PURCHASE AND SALE AGREEMENT

Transcription

1 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this Agreement ) dated the Effective Date, as hereinafter defined, is made by and between, ( Buyer ), and CONCERT INDIAN SPRING, LLC, a Delaware limited liability company ( Seller ), (Buyer and Seller are sometimes individually referred to herein as a Party and collectively as the Parties ), in light of the following Recitals which are incorporated into and made a part of this Agreement for all purposes: RECITALS: A. Seller is the owner of Indian Spring Country Club, its facilities and assets located in Boynton Beach, Florida (the Club ). B. Buyer desires to purchase the Property, as defined below, from Seller, and Seller is willing to sell the Property to Buyer, on the terms and conditions set forth in this Agreement. C. The Effective Date of this Agreement is the date that this Agreement is signed by the Escrow Agent, after it has been signed by both Buyer and Seller. NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged by the Parties, the Parties agree as follows: ARTICLE 1. SALE OF THE PROPERTY 1.1 Sale and Purchase and Property Description. Subject to the terms and conditions set forth below, Seller hereby agrees to sell to Buyer and Buyer shall purchase from Seller the following (collectively, the Property ): Real Property. The land described in Exhibit A attached hereto (the Land ) together with all buildings, structures and improvements located on the Land (the Improvements ), together with (a) all of Seller s right, title and interest, if any, in, to and under all easements, rights-of-way, development rights, entitlements, air rights and appurtenances relating or appertaining to the Land or the Improvements and (b) all of Seller s assignable right, title and interest, if any, in, to and under all water wells, streams, ponds, lakes or other bodies of water in, on or under the Land, whether such rights are riparian, appropriative, prescriptive or otherwise, and all of Seller s assignable right, title and interest, if any, in and to water rights, water supply contracts, water allocations and water stock appurtenant to or used upon the Land (the Water Rights ) (the foregoing are collectively referred to as the Real Property ). 1

2 1.1.2 Personal Property. All of Seller s assignable right, title and interest in and to all equipment, machinery, tools, appliances, furnishings, fixtures, furniture, goods held for resale (including without limitation, to the extent permitted by applicable law, the food and beverage inventory and pro shop inventory), supplies, telephone and computer equipment, and other items of tangible personal property located on the Land or in the Improvements (collectively, the Personal Property ), including, without limitation, those items of Personal Property which are listed on the attached Schedule and excluding those items, if any, listed on such schedule as excluded personal property, subject to the rights and interests of equipment lessors or secured parties under any of the Contracts, as hereinafter defined. Notwithstanding the foregoing, in no event or circumstance will Personal Property include any cash, bonds, certificates of deposit, deposits in any accounts, money market funds, treasury bills, or any other type or form of cash, money or cash equivalents Memberships and Membership Agreements. All of Seller s right, title and interest in, to and under existing Club memberships and all Club membership agreements and documents including, without limitation, those memberships listed or described on the attached Schedule (collectively, the Memberships ) Contracts. All of Seller s right, title and interest in, to and under all equipment leases, service and maintenance contracts, supply contracts, purchase orders, subscriptions and other contracts and agreements, including without limitation, relating to the operation, maintenance and management of the Property, including, but not limited to, those that are listed or described on the attached Schedule (collectively, Contracts ) Permits. All of Seller s right, title and interest in, to and under all permits, entitlements, licenses, approvals or authorizations obtained from any governmental authority and relating to the Property or the business of owning, operating, maintaining and managing the Property, to the extent any of the foregoing are transferable pursuant to applicable law (collectively, the Permits ), including, without limitation, those Permits listed on the attached Schedule Intangibles. All of Seller s right, title and interest in, to and under all intangible personal property relating solely to the Property or the business of owning, operating, maintaining and managing the Property, including without limitation (a) all warranties in favor of Seller, (b) rights to the name of the Club as more specifically provided in the Assignment and Assumption Agreement, and (c) all goodwill relating to the business of owning, operating, maintaining and managing the Property, but excluding all intellectual property and proprietary programs, materials and matters (collectively, the Intangible Property ) Books and Records. Copies of all records relating solely to the business of owning, operating, maintaining and managing the Property in Seller s possession, but excluding therefrom tax returns, tax records, and financial statements of Seller and any Affiliates of Seller, any financial forecasts, or any financial projections. The term Affiliate means, with respect to a specified person, a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the specified person. 2

3 1.1.8 Leases. All of Seller s right, title and interest in, to and under all leases, tenancies, rental agreements and licenses relating to or affecting the Property, if any, and all deposits relating thereto, as set forth on Schedule attached hereto and incorporated herein by this reference (collectively, the Leases ). ARTICLE 2. CASH PURCHASE PRICE, EARNEST MONEY DEPOSIT, CLOSING FUNDS, ALLOCATION AND NO FINANCING CONTINGENCY 2.1 Cash Purchase Price. The total cash purchase price payable by Buyer to Seller for the Property (the Cash Purchase Price ) shall be the amount of 00/100 U.S. Dollars ($.00). The Cash Purchase Price shall be paid by Buyer in cash at Closing to the Title Company by wire transfer in immediately available United States federal funds ( Immediately Available Funds ) for disbursement to Seller. 2.2 Earnest Money Deposit Wire Instructions. On the same day that Buyer delivers to Seller at the address for Seller set forth in Section 8.1 originals of this Agreement signed by Buyer to Seller, Buyer shall deposit by wire transfer to Kensington Vanguard National Land Services ( Escrow Agent and Title Company ), as earnest money, an amount equal to ten percent (10%) of the Cash Purchase Price in Immediately Available Funds (the Earnest Money Deposit ) in accordance with the wire instructions attached hereto as Schedule (the Wire Instructions ). The Earnest Money Deposit shall be held by the Escrow Agent in a non-interest bearing account. The contact person for the Escrow Agent and Title Company is: Joe Grant, EVP National Commercial Escrow Officer, Kensington Vanguard National Land Services, 5005 LBJ Freeway, Ste 200, Dallas, Texas jgrant@kvnational.com Tel. No.: Non-Refundable. The Earnest Money Deposit shall become non-refundable to Buyer (except as otherwise expressly provided in this Agreement) on the Due Diligence Termination Date (as defined below) Credit. If this transaction closes, the Earnest Money Deposit shall be for the benefit of Buyer and shall be credited toward the payment of the Cash Purchase Price payable by Buyer to Seller upon the Closing. 2.3 Closing Funds. At least seven (7) Business Days before the Closing (as defined below), Buyer shall deposit with Escrow Agent, by wire transfer to the Escrow Agent in Immediately Available Funds, the Cash Purchase Price, less the amount of the Earnest Money Deposit previously delivered by Buyer to the Escrow Agent, plus the estimated amount of Buyer s share of closing costs pursuant to Section 4.8 below, and as adjusted to reflect prorations provided by the Escrow Agent and agreed upon by Buyer and Seller pursuant to Section 4.9 below (collectively, the Closing Funds ). 3

4 2.4 Purchase Price Allocation. The Cash Purchase Price shall be allocated among the various items constituting the Property as shall be determined jointly by the accountants for Buyer and Seller. In the event that such accountants cannot jointly agree upon such allocation, each Party may make separate allocations of the Cash Purchase Price. 2.5 No Financing Contingency. Buyer expressly acknowledges that the proposed purchase and sale of the Property is not subject to any financing contingency. Buyer has provided concurrently with the provision of this Agreement fully executed by Buyer proof of sufficient cash, available lines of credit or other sources of Immediately Available Funds to enable Buyer to make full payment of the Cash Purchase Price and any other amounts to be paid by Buyer hereunder containing certifications of such Immediately Available Funds by authorized signatories for the sources of such funds (collectively the Proof of Funds.) ARTICLE 3. NO BROKERAGE FEES 3.1 No Brokerage Fees. Buyer represents and warrants to Seller, and Seller represents and warrants to Buyer, that there are no other brokerage fees, finder s fees or compensation of any kind due in connection with this transaction. Buyer and Seller shall each indemnify, defend and hold the other Party harmless from and against any and all damages, losses, costs, expenses (including but not limited to court costs and reasonable attorneys fees) and liability, arising from any claim, demand or suit by any other broker or finder, for commissions or finder s fees, or similar charge, because of any act of such indemnifying Party or its representatives. ARTICLE 4. CLOSING 4.1 Escrow Closing. The sale of the Property shall be consummated through an escrow ( Escrow ) administered by Escrow Agent in accordance with the following: 4

5 4.2 Opening and Closing Dates. The Opening of Escrow shall be the Business Day on which Escrow Agent executes this Agreement after Escrow Agent has received executed counterparts of this Agreement signed by both Seller and Buyer. Upon the Opening of Escrow, Escrow Agent shall notify the Parties in writing of such date. The consummation of the purchase and sale transaction contemplated herein for the entire Property is referred to as the Closing. The Closing shall occur no later than thirty (30) days following the date of the Opening of Escrow (the Closing Date ). 4.3 Transfer of Title to Property. At the Closing, title to the Real Property shall be transferred by Seller to Buyer by the deed in the form of Exhibit B attached hereto (the Deed ), subject only to the Permitted Exceptions (as defined below). 4.4 Closing Place. The Closing shall take place at the office of the Escrow Agent, or at such other place as Seller and Buyer hereafter agree upon in writing. 4.5 Seller s Closing Items. On or before the Closing Date, Seller shall deposit or cause to be deposited into Escrow the following documents, instruments and other items: The Deed Two (2) originals of a bill of sale, in the form of Exhibit C attached hereto (the Bill of Sale ); Two (2) originals of an Assignment and Assumption Agreement, in the form of Exhibit D attached hereto (the Assignment and Assumption Agreement ); A certificate that Seller is not a foreign person or entity under Section 1445 of the Internal Revenue Code (the Non-Foreign Certificate ); and Such additional documents, instructions or other items as may be necessary or appropriate to comply with the provisions of this Agreement and to affect the transactions contemplated hereby. All of such documents, instruments and other items shall be duly executed and, where appropriate or required, acknowledged. 4.6 Buyer s Closing Items. On or before the Closing Date or as otherwise provided in this Agreement, Buyer shall deposit into Escrow the following items, documents and funds: Closing Funds, in the form of Immediately Available Funds in accordance with the provisions of Section 2.2 of this Agreement; Two (2) originals of the Bill of Sale; Two (2) originals of the Assignment and Assumption Agreement; and 5

6 4.6.4 Such additional documents, instructions or other items as may be necessary or appropriate to comply with the provisions of this Agreement and to facilitate the transaction contemplated hereby. All of such documents, instruments and other items shall be duly executed and, where appropriate or required, acknowledged. 4.7 Recording and Delivery of Documents. At Closing, Escrow Agent shall deliver to Seller: (i) a Bill of Sale fully executed by Seller and Buyer, (ii) an Assignment and Assumption Agreement fully executed by Seller and Buyer, and (iii) all proceeds from the Closing Funds and the Earnest Money Deposit in full payment by Buyer to Seller of the Cash Purchase Price. At Closing, Escrow Agent shall deliver to Buyer (a) the Non-Foreign Certificate executed by Seller, (b) a Bill of Sale executed by Seller and Buyer and (c) an Assignment and Assumption Agreement, fully executed by Seller and Buyer. At Closing, the Escrow Agent shall record the Deed. Costs : 4.8 Closing Costs. The items listed in this Section shall be defined as the Closing Buyer shall pay (a) the cost of the Title Policy and the costs of the additional premium for an extended coverage owner s policy of title insurance and any endorsements; (b) costs of recording the Deed; (c) the costs of any survey required by Buyer; (d) all of the documentary transfer taxes, transfer fees, recording fees or other charges of any nature whatsoever for the Property; including, but not limited to, any costs and expenses for recording the Deed and (e) one-half of the fees charged by the Escrow Agent for the Escrow ( Escrow Fees ) Seller shall pay (a) the cost of removing any Unpermitted Exceptions (as defined below) from the Property title; and (b) one-half of the Escrow Fees All other costs or expenses pertaining to the Closing shall be paid by the Party to whom they are specifically allocated hereunder Buyer agrees that all Closing Costs payable by Seller shall be deducted from Seller s proceeds at the Closing. 4.9 Prorations Real Estate Taxes and Assessments. All non-delinquent real estate taxes and assessments with respect to the Property will be prorated on a calendar year basis as of the Closing Date based on the actual current tax bill. If the Closing Date takes place before the real estate taxes and assessments are fixed for the tax year in which the Closing Date occurs, the apportionment of the real estate taxes and assessments will be made on the basis of the real estate taxes and assessments for the immediately preceding tax year applied to the latest assessed valuation. All delinquent real estate taxes and assessments, if any, will be paid at the Closing Date from funds accruing to Seller. All supplemental real estate taxes and assessments billed after the Closing Date for periods prior to the Closing Date will be paid promptly by Seller. Any tax refunds 6

7 received by Buyer which are allocable to the period prior to Closing will be paid by Buyer to Seller promptly upon receipt. All special taxes or assessments assessed prior to the Closing or after Closing but relate to the period prior to Closing shall be paid by Seller and those assessed after the Closing and relate to the period after the Closing shall be paid by Buyer. All real estate taxes imposed because of a change of use of the Property after Closing shall be Buyer s responsibility and obligation, and Seller shall have no obligation or liability with respect thereto Personal Property Taxes. All personal property taxes applicable to the Personal Property shall be prorated between Seller and Buyer as of the Closing on a calendar year basis Utilities. Seller will notify all utility companies servicing the Property of the sale of the Property to Buyer and will request that such companies send Seller a final bill for the period ending on the last day before the Closing Date. Buyer will notify the utility companies that all utility bills for the period commencing on the Closing Date are to be sent to Buyer. Seller shall seek the return of any and all deposits held by utility companies and Buyer will arrange for substitute deposits with the utility companies as may be required. If following the Closing Date either Buyer or Seller receives a bill for utilities or other services provided to the Property for the period in which the Closing Date occurred, Buyer and Seller will equitably prorate the bill Event Deposits and Prepaid Expenses, Deposits, and Deferred Income. Unless otherwise expressly provided herein, all prepaid utility charges, rent, lease payments, prepaid expenses and deferred income, including, but not limited to, charges, fees, locker rentals, and all other income and expense items which arose by virtue of the operation of the Club and the Contracts shall be prorated as of Closing. One hundred percent (100%) of all deposits for tournaments, private parties, banquets or events that occur after the Closing Date shall be credited to Buyer and said contracts and agreements shall be deemed to be included in the Contracts assumed by Buyer Insurance. Insurance carried by Seller on the Property or any other Assets, shall be terminated effective as of Closing and such policies shall not be Contracts. Buyer shall be solely responsible for acquiring insurance coverage on the Assets from the time of Closing Contracts and Leases. Buyer agrees to assume all obligations of Seller under the Contracts and Leases arising on and after Closing pursuant to the Assignment and Assumption Agreement Receivables.For the purposes of this Section Qualifying Receivables shall mean (i) member and other receivables incurred in the ordinary course of business in accordance with the Seller s credit policies consistently applied, and (ii) receivables otherwise incurred in the ordinary course of business. Three (3) days prior to Closing, Seller will provide Buyer with a receivable Aging Report to identify the Qualifying Receivables. All amounts contained in the Current, 30-day, and 60-day columns will be considered a Qualifying Receivable. Seller shall receive a credit (and Buyer shall pay at Closing) for all Qualifying Receivables for all periods up to and including the day prior to the Closing Date. After Closing, 7

8 Seller shall be entitled to receive, and Buyer shall pay Seller within 10 days after receipt, any receivables collected by Buyer within one hundred twenty (120) days after the Closing ( Post Closing Collections ) which are not Qualifying Receivables. Upon request from Seller, Buyer shall provide Seller reasonable supporting documentation for Buyer s Post-Closing Collections Payables. All accounts payable incurred in the ordinary course of Seller s business as well as all other payables and liabilities of the Golf Course shall be assumed by Buyer and prorated at Closing Other Items. Cash on hand at Closing and all other funds of Seller shall remain an asset for Seller and may be removed by Seller Memberships. Buyer shall assume responsibility for the performance and observance of all of Seller s obligations under the Memberships arising on and after Closing pursuant to the Assignment and Assumption Agreement Additional Obligations. Buyer shall assume responsibility for the performance and observance of all of Seller s obligations set forth on Schedule attached hereto pursuant to the Assignment and Assumption Agreement (collectively, the Additional Obligations ) Method of Proration. All prorations will be made as of the date of the Closing Date based on a three hundred sixty five (365) day year or a thirty (30) day month, as applicable. All such prorations shall be set forth on the settlement statement to be executed by Seller and Buyer on or before the Closing Final Accounting. Seller and Buyer acknowledge and agree that on the Closing, Seller and Buyer may not have sufficient information at their disposal to conduct and complete a final proration of all items subject to proration pursuant to this Section 4.9. Accordingly, Seller and Buyer hereby agree as follows: (a) on the Closing, Seller and Buyer shall in good faith calculate the prorations contemplated herein effective as of the Closing; and (b) within sixty (60) calendar days of Closing, Seller and Buyer shall conduct a final accounting of all matters and items subject to proration pursuant to this Section (the Final Accounting ). In the event it is determined pursuant to the Final Accounting that any amounts are due and owing by Seller to Buyer, Seller shall cause such amounts to be paid to Buyer on or before thirty (30) calendar days from the date the Final Accounting is completed. In the event it is determined pursuant to the Final Accounting that any amounts are due and owing by Buyer to Seller, then Buyer shall cause such amounts to be paid to Seller on or before thirty (30) calendar days from the date the Final Accounting is completed Employees. All employees of Seller engaged in the operation of the Club shall be terminated by Seller as of the Closing, and Seller shall pay such employees all wages, salary, bonuses, accrued vacation and sick leave, and any other benefits to which such employees are entitled as of the day prior to the date of the Closing. Buyer shall hire all such employees of Seller effective as of the Closing for a probationary period which shall continue for at least ninety 8

9 (90) days after the Closing Survival. The covenants of the parties under this Section 4.9 shall survive the Closing Date. ARTICLE 5. PRE-CLOSING COVENANTS 5.1 Buyer s Right to Terminate. Until the Due Diligence Termination Date, Buyer in its sole discretion shall have the right to terminate this Agreement and Escrow by written notice to Escrow Agent and Seller. For purposes of this Agreement, the Due Diligence Termination Date shall mean the date which is fifteen (15) days following the date of the Opening of Escrow, 5:00 p.m., local time for the City and State in which the Land is located. Upon such termination, Escrow Agent shall return the Earnest Money Deposit to Buyer and Buyer shall have no further right to enforce this Agreement or purchase the Property. If Buyer does not provide a written termination notice to Escrow Agent and Seller on or before the Due Diligence Termination Date, then Buyer s Inspection (as defined below) shall be deemed unconditionally approved, this Agreement and the Escrow shall be continued and, except as otherwise expressly provided herein, the Earnest Money Deposit shall be nonrefundable to Buyer. 5.2 Buyer s Due Diligence. Within five (5) Business Days of the Opening of Escrow, Seller will deliver, or made available to Buyer, at a location determined by Seller, in Seller s discretion, all materials and documentation relating to the Property (collectively, the Disclosure Information ) which are in Seller s possession. The following is the Disclosure Information: (i) copies of the Contracts and Leases; (ii) copies of any licenses, approvals and permits relating to the Property; (iii) the most recent and historical financial statements, including balance sheets, relating to the operation of the Property; (iv) any development plans, plats, specifications, soils reports, environmental reports, engineering reports, agronomic reports, and irrigation plans and specifications and irrigation reports with respect to the Property, if any; and (v) schedule of banquet and tournament bookings, gift certificates, rain checks and all deposits for the forward-looking twelve (12) months with respect to the Property; provided, however, the Disclosure Information shall not include (i) the contents of any loan files maintained by Seller; (ii) appraisals; and (iii) information which is privileged, confidential or proprietary, including, but not limited to: internal memoranda, analyses and business plans; financial information; and correspondence and other materials to or from Seller and/or Seller s attorneys and potential third party buyers. Seller agrees to make such other information concerning the operation of the Property as Buyer may reasonably request and that Seller otherwise has in its possession or may, with reasonable effort, produce, to enable Buyer to evaluate the attractiveness of the Property and such information shall be considered part of the Disclosure Information. Except as otherwise expressly set forth in this Agreement, the Disclosure Information is provided on an AS-IS- WHERE-IS BASIS, AND BUYER EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER MAKES NO REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY OF 9

10 CONDITION, ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE AS TO THE DISCLOSURE INFORMATION. Without Seller s prior written consent, Buyer: (i) shall not divulge to any third party any of the Disclosure Information and shall not use the Disclosure Information in Buyer s business prior to the Closing, in each case except in connection with the evaluation of the acquisition of the Property; (ii) shall ensure that the Disclosure Information is disclosed only to such of Buyer s officers, directors, employees, consultants, investors and lenders, as have actual need for the information in evaluating the Property; (iii) shall act diligently to prevent any further disclosure of the information; and (iv) shall, if the Closing does not occur for any reason, promptly return to Seller (without keeping copies) all Disclosure Information. 5.3 Buyer s Inspection. Unless this Agreement is sooner terminated, Buyer and its agents shall have the right, until the Due Diligence Termination Date, upon the giving of at least forty-eight (48) hours notice to Seller, to be granted reasonable access to the Property and the books and records relating to the Club for the purpose of conducting due diligence ( Buyer s Inspection ). Such Buyer Inspection shall be performed at Buyer s sole risk and cost. Prior to entering the Property, Buyer shall deliver certificates of insurance for the policies described in Section together with evidence that such policies may only be cancelled upon thirty (30) day s prior notice to Seller. Buyer agrees not to interfere with play on the Club s golf facilities, or unreasonably interfere with the operation of the Club. No sampling, drilling, draining, etc. shall be permitted on the Real Property without Seller s prior consent, in Seller s discretion. Buyer covenants that after each such Buyer s Inspection, Buyer shall promptly restore the Property to its original condition. Buyer shall indemnify, protect, defend (with counsel reasonably satisfactory to Seller) and hold Seller and Seller s owners, employees, agents and representatives harmless for, from and against any and all defaults, liabilities, causes of action, demands, claims, damage or expenses of any kind, including reasonable attorneys fees and court costs (collectively, Claims ), arising out of or as a consequence of any Buyer s Inspection ( Inspection Indemnity ). The Inspection Indemnity shall survive the Closing or any termination or cancellation of this Agreement. If the Escrow does not close for any reason, then, within ten (10) days after the cancellation of Escrow, Buyer shall, at no cost to Seller but also without any warranty of accuracy, deliver to Seller originals or written, electronic or computer disk copies of all surveys, reports, test results and other information Buyer compiled with respect to the Property (including all documents and electronic media) (collectively, Buyer s Materials ). The foregoing obligation to deliver Buyer s Materials ( Buyer s Delivery Obligation ) shall expressly survive any termination or cancellation of this Agreement. 5.4 Title Commitment and Title Insurance. Within three (3) Business Days of the Opening of Escrow, Escrow Agent will cause to delivered to Buyer and Seller a current preliminary title report on the Real Property (the Title Report ), together with copies of all instruments of record referred to therein. Buyer shall have until the Due Diligence Termination Date to approve or disapprove of the condition of title shown in the Title Report. If Buyer disapproves the condition of title Buyer s the condition of title shown on the Title Report, Buyer s sole remedy will be the termination of this Agreement by Buyer in 10

11 accordance with the provisions of Section 5.1 of this Agreement. Seller shall not be obligated to remove or cure any matter affecting title that is disapproved by Buyer (although Seller may, without obligation to do so, attempt to remove or cure any such matter in Seller s discretion). In the event Buyer fails to terminate this Agreement prior to the end of the Due Diligence Termination Date, all matters on the Title Report that Seller or Title Company has not agreed to cure or remove in writing, and all matters which would be shown by a current accurate ALTA survey of the Real Property or other current accurate survey of the Real Property, shall constitute the permitted exceptions (the Permitted Exceptions ). At the Closing, the Escrow Agent shall be committed to issue an ALTA standard coverage owner s policy of title insurance ( Title Policy ), insuring Buyer s fee interest in the Real Property in the full amount of the Cash Purchase Price, subject only to the Permitted Exceptions. Buyer shall be responsible for payment of the premium for the Title Policy, and all additional premiums and requirements related to upgrading the title insurance policy from standard to extended coverage. Notwithstanding anything to the contrary contained herein, without the need for Buyer to expressly object to same, but subject to the terms contained in, Seller shall remove or cause to be removed as exceptions to or affecting title to the Real Property (or remedy by waiver or special curative title endorsement acceptable to Buyer) on or before Closing: (a) all consensual financing encumbrances evidenced by an agreement signed by Seller; (b) any judgment liens against Seller; and (c) any income and sales tax liens against Seller (collectively, Unpermitted Exceptions ). If Buyer has not approved the Title Report prior to the Due Diligence Termination Date, Buyer may terminate this Agreement by written notice to Seller and to Escrow Agent no later than the Due Diligence Termination Date, whereupon Escrow Agent shall return the refundable portion of the Earnest Money Deposit to Buyer and, except as otherwise expressly provided herein, neither Party shall have any further obligation or liability hereunder. 5.5 Conduct of Affairs. During the period from the Opening of Escrow through the Closing: Operations. Seller shall operate and manage the Property in accordance with its customary practices and maintain the Property in its current condition subject to normal wear and tear Insurance. Seller shall keep in effect through the Closing all casualty, liability and other policies of insurance relating to the Property or the operation, maintenance or management thereof. Buyer or Buyer s contractors that enter upon the Real Property pursuant to Section 5.2 above shall have in effect commercial general liability insurance naming Seller as additional insured, with limits of not less than $1,000,000 per occurrence for personal injury, including bodily injury and death, and property damage, and waiver of subrogation. Buyer shall deliver to Seller certificates of insurance, and if requested by Seller, copies of the policies of insurance, evidencing the foregoing required coverage prior to any entry upon the Real Property Permits. Seller shall maintain the Permits in effect. 5.6 Notice of Changes. During the period from the date of this Agreement through 11

12 the Closing, Seller shall promptly notify Buyer of the occurrence of any event or any change which causes any of the representations and warranties of Seller contained in this Agreement to become untrue, or which has a material adverse effect on the operation, maintenance, management or administration of the Property or the Membership Program. 5.7 Cooperation. The Parties shall cooperate with each other in every way and will exercise their best efforts in carrying out the transactions contemplated by this Agreement, including, but not limited to, their best efforts in obtaining all required approvals and authorizations which either Party may elect to seek and in delivering all documents, instruments or information deemed necessary or desirable by such Party. ARTICLE 6. REPRESENTATIONS AND WARRANTIES 6.1 Buyer s Representations and Warranties. Buyer represents and warrants to Seller the following as of the Closing Date: Authority. Buyer has full power and authority to enter into this Agreement and all documents executed pursuant to this Agreement, and to perform its obligations in accordance with the terms and conditions hereof and thereof No Violation. Execution of this Agreement and all documents executed pursuant to this Agreement by Buyer, and performance by Buyer of each and all of its obligations hereunder, will not breach or violate any other agreement, court order or other arrangement by which Buyer is bound Action. All necessary and appropriate action on the part of Buyer which is required for execution, delivery and performance of this Agreement has been duly and effectively taken No Reliance on Seller s Financial Analysis. Buyer acknowledges that Seller may have undertaken an independent analysis of the historical and projected financial condition and performance of the Property ( Seller s Financial Analysis ) and that Seller s Financial Analysis, if any, constitutes proprietary and confidential information of Seller. Buyer therefore acknowledges that Seller has not provided Seller s Financial Analysis, if any, to Buyer, either as part of the Disclosure Information or otherwise. Buyer represents and warrants to Seller that Buyer has conducted to its satisfaction its own independent analysis of the historical and projected financial condition and performance of the Property and, in making the determination to proceed with the transactions contemplated by this Agreement, has relied solely on the results of its own independent analysis and the representations and warranties of Seller expressly set forth in Section 6.2 of this Agreement and in the documents delivered at Closing. Buyer acknowledges and agrees that (a) neither Seller nor any other person has made any guarantee, representation or warranty, express or implied, as to the historical or projected financial condition or performance of the Property (or any part thereof) or other matters that are not included in this Agreement, 12

13 including, but not limited to, the creditworthiness or the financial condition, prospects or performance of any tenants of the Property, and (b) to the fullest extent permitted by applicable law, neither Seller nor any other person shall have any liability or responsibility whatsoever to Buyer or its members, managers, directors, officers, employees, affiliates, controlling persons, agents, advisors or representatives, or any other person, on any basis (including in contract or tort, under federal or state securities laws or otherwise) based upon any information provided or made available, or statements made, to Buyer or its directors, officers, employees, affiliates, controlling persons, advisors, agents or representatives (or any omissions therefrom), including, without limitation, any financial information contained in the Disclosure Information or otherwise made available to Buyer, and any marketing materials and offering memorandums provided by Seller s Broker. The provisions of this Section shall survive the Closing indefinitely Owner s Notice. By submission of this Agreement to Seller in accordance with the terms of the Notice of Proposed Sale provided to Buyer by Owner ( Owner s Notice ), Buyer hereby acknowledges and agrees that the Owner s Notice has been timely provided to Buyer in accordance with the requirements of the Right of First Discussion entered between Indian Spring Country Club, Inc., a Florida non-profit corporation and Seller, and Buyer for itself and on behalf of its members hereby waives any claim that Owner s Notice is either not timely given or fails to comply with any of the requirements of the Right of First Discussion Survival. The foregoing representations and warranties are made as of the Opening of Escrow and as of the Closing and shall survive the Closing. 6.2 Seller s Representations and Warranties. Seller covenants, represents and warrants to Buyer the following as of the Closing Date: Authority. Seller has full power and authority to enter into this Agreement and all documents executed pursuant to this Agreement, and to perform its obligations in accordance with the terms and conditions hereof and thereof Action. All necessary and appropriate action on the part of Seller required for the execution, delivery and performance of this Agreement has been duly and effectively taken Bankruptcy. There are no attachments, executions, assignments for the benefit of creditors, receiverships, conservatorships, or voluntary or involuntary proceedings in bankruptcy or pursuant to any other debtor relief laws which have been filed by Seller, are contemplated by Seller or, to Seller s Knowledge, are pending in current judicial or administrative proceedings against Seller or have been threatened against Seller in writing addressed to Seller OFAC. Neither Seller nor any persons or entities owning (directly or indirectly) a ten percent (10%) or greater ownership interest in Seller: (i) are now or shall become, a person or entity with whom Buyer is restricted from doing business with under regulations of the Office of Foreign Assets Control ( OFAC ) of the Department of the Treasury (including, but not limited to, those named on OFAC s Specially Designated Nationals and Blocked Persons list) or under any statute, executive order (including, but not limited to, the September 24, 2001, Executive 13

14 Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action; (ii) are now or shall become, a person or entity with whom Buyer is restricted from doing business with under the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001, or the regulations or orders thereunder; and (iii) has not knowingly engaged in, and shall not engage in, any dealings or transaction, or be otherwise associated with such persons or entities described in (i) and (ii) above. 6.3 Definition of Seller s Knowledge. When used in this Agreement, the terms Seller s Knowledge shall mean and be limited to the current actual knowledge, and not imputed, implied or constructive knowledge, of Peter J. Nanula, without any duty of investigation or inquiry, and shall not be construed, by imputation or otherwise, to refer to the knowledge of any advisor, broker or attorney to Seller or any other officer, agent, manager, representative or employee of Seller. There shall be no personal liability on the part of any individuals, including without limitation, the persons named in this Section, arising out of any of Seller s representations and warranties set forth herein. 6.4 Limitation of Representation and Warranties. The representations and warranties of Seller set forth in Section and Section above shall survive the Closing for a period of six (6) months (the Survival Period ). In no event shall Seller be liable for a breach of representation or warranty which is disclosed in the Disclosure Information or to Buyer s knowledge is known to be false or inaccurate as of the Closing Date, provided that Buyer shall still have the remedies set forth in Section 11.2 of this Agreement with respect to the same. 6.5 Purchase of Property As-Is AS-IS PURCHASE; NO SIDE AGREEMENTS OR REPRESENTATIONS; BUYER REPRESENTS, WARRANTS AND COVENANTS TO SELLER THAT BUYER IS A SOPHISTICATED PURCHASER, WHO IS FAMILIAR WITH THE PROPERTY AND ITS USE AND THAT BUYER MAY, PRIOR TO CLOSING, INDEPENDENTLY AND PERSONALLY VISUALLY INSPECT THE PROPERTY AND THAT BUYER HAS ENTERED INTO THIS AGREEMENT BASED UPON ITS RIGHTS AND INTENTIONS TO MAKE SUCH PERSONAL EXAMINATION AND INSPECTION. BUYER AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED HEREIN, BUYER WILL ACCEPT THE PROPERTY, IN ITS THEN CONDITION AS-IS AND WITH ALL FAULTS INCLUDING WITHOUT LIMITATION, ANY FAULTS AND CONDITIONS SPECIFICALLY REFERENCED IN THIS AGREEMENT. SELLER AGREES THAT BUYER IS RELYING ON THE REPRESENTATIONS AND WARRANTIES OF SELLER, AS THEY MAY BE CONDITIONED OR LIMITED, AS SET FORTH IN THIS AGREEMENT AND EACH OTHER AGREEMENT EXECUTED AND DELIVERED BY SELLER TO BUYER ON OR AFTER THE DATE OF THIS AGREEMENT AND BEFORE THE CLOSING DATE. NO PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF, BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT AND EACH OTHER AGREEMENT EXECUTED AND DELIVERED BY SELLER TO BUYER ON OR AFTER THE DATE OF THIS AGREEMENT 14

15 AND BEFORE THE CLOSING DATE, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO: (a) (b) THE VALUE OF THE PROPERTY; THE INCOME TO BE DERIVED FROM THE PROPERTY; (c) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREON, INCLUDING ANY DEVELOPMENT OF THE PROPERTY; (d) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; (e) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY; (f) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY; (g) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (h) THE MANNER, CONDITION OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY; (i) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATION, ORDERS OR REQUIREMENTS, INCLUDING, BUT NOT LIMITED TO, THE ENDANGERED SPECIES ACT, TITLE III OF THE AMERICANS WITH DISABILITIES ACT OF 1990 OR ANY OTHER LAW, RULE OR REGULATION GOVERNING ACCESS BY DISABLED PERSONS, THE FEDERAL WATER POLLUTION CONTROL ACT, THE FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT, THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, THE RESOURCES CONSERVATION AND RECOVERY ACT OF 1976, THE CLEAN WATER ACT, THE SAFE DRINKING WATER ACT, THE HAZARDOUS MATERIALS TRANSPORTATION ACT, THE TOXIC SUBSTANCE CONTROL ACT, AND REGULATIONS PROMULGATED UNDER ANY OF THE FOREGOING; 15

16 (j) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER, OR ADJACENT TO THE PROPERTY; (k) THE CONTENT, COMPLETENESS OR ACCURACY OF THE DUE DILIGENCE MATERIALS PROVIDED BY OR ON BEHALF OF SELLER, INCLUDING ANY INFORMATIONAL PACKAGE, COST TO COMPLETE ESTIMATE OR OTHER MATERIALS PREPARED BY SELLER; (l) THE CONFORMITY OF THE IMPROVEMENTS TO ANY PLANS OR SPECIFICATIONS FOR THE PROPERTY, INCLUDING ANY PLANS AND SPECIFICATIONS THAT MAY HAVE BEEN OR MAY BE PROVIDED TO BUYER; (m) THE CONFORMITY OF THE PROPERTY TO PAST, CURRENT OR FUTURE APPLICABLE ZONING, BUILDING OR ACCESSIBILITY REQUIREMENTS; (n) (o) DEFICIENCY OF ANY UNDERSHORING; DEFICIENCY OF ANY DRAINAGE; (p) THE FACT THAT ALL OR A PORTION OF THE PROPERTY MAY BE LOCATED ON OR NEAR AN EARTHQUAKE FAULT LINE; (q) THE EXISTENCE OF VESTED LAND USE, ZONING OR BUILDING ENTITLEMENTS AFFECTING THE PROPERTY; (r) WHETHER THE PROPERTY IS LOCATED PARTIALLY IN ANY FLOOD PLAIN OR FLOOD HAZARD BOUNDARY OR SIMILAR AREA; (s) ANY OTHER MATTER AFFECTING THE STABILITY OR INTEGRITY OF THE PROPERTY; (t) THE PROPERTY; THE AVAILABILITY OF PUBLIC UTILITIES AND SERVICES FOR (u) WITH RESPECT TO ANY OTHER MATTER CONCERNING THE PROPERTY EXCEPT AS MAY BE OTHERWISE EXPRESSLY STATED HEREIN, INCLUDING ANY AND ALL SUCH MATTERS REFERENCED, DISCUSSED OR DISCLOSED IN ANY DOCUMENTS DELIVERED BY SELLER TO BUYER, IN ANY PUBLIC RECORDS OF ANY GOVERNMENTAL AGENCY OR ENTITY OR UTILITY COMPANY, OR IN ANY OTHER DOCUMENTS AVAILABLE TO BUYER; (v) THE SELLER S FINANCIAL ANALYSIS. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE ASSETS AND REVIEW INFORMATION AND DOCUMENTATION AFFECTING THE ASSETS, EXCEPT AS OTHERWISE PROVIDED 16

17 HEREIN, BUYER IS RELYING SOLELY UPON ITS OWN INVESTIGATION OF THE ASSETS AND REVIEW OF SUCH INFORMATION AND DOCUMENTATION, AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION MADE AVAILABLE TO BUYER OR PROVIDED OR TO BE PROVIDED BY OR ON BEHALF OF SELLER WITH RESPECT TO THE ASSETS WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION EXCEPT AS MAY OTHERWISE BE PROVIDED HEREIN. EXCEPT AS OTHERWISE PROVIDED HEREIN, BUYER AGREES TO FULLY AND IRREVOCABLY RELEASE ALL SUCH SOURCES OF SUCH INFORMATION AND PREPARERS OF INFORMATION AND DOCUMENTATION TO THE EXTENT SUCH SOURCES OR PREPARERS ARE SELLER, OR THEIR EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, AGENTS, SERVANTS, ATTORNEYS, AFFILIATES, SUCCESSORS OR ASSIGNS FROM ANY AND ALL CLAIMS THAT THEY MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST SUCH SOURCES AND PREPARERS OF INFORMATION FOR ANY COSTS, LOSS, LIABILITY, DAMAGE, EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM SUCH INFORMATION OR DOCUMENTATION. EXCEPT AS OTHERWISE PROVIDED HEREIN, SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE ASSETS, OR THE OPERATION THEREOF, FURNISHED BY ANY OF THE FOREGOING ENTITIES AND INDIVIDUALS OR ANY OTHER INDIVIDUAL OR ENTITY. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SALE OF THE ASSETS AS PROVIDED FOR HEREIN IS MADE ON AN AS-IS CONDITION AND BASIS WITH ALL FAULTS, AND THAT SELLER HAS NO OBLIGATIONS TO MAKE REPAIRS, REPLACEMENTS OR IMPROVEMENTS EXCEPT AS MAY OTHERWISE BE EXPRESSLY STATED HEREIN NO PURCHASE PRICE ADJUSTMENTS. IT IS UNDERSTOOD AND AGREED THAT THE CASH PURCHASE PRICE HAS BEEN ESTABLISHED BY BUYER TO REFLECT THAT ALL OF THE ASSETS ARE SOLD BY SELLER AND PURCHASED BY BUYER SUBJECT TO THE FOREGOING. IT IS NOT CONTEMPLATED THAT THE CASH PURCHASE PRICE WILL BE INCREASED IF COSTS TO BUYER ASSOCIATED WITH THE PROPERTY OR ASSETS PROVE TO BE LESS THAN EXPECTED NOR WILL THE CASH PURCHASE PRICE BE REDUCED IF THE BUYER S PLAN FOR THE ASSETS LEADS TO HIGHER COST PROJECTIONS. PRIOR TO THE CLOSING DATE, THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER WILL BE TO TERMINATE THIS AGREEMENT AND RECEIVE A REFUND OF THE DEPOSIT, IN EACH CASE, AS PROVIDED HEREIN. THE RELEASES CONTAINED IN SECTION AND SECTION OF THIS AGREEMENT SHALL SURVIVE THE CLOSING OR THE EARLIER TERMINATION OF THIS AGREEMENT. 17

18 ARTICLE 7. CLOSING CONDITIONS 7.1 Conditions to Obligations of Buyer. The Closing and Buyer s obligation to purchase the Property is subject to satisfaction, prior to or at the Closing, of all of the following conditions, each of which is for the benefit of Buyer and may be waived by Buyer in its sole discretion: Representations and Warranties True. All of the representations and warranties of Seller set forth in Section 6.2 of this Agreement shall be true and correct in all material respects Performance of Obligations. Seller shall have performed all of the material obligations of Seller under this Agreement to be performed by Seller prior to or at the Closing Delivery of Items into Escrow. Seller shall have executed and delivered into Escrow all of the items referred to in Section Conditions to Obligations of Seller. The Closing and the obligation of Seller to sell, convey, assign, transfer and deliver the Property to Buyer is subject to satisfaction, prior to or at the Closing, of all of the following conditions, each of which is for the benefit of Seller and may be waived by Seller, in its sole discretion: Representations and Warranties True. All of the representations and warranties of Buyer set forth in Section 6.1 of this Agreement shall be true and correct in all material respects Performance of Obligations. Buyer shall have performed all of the obligations of Buyer under this Agreement to be performed by Buyer prior to or at the Closing Delivery of Items into Escrow. Buyer shall have executed and delivered into Escrow all of the items and the funds referred to in Section Casualty Material Loss. In the event that prior to the Closing the Property suffers a loss in excess of ONE MILLION DOLLARS ($1,000,000.00), (a Material Loss ), Seller shall immediately notify Buyer of such Material Loss and Buyer shall have the right to either terminate this Agreement and the rights and obligations of the parties under this Agreement or accept the Property in its then existing condition. If Buyer exercises its acceptance right, Buyer shall not be entitled to a credit equal to the amount of the loss but shall be entitled to any insurance proceeds or other recoveries related to the loss, and Seller shall assign the same to Buyer at the Closing and provide to Buyer a credit against the Cash Purchase Price at Closing the amount of any applicable insurance deductible. Buyer s termination right or Buyer s acceptance right shall be exercised by 18