided that no notice of a change of address or facsimile number shall be effective until actual receipt of such notice. Copies of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice.
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Section 11.15 Time of Essence. Time is of the essence of this Agreement.
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SELLER: | GOLF COURSE PARTNERS, LTD., a Texas limited partnership | |||||
By: | EVERGREEN ALLIANCE GOLF LIMITED, L.P., a Delaware limited partnership, its general partner | |||||
By: | EAGL GP, LLC, | |||||
a Delaware limited liability | ||||||
company, its general partner | ||||||
By: | /s/ Xxxxxxx X. Xxx | |||||
Name: | Xxxxxxx X. Xxx | |||||
Title: | Vice President | |||||
EAGL ACQUISITION HOLDINGS, L.P., a Delaware limited partnership, its general partner | ||||||
By: | EAGL Acquisition GP, LLC, | |||||
a Delaware limited liability | ||||||
company, its general partner | ||||||
By: | /s/ Xxxxxxx X. Xxx | |||||
Name: | Xxxxxxx X. Xxx | |||||
Title: | Vice President | |||||
EAGL MANSFIELD, L.P., a Delaware limited partnership | ||||||
By: | EAGL Xxxxxxxxx XX, LLC, its general partner | |||||
By: | /s/ Xxxxxxx X. Xxx | |||||
Name: | Xxxxxxx X. Xxx | |||||
Title: | Vice President | |||||
EVERGREEN ALLIANCE GOLF LIMITED, L.P., a Delaware limited partnership | ||||||
By: | /s/ Xxxxxxx X. Xxx | |||||
Name: | Xxxxxxx X. Xxx | |||||
Title: | Vice President |
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BUYER: | CNL INCOME PARTNERS, LP, a Delaware limited partnership | |||
By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx | |||
Title: | Executive Vice President |
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EAGL PARENT joins herein for the purposes of the representations and warranties it give in Section 7.2 and shall only be included with the term “Seller” for provisions which relate to the representations and warranties of Section 7.2.
EAGL PARENT: | XXXXXXXXX EAGL PARENT, L.L.C. a Delaware limited liability company | |||
By: | /s/ Xxxxxxx X. Xxx | |||
Name: | Xxxxxxx X. Xxx | |||
Title: | Vice President |
ESCROW AGENT:
The Escrow Agent is executing this Agreement to evidence its agreement to hold the Deposit and act as escrow agent in accordance with the terms and conditions of this Agreement.
THE TALON GROUP, A DIVISION OF FIRST AMERICAN TITLE INSURANCE COMPANY | ||||
By: |
| |||
Name: |
| |||
Title: |
|
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EXHIBITS TO AGREEMENT OF SALE AND PURCHASE
BETWEEN
GOLF COURSE PARTNERS, LTD.,
a Texas limited partnership (“Lake Seller”) and
EAGL MANSFIELD, L.P.,
a Delaware limited partnership (“Mansfield Seller”)
(collectively “Seller”)
and
CNL INCOME PARTNERS, LP
(“Buyer”)
EXHIBITS
LAKE LAND | A-1 | |
MANSFIELD LAND | A-2 | |
LAKE PERSONAL PROPERTY | B-1 | |
MANSFIELD PERSONAL PROPERTY | B-2 | |
EXISTING SURVEYS | C | |
ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT FORM | D | |
ASSIGNMENT AND ASSUMPTION OF MANSFIELD AGREEMENT FORM | E | |
INTENTIONALLY OMITTED | F | |
XXXX OF SALE AND ASSIGNMENT AGREEMENT FORM | G | |
ASSIGNMENT OF APPROVED CONTRACTS FORM | H | |
ASSIGNMENT OF WATER DOCUMENTS FORM | I | |
ASSIGNMENT OF WARRANTIES AND GUARANTIES AND | ||
LICENSES AND PERMITS FORM | J | |
ASSIGNMENT AND ASSUMPTION OF COWBOYS GP INTEREST | K | |
ASSIGNMENT AND ASSUMPTION OF COWBOYS LP INTEREST | L |
SCHEDULES
ARMY CORPS LEASE | 1.1.3 | |
LAKE CONTRACTS | 1.1.22(a) | |
ADVANCE BOOKINGS AT THE LAKE PARK GOLF CLUB | 1.1.22(a)(i) | |
MANSFIELD CONTRACTS | 1.1.22(b) | |
ADVANCE BOOKINGS AT THE MANSFIELD NATIONAL GOLF CLUB | 1.1.22(b)(i) | |
GOLF PLAY AGREEMENTS | 1.1.22(c) | |
EAGL CONTRACTS | 1.1.22(d) | |
COWBOYS CONTRACTS | 1.1.23(a) | |
ADVANCE BOOKINGS AT COWBOYS GOLF CLUB | 1.1.23(a)(i) | |
EXCLUDED PROPERTY | 1.1.44 | |
MANSFIELD DEVELOPMENT AGREEMENT | 1.1.75 | |
LAKE CONCESSION AGREEMENT | 2.1.1 | |
MANSFIELD LEASE AGREEMENT | 2.2.1 | |
LICENSES AND PERMITS | 4.2(a) | |
LIQUOR LICENSES | 4.2(b) | |
EXCLUDED PROPERTY RECORDS | 4.4 | |
CONSENTS | 4.10 | |
LITIGATION | 7.1(d) | |
TAXES | 7.1(j) | |
LITIGATION AGAINST EAGL OR COWBOYS INTEREST | 7.2(f) | |
INSURANCE MINOR LOSS | 11.2.1 | |
INSURANCE MAJOR LOSS | 11.2.2 |