PURCHASE AGREEMENT
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by and between
TRI-TOWN SPORTS, INC.
Seller,
and
EASTON FAMILY GOLF CENTERS, INC.,
Purchaser
PREMISES:
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx
PURCHASE AGREEMENT
PURCHASE AGREEMENT, made as of the 26th day of September, 1996 (this
"Agreement"), by and between TRI-TOWN SPORTS, INC., a Massachusetts
corporation having an address at 0000 Xxxxxxxxxx Xxxxxxx, Xxxxx 000X, Xxxxxx,
Xxxxxxxxxxxxx 00000 ("Seller"), and EASTON FAMILY GOLF CENTERS, INC., a
Delaware corporation having an address at 000 Xxxxxxxxxxx Xxxx, Xxxxx 000X,
Xxxxxxxx, Xxx Xxxx 00000 ("Purchaser").
W I T N E S S E T H :
WHEREAS, Seller is the owner of certain real property located at 000
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 and more particularly
described on Exhibit A attached hereto and made a part hereof (the "Land") and
the buildings and improvements located on the Land (the "Improvements" and,
together with the Land, the "Premises");
WHEREAS, Seller operates a driving range and related facilities at the
Premises under the name "Xxxxx Golf Center" (the "Business"); and
WHEREAS, Seller wants to sell the Premises to Purchaser, and Purchaser
wants to purchase the Premises from Seller, on the terms, and subject to the
conditions, set forth herein.
NOW, THEREFORE, in consideration of TEN ($10.00) DOLLARS, the terms and
conditions set forth herein, and other good and valuable consideration, the
mutual receipt and sufficiency of which are hereby acknowledged, the parties
hereby agree to the foregoing and as follows:
1. Agreement to Sell and Purchase.
1.1 Property to be Purchased by Purchaser. Seller agrees to sell
and convey to Purchaser, and Purchaser agrees to purchase and acquire from
Seller, upon the terms and conditions hereinafter set forth, all of Seller's
right, title and interest in and to the following property (collectively, the
"Property"):
1.1.1 the Premises;
1.1.2 the easements, rights of way,
appurtenances and other rights and benefits of Seller in and to the Premises,
including without limitation, all of Seller's interest in any air rights,
water rights and irrigation rights;
1.1.3 all furnishings, fixtures, machinery,
equipment, vehicles and personalty attached or appurtenant to or used in
connection with the Premises that are owned by Seller, and all inventories,
supplies, sales, marketing and instructional materials of every kind and
description relating to the Business, wherever located, including without
limitation, the items described on Exhibit B attached hereto and made a part
hereof (the "Personal Property");
1.1.4 the files, books, notices and other
correspondence from any governmental agencies, and other records used or
employed by Seller or its affiliates in connection with the ownership and/or
operation of the Premises and the Business (collectively, the "Records");
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1.1.5 any consents, authorizations, variances,
waivers, licenses, certificates, permits and approvals held by or granted to
Seller in connection with the ownership of the Premises (collectively, the
"Permits");
1.1.6 the contracts, leases and other
agreements of or relating to the Business described on Exhibit C attached
hereto and made a part hereof, except to the extent the same relate solely to
any Retained Assets or Retained Liabilities (as hereinafter defined) (the
"Contracts");
1.1.7 all accounts receivable of Seller arising
out of the sale of goods or services rendered at the Premises or otherwise in
connection with the Business on or after July 15, 1996 (the "Effective Date");
1.1.8 any manufacturers' and vendors'
warranties and guarantees, except to the extent the same relate solely to any
Retained Assets or Retained Liabilities (the "Claims"); and
1.1.9 any other properties and assets of every
kind and nature, real or personal, tangible or intangible, relating in any way
whatsoever to the Premises or the Business, except to the extent the same
relate solely to the Retained Assets or Retained Liabilities.
1.2 Assets to be Retained by Seller. Anything herein to the
contrary notwithstanding, Seller shall not sell, and Purchaser shall not
acquire, the following assets of Seller (the "Retained Assets"):
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1.2.1 all trade accounts receivable arising out of
the sale of goods or services prior to the Effective Date;
1.2.2 any rights of Seller with respect to insurance
policies owned by Seller or for which Seller is the named insured;
1.2.3 all cash, funds in bank accounts and cash
equivalents existing as of the Effective Date hereof; and
1.2.4 any patents, trademarks, trademark
registrations, copyrights, copyright registrations, trade names and all
registrations thereof and all applications for any of the foregoing, whether
issued or pending, if any, and all goodwill associated with any of the
foregoing (the "Intangible Assets").
1.3 Assumption of Certain Liabilities. Purchaser shall assume
and agree to pay and discharge when due all liabilities and obligations of
Seller under the Contracts to the extent the same arise from and after the
Effective Date (the "Assumed Liabilities").
1.4 Liabilities to be Retained by Purchaser. Seller shall retain,
and Purchaser shall not assume, perform, discharge or pay, and shall not be
responsible for, any and all liabilities or obligations of any nature
whatsoever in connection with or relating to the Property, Seller or the
Business or any predecessor owner of the Property or the Business other than
the Assumed Liabilities (collectively, the "Retained Liabilities").
2. Consideration.
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2.1 The purchase price for the Property is Two Million Six Hundred
Thousand Dollars ($2,600,000.00) payable as follows:
2.1.1 One Million Nine Hundred Thousand Dollars
($1,900,000.00), subject to adjustment as hereinafter provided, payable on the
date hereof in cash, or by certified or bank check or by the wire transfer of
funds; and
2.1.2 Seven Hundred Thousand Dollars ($700,000.00)
evidenced by four promissory notes made by Purchaser in favor of Seller (the
"Promissory Notes") secured by a first through fourth mortgage on the Premises
in the form of Exhibit D attached hereto and made a part hereof. Such
Promissory Notes shall be guaranteed by Family Golf Centers, Inc.
3. Title; Permitted Exceptions.
3.1 Seller will convey the Property to Purchaser, free and clear
of any and all liens, charges, encumbrances, mortgages, pledges, security
interests, easements, agreements and other interests and adverse claims
(collectively, "Encumbrances"), other than the matters set forth in Exhibit E
attached hereto and made a part hereof (the "Permitted Exceptions").
3.2 Purchaser may order an examination of title from a title
company licensed or authorized to issue title insurance in the State of
Massachusetts ("Title Company"), and shall cause a copy of any title report to
be forwarded to Seller's attorney upon receipt. If a title examination shall
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disclose any Encumbrances other than the Permitted Exceptions, Seller shall
cause the same to be discharged of record or otherwise cured.
3.3 If a search of the title discloses judgments, bankruptcies or
other returns against other persons having names the same as or similar to
that of Seller, Seller will on request deliver to the Title Company or
Purchaser an affidavit showing that such judgments, bankruptcies or other
returns are not against Seller, in form sufficient to permit deletion of such
exception from the title policy.
4. Apportionments.
4.1 The parties hereto agree that (i) all operating expenses of
Seller relating to the Premises (i.e., real estate taxes, utilities, cost of
inventories advertising, collections, fees, hired services, insurance,
miscellaneous expenses, postage, repairs and maintenance, supplies, taxes and
wages, but specifically not including interest on indebtedness, professional
fees and expenses, travel, lodging, or depreciation), and (ii) all income of
Seller, shall be apportioned between Seller and Purchaser as of the Effective
Date based on the portion of each such expense or revenue attributable to the
period falling on or before the Effective Date on the one hand, which Seller
shall bear the responsibility and benefit of, and the portion of each such
expense or revenue attributable to the period falling after the Effective
Date, on the other hand, which Purchaser shall bear the responsibility and
benefit of
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(the "Adjustment"). The expenses and liabilities for which Seller shall be
liable pursuant to this Section shall be included within the meaning of the
term "Retained Liabilities".
4.2 To the extent that any of the prorations made pursuant to this
Article are based upon estimates of payments to be made and/or expenses to be
incurred by Purchaser subsequent to the Effective Date, or either party
discovers any errors in or omissions in respect of the Adjustment, Seller and
Purchaser agree to adjust such prorations promptly upon receipt by Seller or
Purchaser, as the case may be, of such payments or of bills or other
documentation setting forth the actual amount of such expenses.
4.3 Seller and Purchaser shall maintain and make available to each
other any books or records necessary for the adjustment of any item pursuant
to this Article. The provisions of this Article shall survive the closing of
the transactions described herein (the "Closing").
5. The Closing.
5.1 The Closing of the transaction provided for in this Agreement
shall take place simultaneously with the execution and delivery of this
Agreement (the actual date of the Closing being referred to herein as the
"Closing Date").
5.2 At the Closing, Seller shall deliver or cause to be delivered
to Purchaser physical possession of the Property (receipt of which may be
actual or constructive) and the following:
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5.2.1 a quitclaim deed with covenants against
grantor's acts, duly executed and acknowledged by Seller, in proper statutory
form for recording, so as to convey to Purchaser fee simple title to the
Premises, subject to and in accordance with the provisions of this Agreement
(the "Deed");
5.2.2 a xxxx of sale conveying, transferring
and selling to Purchaser all right, title and interest of Seller in and to all
of the Personal Property, which xxxx of sale shall contain a warranty that
such property is free and clear of all Encumbrances other than the Permitted
Exceptions, duly executed and acknowledged by Seller;
5.2.3 an assignment and assumption agreement
(the "Assignment and Assumption Agreement") assigning to Purchaser all of
Seller's right, title and interest in and to the Contracts, the Permits and
the Claims, duly executed and acknowledged by Seller;
5.2.4 a settlement statement (the "Settlement
Statement") setting forth the amounts paid by or on behalf of and/or credited
to each of Purchaser and Seller pursuant to this Agreement;
5.2.5 an owner's affidavit of title;
5.2.6 a Certificate or Certificates of
Occupancy for all Improvements;
5.2.7 original counterparts of each of the
Contracts;
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5.2.8 any transfer tax or other return required
by any applicable governmental authority in connection with the sale of the
Property, duly executed and acknowledged by Seller;
5.2.9 an affidavit (the "FIRPTA Affidavit")
duly executed and acknowledged by Seller pursuant to Section 1445 (b)(2) of the
Internal Revenue Code of 1986, as amended, stating that Seller is not a
foreign person within the meaning of such provision;
5.2.10 keys to all locks relating to the
Property, appropriately labeled;
5.2.11 all other instruments and documents to
be executed, acknowledged where appropriate and/or delivered by Seller to
Purchaser pursuant to any of the other provisions of this Agreement; and
5.2.12 such other documents as may be
reasonably required by Purchaser's counsel in connection with this transaction.
5.3 At the Closing, Purchaser shall deliver or cause to be
delivered to Seller the following:
5.3.1 the cash consideration referred to in
Section 2 hereof;
5.3.2 the Promissory Notes referred to in
Section 2 hereof;
5.3.3 the Assignment and Assumption Agreement,
duly executed and acknowledged by Purchaser;
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5.3.4 the Settlement Statement, duly executed
and acknowledged by Purchaser;
5.3.5 all other instruments and documents to
be executed, acknowledged where appropriate and/or delivered by Purchaser to
Seller; and
5.3.6 such other documents as may be reasonably
required by Seller's counsel in connection with this transaction.
6. Representations and Warranties.
6.1 Seller represents and warrants to Purchaser as follows:
6.1.1 Organization; Power and Authority.
Seller is a corporation duly formed, validly existing and in good standing
under the laws of the State of Massachusetts, and has all requisite power and
authority to carry on its business as it is now being conducted, to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
6.1.2 Due Authorization and Execution; Effect
of Agreement. The execution, delivery and performance by Seller of this
Agreement and the consummation by Seller of the transactions contemplated
hereby have been duly authorized by all necessary corporate action required to
be taken on the part of Seller. This Agreement has been duly and validly
executed and delivered by Seller and constitutes the valid and binding
obligation of Seller, enforceable in accordance with its terms, except to the
extent that such
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enforceability (a) may be limited by bankruptcy, insolvency, or other similar
laws relating to creditors' rights generally; and (b) is subject to general
principles of equity.
6.1.3 Consents. No consent, approval or
authorization of, exemption by, or filing with, any governmental or regulatory
authority or any third party is required in connection with the execution,
delivery and performance by Seller of this Agreement, except for consents,
approvals, authorizations, exemptions and filings, if any, which have been
obtained.
6.1.4 Compliance with Applicable Laws. Seller
is not engaging in any activity or omitting to take any action as a result of
which Seller is in violation of any material law, rule, regulation, ordinance,
statute, order, injunction or decree, or any other requirement of any court or
governmental or administrative body or agency, applicable to the Property or
the Business, and neither the execution and delivery by Seller of this Agreement
or of any of the other agreements and instruments to be executed and delivered
by it pursuant hereto, the performance by Seller of its obligations hereunder
or thereunder or the consummation of the transactions contemplated hereby or
thereby will result in any such violation. Seller is in compliance with all
material requirements imposed in writing by any insurance carrier of Seller to
the extent such carrier is an insurer or indemnitor of the Property. The
Premises are not subject to any notice of violation of law, municipal
ordinance,
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orders or requirements issued by any building department or other governmental
agency or subdivision having jurisdiction.
6.1.5 Permits. To the best of Seller's
knowledge all Permits required by any federal, state, or local law, rule or
regulation and necessary for the operation of the Property and the Business as
currently being conducted have been obtained and are currently in effect. No
registrations, filings, applications, notices, transfers, consents, approvals,
orders, qualifications, waivers or other actions of any kind are required by
virtue of the execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby (a) to avoid the loss of any Permit or
the violation of any law, regulation, order or other requirement of law, or
(b) to enable Purchaser to continue the operation of the Property as presently
conducted after the Closing. The current use and occupation of any portion of
the Property does not violate any of, and, where applicable, is in material
compliance with, the Permits, any applicable deed restrictions or other
covenants, restrictions or agreements including without limitation, any of the
Permitted Exceptions, site plan approvals, zoning or subdivision regulations
or urban redevelopment plans applicable to the Premises.
6.1.6 Title to Assets. Seller has good and
marketable title to the Property free and clear of all Encumbrances other than
the Permitted Exceptions.
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6.1.7 Contracts. Except as set forth on
Exhibit C, Seller is not a party to any leases, contracts, orders or
agreements relating to the Property or the Business (written or otherwise)
(collectively, "Contracts"). Exhibits C sets forth a full and complete
description of the Contracts described therein, and none of such Contracts
have been amended or modified except as reflected on said Exhibits. Seller is
not holding any security deposits under any of said Contracts. Each of the
Contracts are in full force and effect and no party under any such Contract,
including Seller, is in default, or has sent or received notice of default, in
any respect of any such Contract.
6.1.8 Condition of the Improvements. There are
no material structural or mechanical defects in the Improvements, and there
are no leaks in any roof on any Improvement.
6.1.9 Condition of Personal Property. To the
best of Seller's knowledge the Personal Property is in good operating
condition and repair, ordinary wear and tear excepted, and is adequate,
suitable and sufficient to meet the needs of and to operate the Property as
currently conducted.
6.1.10 Environmental Matters.
6.1.10.1 As used in this Agreement
"Hazardous Material" shall mean: (i) any "hazardous substance" as now defined
pursuant to the Comprehensive Environmental Response, Compensation and
Liability
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Act of 1980 ("CERCLA"), 42 U.S.C. ss. 9601(33); (ii) any "pollutant or
contaminant" as defined in 42 U.S.C. ss. 9601(33); (iii) any material now
defined as "hazardous waste" pursuant to 40 C.F.R. Part 261; (iv) any
petroleum, including crude oil and any fraction thereof; (v) natural or
synthetic gas usable for fuel; (vi) any "hazardous chemical" as defined
pursuant to 29 C.F.R. Part 1910; (vii) any asbestos, asbestos containing
material, polychlorinated biphenyl ("PCB"), or isomer of dioxin, or any
material or thing containing or composed of such substance or substances; and
(viii) any other pollutant, contaminant, chemical, or industrial or hazardous,
toxic or dangerous waste, substance or material, defined or regulated as such
in (or for purposes of any Environmental Law (as hereinafter defined) and any
other toxic, reactive or flammable chemicals.
6.1.10.2 To the best of Seller's
knowledge, there is no Hazardous Material at, under or on the Premises and
there is no ambient air, surface water, groundwater or land contamination
within, under, originating from or relating to the Premises. Seller has not,
and has not caused to be, manufactured, processed, distributed, used, treated,
stored, disposed of, transported or handled any Hazardous Material at, on or
under the Premises.
6.1.10.3 To the best of Seller's
knowledge, seller has no obligation or liability imposed or based upon any
provision under any foreign, federal, state or local law, rule, or regulation
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or common law, or under any code, order, decree, judgment or injunction
applicable to Seller or the Property or any notice, or request for information
issued, promulgated, approved or entered thereunder, or under the common law,
or any tort, nuisance or absolute liability theory, relating to public health
or safety, worker health or safety, or pollution, damage to or protection to
the environment, including without limitation, laws relating to emissions,
discharges, releases or threatened releases of Hazardous Material into the
environment (including without limitation, ambient air, surface water,
groundwater, land surface or subsurface), or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, generation,
disposal, transport or handling of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes (hereinafter collectively
referred to as "Environmental Laws").
6.1.10.4 Seller has not been subject
to any civil, criminal or administrative action, suit, claim, hearing, notice
of violation, investigation, inquiry or proceeding for failure to comply with,
or received notice of any violation or potential liability under the
Environmental Laws in respect of the Premises.
6.1.10.5 The Premises are not (a)
listed or proposed for listing on the National Priority List or (b) listed on
the Comprehensive Environmental Response, Compensation, Liability Information
System List ("CERCLIS") promulgated pursuant to CERCLA, 42 U.S.C. ss. 9601(9),
or
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any comparable list maintained by any foreign, state or local government
authority.
6.1.10.6 To the best of Seller's
knowledge, there are no underground storage tanks at the Premises other than
as disclosed on the Phase I environmental report commissioned by the Purchaser
in connection with this transaction and Seller further warrants and represents
that any prior use and operation of underground storage tanks by Seller has
been in compliance with all Environmental Laws.
6.1.11 Tax Proceedings. There are no
proceedings pending regarding the reduction of real estate taxes or
assessments in respect of the Premises.
6.1.12 Utilities. All water, storm and
sanitary sewer, gas, electricity, telephone and other utilities adequately
service the Premises, enter the Premises through lands as to which valid
public or private easements exist that will inure to the benefit of Purchaser
and the Premises are furnished by facilities of public utilities and the cost
of installation of such utilities has been fully paid.
6.1.13 Access. To the best of Seller's
knowledge, there are no federal, state, county, municipal or other
governmental plans to change the highway or road system in the vicinity of the
Premises which could materially restrict or change access from any such
highway or road to the Premises or any pending or threatened condemnation or
eminent domain proceedings
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relating to or affecting the Premises. All roads bounding the Premises are
public roads and the Deed is the only instrument necessary to convey to
Purchaser full access to and the right to use such roads freely, subject to
the provisions of Massachusetts Law relating to roads and highways, as well as
to convey all rights appurtenant to the Premises in such roads.
6.1.14 Insurance Requirements. All
requirements or recommendations by any insurer or by any board of fire
underwriters or similar body in respect of the Property have been satisfied.
6.1.15 Litigation. There is no action or
proceeding (zoning or otherwise) or governmental investigation pending, or, to
the best of Seller's knowledge, threatened against, or relating to, Seller
(insofar as it relates to the Premises or the Business), the Premises, the
Business or the transactions contemplated by this Agreement, nor is there any
basis for any such action, proceeding or investigation.
6.1.16 Assessments. There are no special or
other assessments for public improvements or otherwise now affecting the
Premises nor does Seller know of (a) any pending or threatened special
assessments affecting the Premises or (b) any contemplated improvements
affecting the Premises that may result in special assessments affecting the
Premises.
6.1.17 Employee Agreements. There are no union
or employment contracts or agreements (written or oral) involving employees of
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Seller or its affiliates affecting the Property or the Business which will
survive the Closing. All employees of Seller will have been terminated as of
the date hereof.
6.1.18 Work at the Premises. No services,
material or work have been supplied to the Premises for which payment has not
been made in full.
6.1.19 Financial Condition. Seller has
delivered to Purchaser, or will promptly upon execution hereof deliver, true
and correct copies of audited financial statements consisting of balance
sheets and income statements of Seller as of December 31, 1995. Seller has
delivered true and correct copies of monthly internal reports for the months
January through September, 1996. Each such balance sheet presents fairly the
financial condition, assets and liabilities of Seller as of its date; each
such statement of income presents fairly the results of operations of Seller
for the period indicated. The financial statements referred to in this Section
are in accordance with the books and records of Seller. Since December 31,
1995 and since June 30, 1996: (a) there has at no time been a material adverse
change in the financial condition, results of operations, businesses,
properties, assets, liabilities or future prospects of Seller, the Property or
Business; (b) the Business has been conducted in all respects only in the
ordinary course; and (c) Seller has not suffered an extraordinary loss (whether
or not covered by insurance) or waived any right of substantial value.
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6.1.20 Full Disclosure. To the best knowledge
of Seller, none of the information supplied by Seller herein or in the
exhibits hereto contains any untrue statement of a material fact or omits to
state a material fact required to be stated herein or necessary in order to
make the statements herein, in light of the circumstances under which they are
made, not misleading.
6.2 Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to Seller as follows:
6.2.1 Organization; Power and Authority.
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power
and authority to carry on its business as it is now being conducted, to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby.
6.2.2 Due Authorization and Execution; Effect
of Agreement. The execution, delivery and performance by Purchaser of this
Agreement and the consummation by Purchaser of the transactions contemplated
hereby have been duly authorized by all necessary corporate action required to
be taken on the part of Purchaser. This Agreement has been duly and validly
executed and delivered by Purchaser and constitutes the valid and binding
obligation of Purchaser, enforceable in accordance with its terms. The
execution, delivery and performance by Purchaser of this Agreement and the
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consummation by Purchaser of the transactions contemplated hereby will not,
with or without the giving of notice or the lapse of time, or both, (a)
violate any provision of any law, rule or regulation to which Purchaser is
subject; (b) violate any order, judgment or decree applicable to Purchaser; or
(c) conflict with or result in a breach of or a default under any term or
condition of Purchaser's Certificate of Incorporation or By-Laws or any
agreement or other instrument to which Purchaser is a party or by which it or
its assets may be bound, except in each case, for violations, conflicts,
breaches or defaults which in the aggregate would not materially hinder or
impair the consummation of the transactions contemplated hereby.
6.3 Survival. The representations and warranties of the parties
made in this Article 6 shall survive the Closing.
7. Further Assurances. At any time and from time to time after the
Closing, Seller shall, at the request of Purchaser, execute and deliver any
further instruments or documents and take all such further action as Purchaser
may reasonably request in order to transfer into the name of Purchaser any and
all Property contemplated to be sold pursuant to this Agreement and to further
consummate the transactions contemplated by this Agreement. This Article shall
survive the Closing.
8. Brokers. Seller and Purchaser warrant and represent to each other
that they dealt with no broker, finder or similar agent or party who or which
might be entitled to a commission or compensation on account of introducing the
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parties, the negotiation or execution of this Agreement and/or the closing of
the transaction provided for herein. Purchaser and Seller hereby respectively
agree to indemnify and hold harmless the other party from and against all loss,
liability, damage and expense (including, without limitation, attorneys' fees)
imposed upon or incurred by the other party by reason of any claim for
commissions or other compensation for bringing about this transaction by any
broker, finder or similar agent or party other than the Brokers who claims to
have dealt with the indemnifying party in connection with this transaction. The
provisions of this Article shall survive the Closing or any termination of this
Agreement.
9. "As Is". Purchaser represents that it has inspected the Property
and is familiar with the physical condition thereof, and that in reliance upon
such inspection and the representations, warranties, covenants and agreements
of Seller contained herein, it agrees to accept the Property "as is", in its
condition at the date of this Agreement.
10. Costs and Fees. Documentary stamps for the Deed, deed transfer or
conveyancing taxes, if any, shall be payable by Seller, and in no event be
payable by Purchaser. Purchaser shall pay the expenses incurred in connection
with (a) the examination of title, (b) the issuance of an owner's policy of
title insurance for Purchaser, and (c) a survey of the Property. The Seller
shall pay the cost of obtaining four lender's policies of title insurance for
the Sellers. Any other similar costs not expressly provided for elsewhere in
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this Agreement shall be divided and borne in accordance with the usual
practices in the jurisdiction where the Premises are located. The provisions
of this Article shall survive the Closing.
11. Indemnification.
11.1 Subject to the further provisions of this Article, Seller
shall protect, defend, hold harmless and indemnify Purchaser, its officers,
directors, shareholders, employees, agents and affiliates, and their
respective successors and assigns, from, against and in respect of any and all
losses, liabilities, deficiencies, penalties, fines, costs, damages and
expenses whatsoever (including without limitation, reasonable professional
fees and costs of investigation, litigation, settlement, and judgment and
interest) ("Losses") that may be suffered or incurred by any of them arising
from or by reason of (i) any Retained Liability or other liability or
obligation of Seller which is not an Assumed Liability; (ii) the breach of any
representation, warranty, covenant or agreement of Seller contained in this
Agreement or in any document or other writing delivered pursuant to this
Agreement; and (iii) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses (including without limitation,
interest, penalties, reasonable legal fees and accounting fees) incident to the
foregoing and the enforcement of the provisions of this Section 11.1.
11.2 Subject to the further provisions of this Article, Purchaser
shall protect, defend, hold harmless and indemnify Seller, its partners,
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employees and agents, and its successors and assigns from, against and in
respect of any and all Losses that may be suffered or incurred by any of them
arising from or by reason of (i) any of the Assumed Liabilities on and after
the date hereof, (ii) the breach of any representation, warranty, covenant or
agreement of Purchaser contained in this Agreement or in any document or other
writing delivered pursuant to this Agreement; and (iii) any and all actions,
suits, proceedings, claims, demands, assessments, judgments, costs and
expenses (including without limitation, interest, penalties, reasonable legal
fees and accounting fees) incident to the foregoing and the enforcement of the
provisions of this Section 11.2.
11.3 Whenever a party hereto (such party and each of its
affiliates which is entitled to indemnification pursuant to any provision of
this Agreement, an "Indemnified Party") shall learn after the Closing of a
claim that, if allowed (whether voluntarily or by judicial or quasi-judicial
tribunal or agency), would give rise to an obligation of another party (the
"Indemnifying Party") to indemnify the Indemnified Party under any provision
of this Agreement, before paying the same or agreeing thereto, the Indemnified
Party shall promptly notify the Indemnifying Party in writing of all such
facts within the Indemnified Party's knowledge with respect to such claim and
the amount thereof (a "Notice of Claim"). If, prior to the expiration of
fifteen (15) days from the mailing of a Notice of Claim, the Indemnifying
Party shall request, in writing, that such claim not be paid, the Indemnified
Party shall not pay the
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same, provided the Indemnifying Party proceeds promptly, at its or their own
expense (including employment of counsel reasonably satisfactory to the
Indemnified Party), to settle, compromise or litigate, in good faith, such
claim. After notice from the Indemnifying Party requesting the Indemnified
Party not to pay such claim and the Indemnifying Party's assumption of the
defense of such claim at its or their expense, the Indemnifying Party shall
not be liable to the Indemnified Party for any legal or other expense
subsequently incurred by the Indemnified Party in connection with the defense
thereof. However, the Indemnified Party shall have the right to participate at
its expense and with counsel of its choice in such settlement, compromise or
litigation. The Indemnified Party shall not be required to refrain from paying
any claim which has matured by a court judgment or decree, unless an appeal is
duly taken therefrom and execution thereof has been stayed, nor shall the
Indemnified Party be required to refrain from paying any claim where the delay
in paying such claim would result in the foreclosure of a lien upon any of the
property or assets then held by the Indemnified Party. The failure to provide
a timely Notice of Claim as provided in this Section 11.3 shall not excuse the
Indemnifying Party from its or their continuing obligations hereunder;
however, the Indemnified Party's claim shall be reduced by any damages to the
Indemnifying Party resulting from the Indemnified Party's delay or failure to
provide a Notice of Claim as provided in this Section 11.3.
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11.4 For purposes of this Article, any assertion of fact and/or
law by a third party that, if true, would constitute a breach of a
representation or warranty made by a party to this Agreement or make
operational an indemnification obligation hereunder, shall, on the date that
such assertion is made, immediately invoke the Indemnifying Party's obligation
to protect, defend, hold harmless and indemnify the Indemnified Party pursuant
to this Article.
12. Bulk Sales. The parties agree to waive the requirements, if any, of
all applicable bulk sales laws. As an inducement to Purchaser to enter into
such waiver, Seller represents and warrants that (a) it will not be rendered
insolvent by the transactions contemplated by this Agreement, (b) all debts,
obligations and liabilities relating to the Property and Business that are not
expressly assumed by Purchaser under this Agreement will be promptly paid and
discharged by Seller as and when they become due, and (c) the sale of the
Property pursuant to this Agreement does not constitute a "bulk sale" within
the meaning of applicable law. Seller agrees to indemnify and hold Purchaser
harmless from, and reimburse Purchaser for, any loss, cost, expense, liability
or damage which Purchaser may suffer or incur by virtue of the noncompliance
by Seller or Purchaser with any law pertaining to fraudulent conveyance, bulk
sales or any similar law which might make the sale or transfer of any part of
the Property or Business ineffective as to creditors of or claimants against
Seller.
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13. Notices. All notices, demands, requests, consents or other
communications ("Notices") which either party may desire or be required to
give to the other hereunder shall be in writing and shall be delivered by
hand, overnight express carrier, or sent by registered or certified mail,
return receipt requested, postage prepaid, in either event, addressed to the
parties at their respective addresses first above set forth. A copy of any
Notice given by Seller to Purchaser shall simultaneously be given in either
manner provided above to Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxx, Esq. A
copy of any Notice given by Purchaser to Seller shall simultaneously be given
in either manner provided above to Roche, Carens & XxXxxxxxx, Xxx Xxxx Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx X. X'Xxxxxx, Xx., Esq.
Notices given in the manner aforesaid shall be deemed to have been given three
(3) business days after the day so mailed, the day after delivery to any
overnight express carrier and on the day so delivered by hand. Either party
shall have the right to change its address(es) for the receipt of Notices by
giving Notice to the other party in either manner aforesaid. Any Notice
required or permitted to be given by either party may be given by that party's
attorney.
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14. Miscellaneous.
14.1 This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns. Each of the
individuals comprising Seller shall be jointly and severally liable for each
and every covenant, agreement, obligation, representation and warranty of
Seller hereunder.
14.2 This Agreement shall be governed by, interpreted under and
construed and enforced in accordance with, the laws of the State of New York.
14.3 The captions or article headings in this Agreement are for
convenience only and do not constitute part of this Agreement.
14.4 This Agreement has been fully negotiated by the parties and
rules of construction construing ambiguities against the party responsible for
drafting agreements shall not apply.
14.5 It is agreed that, except where otherwise expressly provided
in particular Articles or Sections of this Agreement, none of the provisions
of this Agreement shall survive the Closing.
14.6 This Agreement (including the Exhibits annexed hereto)
contains the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior understandings, if any, with respect
thereto.
14.7 This Agreement may not be modified, changed, supplemented or
terminated, nor may any obligations hereunder be waived, except by written
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instrument signed by the party to be charged or by its agent duly authorized
in writing or as otherwise expressly permitted herein.
14.8 No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof or of any other agreement or provision herein contained. No extension
of the time for performance of any obligations or acts shall be deemed an
extension of the time for performance of any other obligations or acts.
14.9 This Agreement may be executed in one or more counterparts,
each of which when so executed and delivered shall be deemed an original, but
all of which taken together shall constitute but one and the same original.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
TRI-TOWN SPORTS, INC.
By:______________________
Name:
Title:
EASTON FAMILY GOLF CENTERS, INC.
By: _____________________
Name:
Title:
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