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PURCHASE AGREEMENT 12453: LUXURY GOLF COURSE PURCHASE AGREEMENT AS PART OF A SALE LEASEBACK FINANCING $99.95 |
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Key Features
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| Purchase Agreement Type | Purchase and Sale Agreement For A Luxury Golf Course |
| Property Included | All Land And Buildings, All Permits And Licenses, And All Intangible Property Related To The Property |
| Purchaser Due Diligence | Purchaser Has Broad Rights To Examine the Property, and The Books and Records Relating to the Property Under the Agreement |
| Seller And Purchaser Representations And Warranties | The Agreement Contains An Extensive List of Reps and Warranties for the Seller And the Purchaser |
| As-Is Sale | Sale of Property As-Is, Subject To The Provisions Of The Agreement |
| Number of Single Spaced Pages | 53 |
Quick Look
This Sale, Purchase and Escrow Agreement (this "Agreement"), dated as of _______, 20__ (the "Effective Date"), is made by and among GOLF COURSE LAND HOLDINGS, a _________ corporation ("Landowner"), GOLF IMPROVEMENTS HOLDINGS, a _________ corporation ("Improvements Owner"" and collectively with Landowner, "Seller"), and GOLF COURSE INVESTMENT CORPORATION, a _________ corporation ("Purchaser"), and constitutes (i) a contract of sale and purchase between the parties and (ii) an escrow agreement among Seller, Purchaser and PRETTY GOOD COMMERCIAL TITLE, INC. ("Escrow Agent"), the consent of which appears at the end hereof.
RECITALS:
A. Landowner is the owner of the Land (as defined below) and Improvements Owner is the owner of the Improvements (as defined below).
B. Subject to the terms and conditions set forth in this Agreement, Seller desires to sell to Purchaser and Purchaser desires to purchase from Seller, the Golf Course (as defined below).
NOW, THEREFORE, in consideration of the premises and of the mutual covenants of the parties hereinafter expressed, it is hereby agreed as follows.
ARTICLE 1
PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. In consideration of the covenants herein contained, Seller hereby agrees to sell and Purchaser hereby agrees to purchase the following:
1.1.1 Those certain parcels containing approximately ________ acres of land located in the County of __________, State of _________ as more particularly described on Exhibit A attached hereto and made a part hereof ("Land") commonly referred to as the "________ Golf Course" and all improvements, structures and fixtures (collectively, the "Improvements") thereon (the Land and Improvements are collectively the "Real Property");
1.1.2 All of Seller’s right, title and interest in and to all tangible personal property upon the Land or within the Improvements, excluding the Excluded Assets (defined below) and those other items of personal property used exclusively in connection with the operation of the Land and the Improvements as set forth on Exhibit B (collectively, the "Personal Property");
1.1.3 All of Seller’s right, title and interest in and to all intangible personal property relating solely to ownership and operation of the Land and Improvements, excluding the Excluded Assets, but including approvals and permits belonging and appertaining to the Real Property, plans and specifications pertaining to the Improvements, all "__________" trademarks and any other words, names, devices, symbols, logos, slogans, designs, brands, service marks, trade names, other distinctive features, or any combination of the foregoing, whether registered or unregistered, used by Seller in connection with the ownership and operation of the Land and Improvements, including the goodwill pertaining thereto.
1.1.4 All of Seller’s right, title and interest in and to (i) all assignable equipment leases, service contracts, management agreements and other contracts and agreements listed and described on Exhibit C relating to the upkeep, repair, maintenance or operation of the Land, Improvements or Personal Property which will extend beyond the Closing Date (as defined in Section 6.1) and (ii) all assignable existing warranties and guaranties issued to Seller in connection with the Improvements or the Personal Property (collectively, the "Contracts").
1.2 Excluded Assets. The following items (collectively, the "Excluded Assets") shall not be included in the definition of "Golf Course," shall be specifically excluded from the transfer contemplated herein and shall not be conveyed to Purchaser pursuant to the terms hereof:
1.2.1 All property owned by Seller or any of its affiliates, not normally located at the Golf Course and used, but not exclusively, in connection with the operation of the Golf Course;
1.2.2 All (a) computer software and accompanying documentation (including all future upgrades, enhancements, additions, substitutions and modifications thereof), other than that which is commercially available, which are used by Seller or any affiliate thereof in connection with the property management system, the reservation system, and all future electronic systems developed by Seller or any affiliate thereof for use with respect to the Golf Course, (b) all manuals, brochures, directives, policies, programs and other information issued by Seller, or any of its affiliates, or otherwise used in the operation of the Golf Course, (c) employee records which must remain confidential either under applicable legal requirements or under reasonable corporate policies of Seller or any affiliate thereof, (d) any right, title or interest in or any goodwill associated with any name containing the name "__________" or any combination or variation thereof and any related trademarks and any other related words, names, devices, symbols, logos, slogans, designs, brands, service marks, trade names, other distinctive features, or any combination of the foregoing, whether registered or unregistered, used by Seller or any of its affiliates, (e) all trade secrets, confidential information and all other information, materials, and copyrightable or patentable subject matter developed, acquired, licensed or used by Seller or any affiliate thereof, including, without limitation, materials relating to sales and marketing programs, revenue and inventory management programs, processes or systems, brand and pricing strategies, business and technology plans, and research and development reports, and (f) any information or agreements considered confidential or proprietary in nature under an agreement between Seller or any of its affiliates and any other parties, including, but not limited to, lenders, vendors, suppliers or prior owners. The foregoing shall apply regardless of the form or medium involved ( e.g. , paper, electronic, tape, tangible or intangible);
1.2.3 All inventory for retail sale, all rental clubs, driving range balls, and any other inventory or items owned by Seller and sold from the golf pro shop located on the Land;
1.2.4 Any capital reserve, personal property reserve and/or tax and insurance escrow for the Golf Course, whether held for the benefit of the holder of a mortgage, loan, deed of trust or other security instrument with respect to the Golf Course; and
1.2.6 Working capital associated with or set aside with respect to the Golf Course.
1.3 Golf Course Defined. The property described in Section 1.1 is referred to collectively as the "Golf Course."
ARTICLE 2
PURCHASE PRICE
2.1 Price. Seller shall sell and Purchaser shall purchase the Golf Course for a total purchase price of _____________ Dollars ($_________) (the "Purchase Price "), as allocated, pursuant to the agreement of Seller and Purchaser, between real and personal property in accordance with Schedule 1 attached hereto and made a part hereof. Purchaser shall, at least two (2) business days prior to Closing (as defined below), deliver to Escrow Agent, by bank wire transfer of immediately available funds, a sum equal to the Purchase Price.
ARTICLE 3
CONDITIONS TO THE PARTIES’ OBLIGATIONS
3.1 Conditions to Purchaser’s Obligation to Purchase. Purchaser’s obligation to purchase is expressly conditioned upon the satisfaction, or waiver in writing by Purchaser, of each of the following:
3.1.1 Performance by Seller. Performance in all material respects of the obligations and covenants of, and deliveries required of, Seller hereunder.
3.1.2 Delivery of Title and Possession. Delivery at the Closing of (i) the Deed (as defined in Section 4.2.1) and other documents to be delivered by Seller pursuant to Section 4.2 below, and (ii) possession as provided in Section 15.1.
3.1.3 Title Insurance. Delivery at the Closing of the current form of American Land Title Association extended coverage owner’s policy of title insurance (the "Title Policy"), or an irrevocable commitment to issue the same issued by ________ Title Insurance Company (the "Title Company"), consistent in all material respects with a commitment for title insurance issued by Title Company, together with copies of all documents referred to as exceptions therein, containing as encumbrances only those certain encumbrances described in the Deed (as defined below) as "Permitted Encumbrances" and those certain encumbrances described in the New Easements (as defined below) (collectively, the "Title Commitment").
3.1.4 Seller’s Representations. The representations and warranties by Seller set forth in Section 11.1 being true and correct in all material respects as of the Closing.
3.1.5 Intentionally Deleted.
3.1.6 Lease Agreement. Execution and delivery by ________ of a lease agreement (the "Lease Agreement"), wherein it will lease the Golf Course after the Closing Date, substantially in the form attached hereto as Exhibit E.
3.1.7 License Agreements.
(a) Execution and delivery by Landowner of a license agreement (the "Seller’s License Agreement"), wherein certain intellectual property rights associated with the "__________" name will be licensed to Purchaser, substantially in the form attached hereto as Exhibit F.
(b) Execution and delivery by Purchaser of a license agreement (the "Purchaser’s License Agreement"), wherein certain intellectual property rights associated with the "__________" name will be licensed to Landowner (or Improvements Owner), substantially in the form of Exhibit G.
(c) The Seller’s License Agreement, and the Purchaser’s License Agreement, are hereinafter sometimes collectively called the "License Agreement."
3.1.8 Partial Assignment and Assumption of Second Amended and Restated Golf Course Use Agreement. Execution and delivery by Landowner (or an affiliate) of a Partial Assignment and Assumption of Second Amended and Restated Golf Course Use Agreement (the "Partial Assignment and Assumption of Second Amended and Restated Golf Course Use Agreement"), the terms, substantially in the form attached hereto as Exhibit H.
3.1.9 Water Delivery Agreement. Execution and delivery by Landowner of an Agreement for the Delivery of Water (________ Golf Course) (the "Water Supply Agreement ") pursuant to which water for use in the operation of the Golf Course will be provided, substantially in the form attached hereto as Exhibit I.
3.1.10 Golf Facilities Easement. Execution and delivery by Landowner of a Grant of Easement (Golf Course Facilities) regarding the use of the Maintenance Facility, Storage Facility and Dumping Ground on ______ (the "Golf Facilities Easement") in substantially the form attached hereto as Exhibit J.
3.1.11 Assignment of Easements. Execution and delivery by Landowner of an Assignment of Easements and Agreements regarding the STP easement, the golf path encroachment agreements and other easements (the "Assignment of Easements") in substantially the form attached hereto as Exhibit K.
3.1.12 CC&Rs. Execution and delivery by Landowner of covenants, conditions and restrictions regarding future utility and similar easements and restrictions on the use and development of the Golf Course (the "CC&Rs"), in substantially the form attached hereto as Exhibit L.
3.1.13 Right of First Offer. Execution and delivery by Landowner of a right of first offer agreement (the "ROFO Agreement") with respect to that certain golf course commonly referred to as "_________ Course" and all improvements, structures and fixtures thereon in substantially the form attached hereto as Exhibit M.
3.1.14 Right of First Refusal. Execution and delivery by Landowner of a right of first refusal agreement (the "ROFR Agreement") with respect to the Golf Course and all improvements, structures and fixtures thereon in substantially the form attached hereto as Exhibit N.
3.1.15 Assignment of Contracts. Execution and delivery by Landowner and Improvements Owner of an Assignment of Contracts (the "Assignment of Contracts") in substantially the form attached hereto as Exhibit O.
3.1.16 Intentionally Deleted.
3.1.17 Related Agreements. The execution and/or delivery by Seller, as applicable, of those certain agreements listed in Section 4.2 below.
3.1.18 Post-Closing Agreement. Execution and delivery by Landowner of a Post-Closing Agreement (the "Post-Closing Agreement") in substantially the form attached hereto as Exhibit Q.
3.1.19 Intentionally Deleted
3.1.20 Intentionally Deleted
3.1.21 Association Estoppel Certificates. Two (2) copies of an estoppel certificate executed by the __________ Resort Association (the "__________ Resort Association Estoppel Certificate") substantially in the form of Exhibit T-1 attached hereto and two (2) copies of an estoppel certificate executed by the __________ Estates Lot Owners’ Association (the "__________ Estoppel Certificate") substantially in the form of Exhibit T-2 attached hereto.
3.1.22 Nondisturbance Agreement. Execution and delivery of a Nondisturbance Agreement executed by Pretty Good Bank, N.A. with respect to the Water Supply Agreement and the ______ Agreement (the "Nondisturbance Agreement") in substantially the form attached hereto as Exhibit U .
3.1.23 Reliance Letter. Execution and delivery of a reliance letter executed by ____________ (the "Reliance Letter") in substantially the form attached hereto as Exhibit V.
3.1.24 Will Serve Letter. Execution and delivery of a "will serve" letter (the "Will Serve Letter") signed by __________ Water Company, Ltd. in the form of Exhibit W.
3.1.25 Agreement Regarding __________ Club. Execution and delivery by Landowner of a Golf Course Use Agreement (__________ Club) (the "Agreement Regarding __________ Club") in substantially the form attached hereto as Exhibit X.
3.1.26 Mortgage Release. Execution and delivery of a recordable partial release of that certain mortgage in favor of Pretty Good Bank, N.A. affecting the Real Property.
3.1.27 UCC-1 Termination. Execution and delivery of a UCC amendment terminating that certain Wells Fargo UCC-1 Financing Statement in favor of Pretty Good Bank, N.A. as to the Golf Course.
3.1.28 New Easements. Execution, delivery and recordation of the following new easements (collectively, the "New Easements"): (a) Grant of Underground Waterline Easement from Seller to __________ Water Company, Ltd., affecting certain existing designated waterline easements within the Land in substantially the form attached hereto as Exhibit EE-1; (b) Grant of Reservoir, Waterline and Well Development Easement from Seller to Purchaser in substantially the form attached hereto as Exhibit EE-2; (c) Grant of Underground Waterline Easement from __________ Club Associates to Purchaser in substantially the form attached hereto as Exhibit EE-3; (d) Grant of Underground Waterline Easement from ______________ to Purchaser in substantially the form attached hereto as Exhibit EE-4; (e) (Reserved); (f) Grant of Drainage Easement from Seller to Purchaser in substantially the form attached hereto as Exhibit EE-6; (g) Grant of Drainage Easement from __________ Club Associates to Purchaser in substantially the form attached hereto as Exhibit EE-7; (h) Grant of Drainage Easement from Improvements Owner to Purchaser in substantially the form attached hereto as Exhibit EE-8; (i) Grant of Drainage Easement from Purchaser to Seller in substantially the form attached hereto as Exhibit EE-9; and (j) Grant of Trail Easement from Purchaser to __________ Resort Association in substantially the form attached hereto as Exhibit EE-10.
3.1.29 Side Letter Regarding Lease. Execution and delivery by ________ Golf LLC of a side letter regarding the Lease extension (the "Lease Side Letter") in substantially the form attached hereto as Exhibit FF.
3.2 Conditions to Seller’s Obligation to Sell. Seller’s obligation to sell is expressly conditioned upon satisfaction or waiver by Seller in writing of each of the following:
3.2.1 Performance by Purchaser. Performance in all material respects of the obligations and covenants of, and deliveries required of, Purchaser hereunder.
3.2.2 Receipt of Purchase Price. Receipt of the Purchase Price and any adjustments due Seller under Article 7 at the Closing in the manner herein provided.
3.2.3 Purchaser’s Representations. The representations and warranties by Purchaser as set forth in Section 11.2 being true and correct in all material respects as of the Closing.
3.2.4 Related Agreements. The execution and/or delivery, as applicable, by Purchaser of those certain agreements listed in Section 4.1 below.
(continued)
End of Excerpt
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