PURCHASE AGREEMENT
BY AND BETWEEN
FORE SEASONS GOLF, INC.
SELLER,
AND
MILWAUKEE FAMILY GOLF CENTERS, INC.,
PURCHASER
PREMISES:
0000 XXXXX XXXXXXXXX XXXX,
XXXXXXXXX, XXXXXXXXX
PURCHASE AGREEMENT
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PURCHASE AGREEMENT, made as of the 31st day of December, 1996 (this
"AGREEMENT"), by and between FORE SEASONS GOLF, INC., a Wisconsin corporation
having an address 0000 Xxxxx Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000
("SELLER"), MILWAUKEE FAMILY GOLF CENTERS, INC., a Delaware corporation having
an address at 000 Xxxxxxxxxxx Xxxx, Xxxxx 000X, Xxxxxxxx, Xxx Xxxx 00000
("PURCHASER") and FAMILY GOLF CENTERS, INC., a Delaware corporation having an
address at 000 Xxxxxxxxxxx Xxxx, Xxxxx 000X, Xxxxxxxx, Xxx Xxxx 00000
("PARENT").
W I T N E S S E T H :
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WHEREAS, Seller is the owner of certain real property located at
0000 Xxxxx Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx and more particularly
described on EXHIBIT A attached hereto and made a part hereof (the "LAND") and
the buildings and improvements located on the Land (the "IMPROVEMENTS" and,
together with the Land, the "PREMISES");
WHEREAS, Seller operates a golf driving range and related facilities
at the Premises under the name "Fore Seasons Golf Center" (the "BUSINESS");
WHEREAS, Purchaser is a wholly-owned subsidiary of Parent; 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-1 attached hereto and made a part hereof (the "PERSONAL
PROPERTY"), except specifically not including the items described on EXHIBIT
B-2 attached hereto and made a part hereof;
1.1.4 the files, books, notices and other correspondence
from any governmental agencies, and other records used or employed by Seller
or its affiliates in connection with the ownership and/or operation of the
Premises and the Business (collectively, the "RECORDS");
1.1.5 any consents, authorizations, variances, waivers,
licenses, certificates, permits and approvals (other than any liquor license)
held by or granted to Seller in connection with the ownership of the Premises
(collectively, the "PERMITS"), provided that such Permits are transferable by
Seller to Purchaser;
1.1.6 any manufacturers' and vendors' warranties and
guarantees, except to the extent the same relate solely to any Retained Assets
or Retained Liabilities (as such terms are hereinafter defined) (the
"CLAIMS"); and
1.1.7 any other properties and assets of every kind and
nature, real or personal, tangible or intangible, relating in any way
whatsoever to the Premises or the Business, except to the extent the same
relate solely to the Retained Assets or Retained Liabilities.
1.2 ASSETS TO BE RETAINED BY SELLER. Anything herein to the
contrary notwithstanding, Seller shall not sell, and Purchaser shall not
acquire, the following assets of Seller (the "RETAINED ASSETS"):
1.2.1 any rights of Seller with respect to insurance
policies owned by Seller or for which Seller is the named insured;
1.2.2 all cash, funds in bank accounts and cash
equivalents existing
as of the date hereof; and
1.2.3 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").
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1.3 ASSUMPTION OF CERTAIN LIABILITIES. Purchaser shall assume
all liabilities and obligations (the "ASSUMED LIABILITIES") of Seller under
the equipment leases described on EXHIBIT C attached hereto and made a part
hereof (the "EQUIPMENT LEASES") to the extent the same arise from and after
November 1, 1996 (the "EFFECTIVE DATE"). Seller shall retain, and Purchaser
shall not assume, perform, discharge or pay, and shall not be responsible for,
any and all liabilities or obligations of any nature whatsoever in connection
with or relating to the Property, Seller or the Business or any predecessor
owner of the Property or the Business other than the Assumed Liabilities
(collectively, the "RETAINED LIABILITIES").
2. CONSIDERATION. In consideration for the Property, Purchaser shall
pay to Seller Two Million Five Hundred Ninety Seven Thousand Five Hundred
Dollars ($2,597,500.00), subject to adjustment as hereinafter provided,
payable as follows:
2.1 One Million Six Hundred Fifty Five Thousand Two Hundred
Forty and 93/100 Dollars ($1,655,240.93), payable on the date hereof in cash,
or by certified or bank check or by the wire transfer of funds;
2.2 Seven Hundred Forty Two Thousand Fifty Nine and 07/100
Dollars ($742,259.07), by assuming that certain mortgage now encumbering the
Property in favor of Wisconsin Business Development (the "FIRST MORTGAGE");
and
2.3 Two Hundred Thousand Dollars ($200,000.00) payable in
accordance with that certain Second Mortgage Note (the "SECOND MORTGAGE NOTE")
being executed and delivered by Purchaser to Seller simultaneously with the
execution and delivery hereof, and which Second Mortgage Note shall be secured
by a second mortgage on the Premises (the "SECOND MORTGAGE").
3. TITLE; PERMITTED EXCEPTIONS. Seller will convey the Property to
Purchaser free and clear of any and all liens, charges, encumbrances,
mortgages, pledges, security interests, easements, agreements and other
interests and adverse claims (collectively, "ENCUMBRANCES"), other than the
First Mortgage, the Second Mortgage and the matters set forth in EXHIBIT D
attached hereto and made a part hereof (the "PERMITTED EXCEPTIONS").
4. APPORTIONMENTS.
4.1 The parties hereto agree that (a) all operating expenses of
Assignor relating to the Business (i.e., advertising, collections, fees, hired
services, insurance, miscellaneous expenses, postage, repairs and maintenance,
supplies, taxes, utilities, wages and interest on indebtedness, but
specifically not including professional fees and expenses, travel , lodging
and depreciation), and (b) all income of Assignor, shall be apportioned
between Assignor and Assignee as of Effective Date based on the portion
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of each such expense or revenue attributable to the period falling on or
before the Effective Date on the one hand, which Assignor 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 Assignee shall bear the responsibility and benefit of (the
"ADJUSTMENT"). The net Adjustment will be paid by the party owing the same to
the other in cash or by certified or official bank check or wire transfer. The
expenses and liabilities for which Assignor 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 portions of the Adjustment are based
upon estimates of payments to be made and/or expenses to be incurred by
Assignee subsequent to the Effective Date, or either party discovers any
errors in or omissions in respect of the Adjustment, Assignor and Assignee
agree to adjust such prorations promptly upon receipt by Assignor or Assignee,
as the case may be, of such payments or of bills or other documentation
setting forth the actual amount of such expenses.
4.3 Assignor and Assignee 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 shall take place simultaneously with the
execution and delivery of this Agreement (the actual date of the Closing being
referred to herein as the "CLOSING DATE").
5.2 At the Closing, Seller shall deliver or cause to be
delivered to Purchaser physical possession of the Property (receipt of which
may be actual or constructive) and the following:
5.2.1 a full warranty 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
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interest in and to the Equipment Leases, the Permits (to the extent
transferable by Seller) 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 a Certificate or Certificates of Occupancy for all
Improvements;
5.2.6 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;
5.2.7 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;
5.2.8 keys to all locks relating to the Property,
appropriately labeled;
5.2.9 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
5.2.10 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 Assignment and Assumption Agreement, duly
executed and acknowledged by Purchaser;
5.3.3 the Second Mortgage Note, duly executed and
acknowledged by Purchaser;
5.3.4 the Second Mortgage, duly executed and acknowledged
by Purchaser;
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5.3.5 the Settlement Statement, duly executed and
acknowledged by Purchaser;
5.3.6 the unconditional guaranty of payment and
performance by Parent of all of Purchaser's obligations and duties under the
Second Mortgage Note and the Second Mortgage the "GUARANTY");
5.3.7 all other instruments and documents to be executed,
acknowledged where appropriate and/or delivered by Purchaser to Seller; and
5.3.8 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 organized, validly existing and in good standing under the
laws of the State of Wisconsin, 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 enforceability (a) may be limited by bankruptcy, insolvency, or other
similar laws relating to creditors' rights generally; and (b) is subject to
general principles of equity.
6.1.3 CONSENTS. No consent, approval or authorization of,
exemption by, or filing with, any governmental or regulatory authority or any
third party is required in connection with the execution, delivery and
performance by Seller of this Agreement, except for consents, approvals,
authorizations, exemptions and filings, if any, which have been obtained.
6.1.4 COMPLIANCE WITH APPLICABLE LAWS. Seller is not
engaging in any activity or omitting to take any action as a result of which
Seller is in violation of any law, rule, regulation, ordinance, statute,
order, injunction or decree, or any other requirement of any court or
governmental or administrative body or agency, applicable
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to the Property or the Business, and neither the execution and delivery by
Seller of this Agreement or of any of the other agreements and instruments to
be executed and delivered by it pursuant hereto, the performance by Seller of
its obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby will result in any such violation.
Seller is in compliance with all material requirements imposed in writing by
any insurance carrier of Seller to the extent such carrier is an insurer or
indemnitor of the Property. The Premises are not subject to any notice of
violation of law, municipal ordinance, orders or requirements issued by any
building department or other governmental agency or subdivision having
jurisdiction.
6.1.5 PERMITS. All Permits required by any federal, state,
or local law, rule or regulation and necessary for Seller's operation of the
Property and the Business as currently being conducted have been obtained and
are currently in effect (except for the sale of beer or other alcohol), other
than Purchaser's qualification to do business as a foreign corporation in
Wisconsin and the issuance to Purchaser of a Wisconsin Sales Tax Certificate.
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 and those Encumbrances which will be fully paid at
Closing.
6.1.7 CONTRACTS. Seller is not a party to any leases,
contracts, orders or agreements relating to the Property or the Business
(written or otherwise) other than the Equipment Leases. Purchaser has been
provided with true, correct and complete copies of the Equipment Leases, and
the Equipment Leases have not been amended or modified in any way except as
expressly disclosed to Purchaser. The Equipment Leases are in full force and
effect and there exists no default, or any fact or circusmstance which, with
the giving of notice, the passage of time or both would constitute a default,
by Seller or the lessor under any of the Equipment Leases. Exhibit C attached
hereto sets forth the amounts necessary to pay each of the lessors under the
Equipment Leases in full.
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6.1.8 CONDITION OF THE IMPROVEMENTS. To the best of
Seller's knowledge, there are no material structural or mechanical defects in
the Improvements, and there are no leaks in any roof on any Improvement.
6.1.9 CONDITION OF PERSONAL PROPERTY. The Personal
Property is in good operating condition and repair, ordinary wear and tear
excepted, and is adequate, suitable and sufficient to meet the needs of and to
operate the Property as currently conducted.
6.1.10 ENVIRONMENTAL MATTERS.
6.1.10.1 As used in this Agreement "Hazardous Material"
shall mean: (I) any "hazardous substance" as now defined pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 U.S.C. 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 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,
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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 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 and Seller further warrants and
represents that it has no knowledge of any prior use and operation of
underground storage tanks at the Premises.
6.1.11 TAX PROCEEDINGS. There are no proceedings pending
regarding the reduction of real estate taxes or assessments in respect of the
Premises.
6.1.12 UTILITIES. All water, storm and sanitary sewer,
gas, electricity, telephone and other utilities adequately service the
Premises, enter the Premises through lands as to which valid public or private
easements exist that will inure to the benefit of Purchaser and the Premises
are furnished by facilities of public utilities and the cost of installation
of such utilities has been fully paid.
6.1.13 ACCESS. To the best of Seller's knowledge, there
are no federal, state, county, municipal or other governmental plans to change
the highway or road system in the vicinity of the Premises which could
materially restrict or change access from any such highway or road to the
Premises or any pending or threatened condemnation or eminent domain
proceedings relating to or affecting the Premises. All roads bounding the
Premises are public roads and the Deed is the only instrument necessary to
convey to Purchaser full access to and the right to use such roads freely as
well as to convey all rights appurtenant to the Premises in such roads.
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.
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6.1.15 LITIGATION. There is no action or proceeding
(zoning or otherwise) or governmental investigation pending, or, to the best
of Seller's knowledge, threatened against, or relating to, Seller (insofar as
it relates to the Premises or the Business), the Premises, the Business or the
transactions contemplated by this Agreement, nor is there any basis for any
such action, proceeding or investigation.
6.1.16 ASSESSMENTS. There are no special or other
assessments for public improvements or otherwise now affecting the Premises
nor does Seller know of (a) any pending or threatened special assessments
affecting the Premises or (b) any contemplated improvements affecting the
Premises that may result in special assessments affecting the Premises.
6.1.17 EMPLOYEE AGREEMENTS. There are no union or
employment contracts or agreements (written or oral) involving employees of
Seller or its affiliates affecting the Property or the Business which will
survive the Closing. All employees of Seller 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, or will
promptly after the closing deliver, to Purchaser true and correct copies of
(1) audited financial statements consisting of balance sheets and income
statements of Seller as of December 31, 1994 and December 31, 1995; and (2)
internal operating reports for the period commencing January 1, 1996 through
the date immediately prior to the date hereof. Each such balance sheet
presents fairly the financial condition, assets and liabilities of Seller as
of its date; each such statement of income presents fairly the results of
operations of Seller for the period indicated. The financial statements
referred to in this Section are in accordance with the books and records of
Seller. Since December 31, 1995: (a) there has at no time been a material
adverse change in the financial condition, results of operations, businesses,
properties, assets, liabilities or future prospects of Seller, the Property or
Business; (b) the Business has been conducted in all respects only in the
ordinary course; and (c) Seller has not suffered an extraordinary loss
(whether or not covered by insurance) or waived any right of substantial
value.
6.1.20 FULL DISCLOSURE. To the best knowledge of Seller,
none of the information supplied by Seller herein or in the exhibits hereto
contains any untrue statement of a material fact or omits to state a material
fact required to be stated herein or necessary in order to make the statements
herein, in light of the circumstances under which they are made, not
misleading.
6.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
hereby represents and warrants to Seller as follows:
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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
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 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Parent hereby
represents and warrants to Seller as follows:
6.3.1 ORGANIZATION; POWER AND AUTHORITY. Parent 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 the Guaranty and to
consummate the transactions contemplated hereby and thereby.
6.3.2 DUE AUTHORIZATION AND EXECUTION; EFFECT OF
AGREEMENT. The execution, delivery and performance by Parent of this Agreement
and the Guaranty and the consummation by Parent of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action required to be taken on the part of Parent. This Agreement
has been duly and validly executed and delivered by Parent and constitutes the
valid and binding obligation of Parent, enforceable in accordance with its
terms. The execution, delivery and performance by Parent of this Agreement and
the consummation by Parent 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 Parent is
subject; (b) violate any order, judgment or decree applicable to Parent; or
(c) conflict with or result in a breach of or a
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default under any term or condition of Parent's Certificate of Incorporation
or By-Laws or any agreement or other instrument to which Parent 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.
6.4 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 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 who claims to
have dealt with the indemnifying party in connection with this transaction.
9. 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 a policy of title
insurance for Purchaser, (c) a survey of the Property, (d) an environmental
survey of the Premises and (e) the assumption of the First Mortgage. Any other
similar costs not expressly provided for elsewhere in this Agreement shall be
divided and borne in accordance with the usual practices in the jurisdiction
where the Premises are located. The parties shall pay for their own attorneys,
accountants and other professionals and consultants. The provisions of this
Article shall survive the Closing.
10. INDEMNIFICATION.
10.1 Subject to the further provisions of this Article, Seller
shall protect, defend, hold harmless and indemnify Purchaser, its officers,
directors, shareholders, employees, agents and affiliates, and their
respective successors and assigns, from,
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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; (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 10.1.
10.2 Subject to the further provisions of this Article,
Purchaser and Parent shall protect, defend, hold harmless and indemnify
Seller, its partners, employees and agents, and its successors and assigns
from, against and in respect of any and all Losses that may be suffered or
incurred by any of them arising from or by reason of (i) the breach of any
representation, warranty, covenant or agreement of Purchaser or Parent
contained in this Agreement or in any document or other writing delivered
pursuant to this Agreement; and (ii) any and all actions, suits, proceedings,
claims, demands, assessments, judgments, costs and expenses (including without
limitation, interest, penalties, reasonable legal fees and accounting fees)
incident to the foregoing and the enforcement of the provisions of this
Section 10.2.
10.3 Whenever a party hereto (such party and each of its
affiliates which is entitled to indemnification pursuant to any provision of
this Agreement, an "INDEMNIFIED PARTY") shall learn after the Closing of a
claim that, if allowed (whether voluntarily or by judicial or quasi-judicial
tribunal or agency), would give rise to an obligation of another party (the
"INDEMNIFYING PARTY") to indemnify the Indemnified Party under any provision
of this Agreement, before paying the same or agreeing thereto, the Indemnified
Party shall promptly notify the Indemnifying Party in writing of all such
facts within the Indemnified Party's knowledge with respect to such claim and
the amount thereof (a "NOTICE OF CLAIM"). If, prior to the expiration of
fifteen (15) days from the mailing of a Notice of Claim, the Indemnifying
Party shall request, in writing, that such claim not be paid, the Indemnified
Party shall not pay the same, provided the Indemnifying Party proceeds
promptly, at its or their own expense (including employment of counsel
reasonably satisfactory to the Indemnified Party), to settle, compromise or
litigate, in good faith, such claim. After notice from the Indemnifying Party
requesting the Indemnified Party not to pay such claim and the Indemnifying
Party's assumption of the defense of such claim at its or their expense, the
Indemnifying Party shall not be liable to the Indemnified Party for any legal
or other expense subsequently incurred by the Indemnified Party in connection
with the defense thereof. However, the Indemnified Party shall have the right
to participate at its expense and with counsel of its choice in such
settlement, compromise or litigation. The Indemnified Party shall not be
required to
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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
10.3 shall not excuse the Indemnifying Party from its or their continuing
obligations hereunder; however, the Indemnified Party's claim shall be reduced
by any damages to the Indemnifying Party resulting from the Indemnified
Party's delay or failure to provide a Notice of Claim as provided in this
Section 10.3.
10.4 For purposes of this Article, any assertion of fact and/or
law by a third party that, if true, would constitute a breach of a
representation or warranty made by a party to this Agreement or make
operational an indemnification obligation hereunder, shall, on the date that
such assertion is made, immediately invoke the Indemnifying Party's obligation
to protect, defend, hold harmless and indemnify the Indemnified Party pursuant
to this Article.
10.5 The obligation of Seller under Section 10.1 hereof shall
be satisfied first by offset against any amounts owing under the Second
Mortgage Note and Second Mortgage and, such amounts are inadequate to provide
indemnification to Purchaser, then from Seller directly.
11. BULK SALES. The parties agree to waive the requirements, if any,
of all applicable bulk sales laws. As an inducement to Purchaser to enter into
such waiver, Seller represents and warrants that (a) it will not be rendered
insolvent by the transactions contemplated by this Agreement and (b) all
debts, obligations and liabilities relating to the Property and Business that
are not expressly assumed by Purchaser under this Agreement will be promptly
paid and discharged by Seller as and when they become due. Seller agrees to
indemnify and hold Purchaser harmless from, and reimburse Purchaser for, any
loss, cost, expense, liability or damage which Purchaser may suffer or incur
by virtue of the noncompliance by Seller or Purchaser with any laws pertaining
to fraudulent conveyance, bulk sales or any similar law which might make the
sale or transfer of any part of the Property or Business ineffective as to
creditors of, or claimants against the Seller.
12. ALLOCATION OF PURCHASE PRICE. The parties hereby agree that the
Purchase Price is and shall be allocated as follows: (a) $475,000 shall be
allocated to the Land; (b) $1,756,684 shall be allocated to the Improvements;
(c) $270,816 shall be allocated to the Personal Property; and (d) $95,000 for
termination of the existing lease. The parties agree that all tax returns and
reports filed by Seller, Purchaser and Parent with respect to the transactions
contemplated by this Agreement shall be consistent with the foregoing
allocation.
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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 Sletteland & Associates, S.C., 0000 Xxxxx
XxxxxXxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxx
Xxxxxxxxxx, 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.
14. MISCELLANEOUS.
14.1 This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns.
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
instrument
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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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
FORE SEASONS GOLF, INC.
By: ______________________
Name: Xxxxxxx Xxxxxxxxxx
Title: President
MILWAUKEE FAMILY GOLF
CENTERS, INC.
By: ______________________
Name: Xxxxxx Xxxxxx
Title: Vice President
FAMILY GOLF CENTERS, INC.
By: ______________________
Name: Xxxxxx Xxxxxx
Title: Vice President
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