HomeMy WebLinkAboutagenda report 2015 0115 rdc 06b4ITEM: 6.13.(4)
Department of
°► Community Investment
Memorandum
Monday, January 12, 2015
TO: Redevelopment C ission
FROM: Chris Fielding
SUBJECT: Blackthorn Go Course
Included in the Commission packet is an executed purchase agreement between the
Acquisitions Group LLC and the RDC. This Purchase Agreement clearly outlines the terms of
the sale that would result in the transfer of the Blackthorn Golf Course to a private entity on
or about February 6th 2015. Key terms that have been negotiated with the buyer include:
• The inclusion of a clause that would require RDC approval for the sale of the course
within the first 3 years
• The terms by which the buyer will purchase the golf carts over the next 3 years (40,000,
$55,000, $70,000)
• The purchase price of $1.655 million to be paid in full at closing minus the earnest
money held as performance guarantee
• The requirement that RDC buyout the current golf cart lease prior to closing in order to
eliminate liability for cart users
• The inclusion of the minimum maintenance standards for the course into the future
• -The return of all cash on hand, cash in accounts and any vendor deposits to the RDC
Staff is requesting the approval and execution of the enclosed Purchase Agreement. It is
anticipated that additional closing documents will be required and may require execution by
Marcia prior to closing.
227 W. JEFFERSON BLVD. SOUTH BEND, IN 46601 1 P: 574 - 235 -9371 1 FAX: 574 - 235 -9021 1 SOUTHBENDIN.GOV
ASSET PURCHASE AGREEMENT
by and between
CITY OF SOUTH BEND, INDIANA, DEPARTMENT OF REDEVELOPMENT
and
ACQUISITION GROUP, LLC
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement "), dated as of January
2015, is entered into by and between Acquisition Group, LLC, an Indiana limited
liability company ( "Buyer ") and the City of South Bend, Indiana, Department of
Redevelopment, by and through its governing body, the South Bend Redevelopment
Commission ( "Seller ").
RECITALS
A., Seller is engaged in the ownership and operation of the golf course
and clubhouse located at 6100 Nimtz Parkway, South Bend, Indiana 46628, commonly
known as Blackthorn Golf Club (the "Business "); and
B. Seller wishes to sell, transfer and assign certain of Seller's assets to
Buyer upon the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants, warranties, representations and conditions contained in this
Agreement, it is hereby agreed as follows:
SALE AND PURCHASE OF ASSETS.
1.1. Purchased Assets. On the terms and subject to the conditions
contained herein, Seller agrees to sell to Buyer, and Buyer agrees to purchase from
Seller, at the Closing and effective as of the Closing Date (as each such term is defined
in Section 4.1 of this Agreement), free and clear of all liens, claims and encumbrances,
all of Seller's right, title and interest in and to all of Seller's assets and properties used in
the Business wherever situated, except for those assets and properties specifically
excluded by Section 1.2 hereof (the "Purchased Assets "). The Purchased Assets shall
include all assets used in the Business wherever situated including, but not be limited to,
the following:
1.1.1. Real Property and Improvements. The real property
commonly identified as Blackthorn Golf Club, 6100 Nimtz Parkway, South Bend,
Indiana 46628, as more particularly described in Exhibit A hereto, and any and all
improvements thereon (the "Property ").
1.1.2. Equipment. All equipment, machinery, tools, appliances,
furnishings, furniture, fixtures, trade fixtures, fertilizer and pesticide inventory,
supplies, telephone and computer equipment and other items of tangible personal
property, including seventy -five (75) E -Z -Go TXT electric golf carts with related
equipment (the "Golf Carts ") located on the Property (collectively, the
"Equipment ").
1.1.3. Accounts Receivable. Seller's accounts receivable in
connection with the Business as reflected in Seller's books and records identified
in Section 1.1.8 below.
1.1.4. Contracts and Certain Other Rights of Seller. All rights and
interests of Seller in, to and under any and all contracts assigned to Buyer to the
extent permitted by law (the "Assigned Contracts "), and all other claims, rights and
causes of action of Seller against third parties under such Assigned Contracts
which relate to the Business.
1.1.5. Proprietary Rights. All trade names, logos, trademarks
(including registrations and applications therefor), copyrights, data processing
software, licenses, technology, trade secrets, know -how, customer and prospect
lists, inventions, patents, patent applications, telephone numbers, domain names
and websites owned or used by Seller specifically relating to the Business, and the
goodwill associated therewith, and other proprietary information and rights
employed or utilized in the conduct of the Business including, without limitation,
the exclusive rights to the corporate and trade names "Blackthorn Golf;
"Blackthorn Golf Club ", "Blarney Hole "; and all derivations thereof, any and all
golfing leprechaun logos, and the URL "www.blackthorngolf.com ".
1.1.6. Permits. All of Seller's right, title and interest in and to all
permits, licenses, certificates of occupancy, approvals, authorizations and orders
obtained from any governmental authority and relating to the Property and the
Business, but only to the extent such permits may be transferred under applicable
law.
1.1.7. Entitlements. All of Seller's right, title and interest in and to
all land use entitlements, rights or approvals relating to or authorizing the
ownership, development and /or operation of the Property; all plans and
specifications, all contract rights (including any and all guarantees and warranties
relating to the construction of any improvements); all architectural and engineering
plans and reports, specifications and drawings, as -built drawings, maps; and any
documents of the same or similar nature pertaining to the Property.
1.1.8. Books and Records. Copies of all books and records
relating to the business of owning, operating, maintaining and /or managing the
Property and Business, including without limitation all accounting, financial, tax,
employment, sales and other records, but only to the extent permitted under
applicable law and subject to Section 1.2.3 below.
1.1.9. Proceeds of Black Card Sales. All funds paid to Seller for
the purchase of Black Card discount/membership cards (the "Black Cards ") on or
after January 1, 2015, less the amount expended by Seller to advertise, market,
and promote sales of Black Cards on or after January 1, 2015, which shall be
separately accounted for by Seller.
1.2. Excluded Assets. Notwithstanding anything to the contrary
contained herein, the following assets (the "Excluded Assets ") are excluded from the
Purchased Assets and shall not be sold to Buyer upon Closing, and all of such Excluded
Assets shall be retained by Seller as of the Closing Date:
1.2.1. Cash and Cash Equivalents. All of the cash on hand, petty
cash, cash on deposit in banks or other financial institutions, prepaid accounts,
prepaid expenses, deposits, claims for refunds, and security deposits of Seller and
other cash equivalents, and funds in payroll accounts of Seller related to the
Business.
1.2.2. Inventory. All current pro shop inventory of Seller in
connection with the Business, that is held for resale and which has not been sold
by the Closing Date.
1.2.3. Records. All personnel files and records and other records
that Seller is required by law to retain in its possession.
1.2.4. Liquor License. The liquor license held by Seller in
connection with the Business, which is not transferrable to Buyer under applicable
law.
1.3. Name Following the Closing. Immediately following the Closing,
Seller and /or any of its respective Affiliates, successors or assigns shall not thereafter
use names which are, in the judgment of Buyer acting reasonably, confusingly similar to
the names "Blackthorn Golf," "Blackthorn Golf Club ", or "Blarney Hole."
1.4. Documentation. In order to effectuate the sale, assignment and
transfer contemplated by Section 1.1 hereof, Seller shall execute and deliver on the
Closing Date the Bill of Sale in the form attached hereto as Exhibit B (the "Bill of Sale "),
the General Assignment in the form attached hereto as Exhibit C (the "General
Assignment "), the Limited Warranty Deed in the form attached hereto as Exhibit D (the
"Limited Warranty Deed "), and such other closing documents as shall be necessary or
appropriate to vest or confirm in Buyer all right, title and interest of Seller in and to all of
the Purchased Assets, all of which documents shall be in form and substance reasonably
acceptable to Buyer.
1.5. Certain Consents to Assignment. To the extent that the assignment
of any right or agreement the benefit of which is to be acquired by Buyer pursuant to this
Agreement shall require the consent, approval, authorization, or waiver of any other party
or governmental authority, and Buyer shall have waived the obtaining of such consent
prior to the Closing Date, this Agreement shall not constitute a contract to assign or
assume the same until such consent is obtained. If any such consent is not obtained, (a)
this Agreement shall not constitute a sale, transfer, or assignment or an attempted sale,
transfer, or assignment of the same if a sale, transfer, or assignment or an attempted,
sale, transfer, or assignment without such consent, approval, authorization, or waiver
would constitute a breach of such right or agreement or create in any party thereto the
right or power to cancel or terminate such right or agreement, and (b) Buyer shall use
commercially reasonable efforts, and Seller will cooperate with Buyer, to obtain any such
required consent, authorization, approval, or waiver or to obtain in writing the release of
all parties to such an agreement or a novation of all liabilities and obligations under such
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an agreement, provided, however, that, in any event, Buyer will be solely responsible for
all such liabilities and obligations from and after the Closing Date.
2. PURCHASE PRICE; ALLOCATION.
2.1. Purchase Price and Post - Closing Payments.
2.1.1. Purchase Price. Subject to the terms and conditions
contained herein, Buyer agrees to pay, and Seller agrees to accept, as the
"Purchase Price" for the Purchased Assets and for the covenants described in
Section 9.1 hereof, an aggregate amount equal to One Million Six Hundred Fifty
Five Thousand and No /100 Dollars ($1,655,000.00). Buyer will deliver the
Purchase Price in full in cash at Closing.
2.1.2. Post - Closinq Payments. After the Closing, Buyer shall
make the following payments to Seller (the "Post- Closing Payments "): Forty
Thousand Dollars ($40,000.00) due and payable on September 30, 2015; Fifty -
five Thousand Dollars ($55,000.00) due and payable on September 30, 2016; and
Seventy Thousand Dollars ($70,000.00) due and payable on September 30, 2017.
The Post - Closing Payments shall not be deemed credits against the Purchase
Price stated in Section 2.1.1 and shall have no effect on the Purchase Price stated
in Section 2.1.1.
2.1.3. Post - Closinq Reimbursement for Redeemed Gift
Certificates. Seller has issued certain gift certificates or cards (collectively, the
"Gift Certificates ") related to the Business to customers which have not yet been
redeemed. Notwithstanding any other provision of this Agreement to the contrary,
Buyer expressly assumes liability for any valid Gift Certificate presented for
redemption on or after the Closing Date. Buyer shall retain each Gift Certificate
presented by a customer upon redeeming its full value. Buyer shall maintain a
complete and accurate record of the Gift Certificates presented and /or redeemed
on or after the Closing Date, including the date of presentation, the amount
redeemed, the goods or services provided in exchange for the redemption, and a
unique number or other identification of each Gift Certificate presented. On an
annual basis beginning on September 1, 2015, Buyer will submit a verified report
of the foregoing information to Seller. Upon Seller's satisfaction with the contents
of Buyer's annual report and Seller's determination that all amounts stated therein
were properly redeemed by Buyer, Seller will reimburse Buyer for the amount of
Gift Certificates redeemed by Buyer during the reporting period. The amount of
such reimbursement from Seller to Buyer may be deducted from the amount of the
contemporaneous Post - Closing Payment due from Buyer to Seller in accordance
with Section 2.1.2 of this Agreement. Seller's obligation to reimburse Buyer for the
amount of Gift Certificates redeemed by Buyer shall not exceed a total of
$65,000.00 in the aggregate, and Seller shall not reimburse Buyer for the amount
of any Gift Certificates redeemed by Buyer after September 30, 2017, regardless
of the aggregate amount redeemed by Buyer on or before that date. The
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reimbursement(s) contemplated in this Section 2.1.3 shall have no effect on the
Purchase Price stated in Section 2.1.1.
2.2. Prorations and Other Payment Obligations.
2.2.1. Utilities. All utilities relating to the Purchased Assets,
including without limitation electric, telephone, gas, cable, water, sewage, internet,
wireless charges, shall be prorated as of the Closing Date, such that Buyer
expressly agrees that it will be liable for all such utilities from and after the Closing
Date.
2.2.2. Transfer Taxes. Buyer and Seller shall share equally in
paying any state or local transfer taxes arising from the transactions contemplated
by this Agreement.
3, ASSUMPTION OF LIABILITIES.
3.1. Liabilities of Seller Not Assumed. Except as specifically provided in
this Agreement, and subject to the terms of Section 1.5 above, Buyer shall not assume,
or in any way become liable for, any liabilities or obligations of Seller or the Business of
any kind or nature, whether accrued, absolute, contingent or otherwise, or whether due
or to become due, or otherwise, whether known or unknown, arising out of events,
transactions or facts which shall have occurred, arisen or existed on or prior to the Closing
Date, which liabilities and obligations, if ever in existence, shall continue to be liabilities
and obligations of Seller (collectively, the "Excluded Liabilities "). Notwithstanding the
foregoing sentence, in addition to those liabilities expressly assumed by Buyer by
operation of any other provision in this Agreement, Buyer expressly assumes the
following:
3.1.1. Trade Accounts. All trade accounts payable by Seller to
third parties in connection with the Business that remain unpaid as of the Closing
Date, except for any amounts stated in any invoice(s) presented to the Seller that
the Seller agrees in advance of the Closing Date to pay.
3.1.2. Assigned Contracts. All liabilities and obligations arising
under or relating to the Assigned Contracts.
3.1.3. Employees. All liabilities and obligations of Buyer relating to
employee benefits, compensation, or other arrangements with respect to any
employee arising on or after the Closing Date.
3.1.4. Taxes. All liabilities and obligations for taxes relating to the
Business, the Purchased Assets or the assumed liabilities for any taxable period
ending after the Closing Date, and Buyer's share of transfer taxes pursuant to
Section 2.2.2 above.
3.1.5. Post - Closinq Liabilities. All other liabilities and obligations
arising out of or relating to Buyer's ownership or operation of the Business and the
Purchased Assets on or after the Closing Date, as specified in Section 4.1 below.
4. CLOSING.
4.1. Time; Place. The consummation of the transactions contemplated
by this Agreement (the "Closing") shall take place on February 6, 2015, or an earlier or
later date mutually agreed by the parties (the "Closing Date ") at a mutually agreeable
place. At the Closing, Seller shall sell, transfer, assign, convey and deliver to Buyer the
Purchased Assets, and the parties shall execute and deliver the agreements, certificates,
opinions and other documents required to be delivered pursuant to Section 1.4 and
elsewhere in this Agreement.
4.2. Effective Time. Title to the Purchased Assets shall be deemed to
have been transferred to Buyer effective as of the Closing Date.
4.3. Further Assurances. If at any time after the Closing Date Buyer shall
consider or be advised that any further deeds, assignments or assurances in law or any
other acts are necessary, desirable or proper to (a) vest, perfect or confirm, of record or
otherwise, in Buyer, the title to the Purchased Assets, or (b) otherwise carry out the
purposes of this Agreement, Seller agrees that it shall execute and deliver all such deeds,
assignments and assurances in law and do all acts reasonably necessary, desirable or
proper to vest, perfect and confirm title to such Purchased Assets in Buyer, and otherwise
to carry out the purposes of this Agreement and the transactions contemplated by this
Agreement and the expense of the foregoing shall be borne as provided in Section 12.3
hereof.
4.4. Closing Costs. Seller agrees to pay for closing costs up to, but not
more than, the sum of (a) $375.00, plus (b) half the total cost of recording fees. Buyer
agrees to pay all closing costs not paid by Seller.
5. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants to Buyer as follows:
5.1. Organization and Power. Seller has full power to execute and deliver
this Agreement and to consummate each and all of the transactions contemplated hereby.
5.2. Authority. Seller has all necessary power and authority to make,
execute and deliver this Agreement and all other agreements and documents to be
executed and delivered pursuant hereto, and Seller has taken all necessary actions
required to be taken to execute and deliver this Agreement and such other agreements,
and to perform all of the obligations, undertakings and agreements to be observed and
performed by each of them hereunder and thereunder, respectively. This Agreement has
been duly executed and delivered by Seller, and constitutes the valid and binding
agreement of Seller enforceable in accordance with its terms.
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5.3. No Violation. Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby (a) will constitute a
violation of, or be in conflict with, or result in a cancellation of, or constitute a default under,
or create (or cause the acceleration of the maturity of) any debt, obligation or liability
affecting, or result in the creation or imposition of any security interest, lien, or other
encumbrance upon, any of the assets owned or used by Seller under: (i) any judgment,
decree, order, regulation or rule of any court or governmental authority applicable to Seller
or the Business; (ii) any statute or law applicable to Seller or the Business; or (iii) any
contract, agreement, indenture, lease or other commitment to which Seller is a party or
by which Seller is bound; or (b) will cause any material change in the rights or obligations
of any party under any such contract, agreement, indenture, lease or commitment. To
the knowledge of Seller, no consent of, or notice to, any federal, state or local authority,
or any private Person, is required to be obtained or given by Seller in connection with the
execution, delivery or performance of this Agreement or any other agreement or
document to be executed, delivered or performed hereunder by Seller, or to enable Buyer
to continue to conduct the Business after the Closing Date in the manner in which it is
currently conducted, except the following:
5.3.1. Joint Committee Approval. The Joint Committee ( "Joint
Committee ") was established and operates pursuant to that certain Agreement
Among The South Bend Redevelopment Authority, The South Bend
Redevelopment Commission And The St. Joseph County Airport Authority For The
Operation And Management Of Blackthorn Golf Course, dated October 8, 1992
(the "Management Agreement "). In accordance with the Management Agreement,
the Joint Committee must approve the sale of the Property as contemplated in this
Agreement. The Joint Committee's approval of the sale is a condition precedent
to the Closing.
5.3.2. Redevelopment Authority Approval. In accordance with the
Management Agreement, the South Bend Redevelopment Authority approved the
sale of the Property as contemplated in this Agreement on December 17, 2014, by
its Resolution No. 189.
5.3.3. Airport Authority Approval. In accordance with the
Management Agreement, the St. Joseph County Airport Authority (the "Airport
Authority ") must approve the sale of the Property as contemplated in this
Agreement. The Airport Authority's approval of the sale is a condition precedent
to the Closing.
5.4. Ownership of Assets and Related Matters.
5.4.1. Ownership; Sufficiency of Assets. Seller warrants title to the
Property only to the extent stated in the Limited Warranty Deed. Seller warrants
that it has good and marketable title to all other Purchased Assets, free and clear
from all liens, security interests, and other encumbrances, except as otherwise
provided herein. The Purchased Assets constitute all the assets and properties
necessary to conduct the Business as currently conducted, and Buyer agrees to
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accept each Purchased Asset as -is, where -is, without any warranty as to its
condition or suitability for use.
5.4.1.1 Golf Carts. Seller holds the Golf Carts under the
terms of a lease. Seller's obtaining good and marketable title to the
Golf Carts is a condition precedent to Closing.
5.4.2. Condition of Certain Assets. The equipment and other
tangible property included in the Purchased Assets are in good operating condition
and good state of repair, ordinary wear and tear excepted.
5.4.3. Environmental. Seller has no knowledge of any disposal of
any substance deemed hazardous by applicable Environmental Laws on the
Property during Seller's ownership of the Property. Seller has no knowledge of
any leaks of petroleum products or hazardous materials from any storage facilities
onto the Property or of any contaminated soil on the Property which violates
applicable Environmental Laws pertaining to health or the environment or which
requires remediation under applicable Environmental Laws. Seller also has no
knowledge of the presence on the Property of friable asbestos or asbestos
containing material deemed hazardous by applicable Environmental Laws.
Further, Seller is aware that Buyer commissioned the preparation of a Phase I
Environmental Assessment report in connection with the Property on or around
September 25, 2014, but Buyer has not disclosed said report to Seller.
For purposes of this subparagraph 5.4.3, "Environmental Laws"
means all present federal, state or local laws, ordinances, codes, statutes,
regulations, administrative rules, policies and orders, and other authorities, which
relate to the environment and /or which classify, regulate, impose liability,
obligations, restrictions on ownership, occupancy, transferability or use of the
Property, and /or list or define hazardous substances, materials, wastes,
contaminants, and /or pollutants and any similar federal, state or local laws and
ordinances and the regulations now or hereafter adopted, published and /or
promulgated pursuant thereto and other state and federal laws relating to industrial
hygiene, environmental protection or the use, analysis, generation, manufacture,
storage, disposal or transportation of any hazardous substances, materials,
wastes, contaminants, and /or pollutants.
5.5. No Default, Violation or Litigation. Seller represents and warrants
that it is not in violation in any material respect of any law, regulation, judgment or order
of any court or federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality applicable to the Business, and Seller has not
received any notice of claimed noncompliance. Seller further represents and warrants
that, (a) there are no lawsuits, proceedings, claims or governmental investigations
pending or, to the knowledge of Seller, threatened against or involving Seller or against
or involving any of its properties or business, which could materially affect the Business
or the Purchased Assets; and (b) there are no judgments, consents, decrees, injunctions,
E:?
or any other judicial or administrative mandates outstanding against Seller , which could
materially affect the Business or the Purchased Assets.
5.6. Trademarks and Licenses. Seller owns, possesses or has certain
licenses or similar rights to utilize all trademarks, trade names, service marks, franchises,
and technology (including computer software) necessary for the conduct of the Business
as presently conducted without, to the knowledge of Seller, any infringement of or conflict
with the rights of others. The consummation of the transactions contemplated by this
Agreement will neither terminate nor alter Buyer's ability to utilize the above described
rights or the terms of such use.
5.7. Disclosure. To Seller's knowledge, no representation or warranty of
Seller made hereunder or in the Schedules or in any certificate, statement or other
document delivered by or on behalf of Seller hereunder contains any untrue statement of
a material fact.
5.8. Fee Title. Seller holds fee simple title to the Property.
5.9 Use of Property. There exists no contract or enforceable promise
between Seller and any owner of property in the Blackthorn Corporate Office Park
restricting or limiting the uses or purposes of the Property.
6. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to Seller as follows:
6.1. Organization, Power and Good Standing. Buyer is a limited liability
company duly organized, validly existing and in good standing under the laws of the State
of Indiana, and has all requisite power and authority to own or hold under lease its
properties and assets and to carry on the Business.Authority. Buyer has all necessary
power and authority to make, execute and deliver this Agreement and all other
agreements and documents to be executed and delivered pursuant hereto, and Buyer
has taken all necessary actions required to be taken to authorize it to execute and deliver
this Agreement and such other agreements, and to perform all of its obligations,
undertakings and agreements to be observed and performed by it hereunder and
thereunder, respectively. This Agreement has been duly executed and delivered by
Buyer, and constitutes the valid and binding agreement of Buyer enforceable in
accordance with its terms.
6.2 No Violation. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby (a) will constitute a
violation of, or be in conflict with, or result in a cancellation of, or constitute a default under,
or create (or cause the acceleration of the maturity of) any debt, obligation or liability
affecting, or result in the creation or imposition of any security interest, lien, or other
encumbrance upon, any of the assets owned or used by Buyer under: (i) any term or
provision of the articles of organization or bylaws (or other organic document) of Buyer;
(ii) any judgment, decree, order, regulation or rule of any court or governmental authority
applicable to Buyer; (iii) any statute or. law applicable to Buyer; or (iv) any contract,
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agreement, indenture, lease or other commitment to which Buyer is a party or by which
Buyer is bound; or (b) will cause any material change in the rights or obligations of any
party under any such contract, agreement, indenture, lease or commitment. To the
knowledge of Buyer, no consent of, or notice to, any federal, state or local authority, or
any private Person, is required to be obtained or given by Buyer in connection with the
execution, delivery or performance of this Agreement or any other agreement or
document to be executed, delivered or performed hereunder by Buyer, or to enable Buyer
to continue to conduct the Business after the Closing Date in the manner in which it is
currently conducted.
6.3 Litigation. There are no lawsuits, proceedings, claims or
governmental investigations pending or, to the knowledge of Buyer, threatened against
or involving, Buyer or against or involving any of its properties or business, or against or
involving any officers or directors of Buyer and which could have a material adverse effect
on the performance of Buyer's obligations hereunder.
6.4 Disclosure. No representation or warranty of Buyer made hereunder
or in any certificate, statement or other document delivered by or on behalf of Buyer
hereunder contains any untrue statement of material fact or omits to state a material fact
necessary in order to make the statements contained herein or therein not misleading.
7. CONDITIONS AND DELIVERIES AT CLOSING.
7.1. Mutual Conditions. The respective obligations of _each party to
consummate the transactions contemplated by this Agreement shall be subject to the
fulfillment at or prior to the Closing Date of each of the following conditions, unless waived
by such party at or prior to the Closing Date:
7.1.1. No Suit. No suit, action or other proceeding or investigation
shall to the knowledge of any party hereto be threatened or pending before or by
any governmental agency or by any third party questioning the legality of this
Agreement or the consummation of the transactions contemplated hereby in whole
or in part.
7.2. Conditions to Buyer's Obligations. The obligation of Buyer to
consummate the transactions contemplated by this Agreement shall be subject to the
fulfillment at or prior to the Closing Date of each of the following conditions, unless waived
by such party at or prior to the Closing Date:
7.2.1. Consents and Approvals. All material authorizations,
consents, waivers, approvals or other action required in connection with the
execution, delivery and performance of this Agreement by Buyer and Seller, and
the consummation by such parties of the transactions contemplated by this
Agreement, shall have been obtained, and Seller shall have obtained any
authorizations, consents, waivers, approvals or other action required in connection
with the execution, delivery and performance of this Agreement to prevent a
material breach or default by Seller under any contract to which Seller is a party
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and for the continuation of any agreement to which Seller is a party and which
relates and is material to the Business or to the Purchased Assets.
7.2.2. Instruments of Transfer and Conveyance. Seller shall have
delivered to Buyer the Bill of Sale, the General Assignment, the Limited Warranty
Deed and such other closing documents as shall have been reasonably requested
by Buyer, in form and substance reasonably acceptable to Buyer's counsel.
7.2.3. Current Coverage. Seller shall deliver to Buyer a certificate
of insurance evidencing that commercial general liability insurance has been
obtained (and is fully paid for) covering the Business through the Closing Date (the
"Current Coverage').
7.3. Conditions to Seller's Obligations. The obligation of Seller to
consummate the transactions contemplated by this Agreement shall be subject to the
fulfillment at or prior to the Closing Date of the following conditions unless waived by such
party at or prior to the Closing Date:
7.3.1. Good Standing. Buyer shall have delivered to Seller a
certificate from the State of Indiana stating that Buyer is duly organized and is in
good standing under the laws of the State of Indiana, which certificate shall be
dated not more than thirty (30) days prior to the Closing Date.
7.3.2. Resolutions. Buyer shall have delivered to Seller such duly
adopted resolutions of the governing body or individual(s), as the case may be, of
Buyer consenting to and authorizing the purchase of the Business by Buyer, in
form and substance reasonably acceptable to Seller's counsel.
7.3.3. Approvals. All material authorizations or approvals or other
actions required in connection with the execution, delivery and performance of this
Agreement by Buyer, and the consummation by Buyer of the transactions
contemplated by this Agreement shall have been obtained, including, without
limitation, the approvals identified in Sections 5.3.1 and 5.3.3 of this Agreement.
7.3.4. Instruments of Transfer and Conveyance. Buyer shall have
delivered to Seller such closing documents as shall have been reasonably
requested by Seller, in form and substance reasonably acceptable to Seller's
counsel.
7.3.5. Purchase Price. The Purchase Price described in Section
2.1.1 shall have been paid by Buyer to Seller.
8. INDEMNIFICATION.
8.1. Indemnification of Buyer. Seller covenants and agrees with Buyer
that it shall indemnify and hold harmless Buyer from and against any liability, loss, or
damage, whether or not resulting from third party claims, suffered by Buyer (collectively
"Buyer's Damages "), which arises out of or results from:
11
(a) any untruth, inaccuracy or breach of or in the representations
and warranties of Seller under this Agreement;
(b) any Excluded Liabilities; or
(c) any failure of Seller to perform or observe any term of or
covenant in this Agreement.
The parties agree that Buyer's Damages will not include Buyer's attorneys' fees or
litigation costs of any kind incurred in connection with any legal proceeding giving rise to
Seller's obligation to indemnify Buyer, and Seller will not defend or reimburse such fees
or costs the defense costs of Buyer in any such legal proceeding.
8.2. Indemnification of Seller. Buyer covenants and agrees with the
Seller that Buyer shall reimburse, defend, indemnify and hold harmless Seller from and
against any liability, loss, damage or expense (including, but not limited to, reasonable
attorneys' and accountants' fees and expenses), whether or not resulting from third party
claims, suffered by Seller (collectively "Seller's Damages "), which arises out of or results
from:
(a) any breach of the representations and warranties of Buyer
contained in this Agreement;
(b) all claims or demands made against Seller by any third parties
to the extent arising as a result of Buyer's ownership, management, or conduct of
the Business or the Purchased Assets after the Closing Date;
(c) any failure of Buyer to perform or observe any term of or
covenant in this Agreement;
(d) any environmental condition existing on the Property on or
after the Closing Date; or
(e) any and all actions, suits, claims, proceedings, investigations,
audits, demand, assessments, fines, judgments, costs and other expenses
(including, without limitation, reasonable audit and legal fees and collection
expenses) incurred by Seller resulting from the circumstances described in
Sections 8.2(a) through (d) above.
8.3. Method of Asserting Claims. Subject to the time periods set forth in
Section 8.4 hereof, the party seeking indemnity ( "Indemnitee ") will give prompt written
notice to the party or parties providing indemnity ( "Indemnitor') of any Claim (as defined
below) which it discovers or of which it receives notice after the Closing Date and which
might give rise to a Claim by it against Indemnitor under Section 8 hereof, stating the
nature, basis and (to the extent known) amount thereof. Copies of any papers received
in connection with a Claim shall be forwarded to Indemnitor together with the notice of the
Claim. In case of any Claim or suit by a third party or by any governmental body, or any
legal administrative or arbitration proceeding with respect to which Indemnitor may have
12
liability under the indemnity agreement contained in this Section 8, Indemnitor shall be
entitled to participate therein, and, to the extent desired by Indemnitor, to assume the
defense thereof, and after notice from Indemnitor to Indemnitee of the election to so
assume the defense thereof, Indemnitor will not be liable to Indemnitee for any legal or
other expenses subsequently incurred by Indemnitee in connection with the defense
thereof, other than reasonable costs of investigation, unless Indemnitor does not actually
assume the defense thereof following notice of such election. Indemnitee and Indemnitor
will render to each other such assistance as may reasonably be required of each other in
order to ensure proper and adequate defense of any such suit, claim or proceeding.
Indemnitee will not make any settlement of any Claim which might give rise to liability of
an Indemnitor under the indemnity agreement contained in this Section 8 without the prior
written consent of Indemnitor, which consent shall not be unreasonably withheld. If
Indemnitor shall desire and be able to effect a bona fide compromise or settlement of any
such suit, claim or proceeding at its expense and such settlement includes as an
unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of
a release from all liability in respect of such suit, claim or proceeding and does not provide
any form of relief from the Indemnitee other than the payment of money damages or other
money payment, and Indemnitee shall unreasonably refuse to consent to such
compromise or settlement, then the Indemnitor's liability under this Section 8 with respect
to such suit, claim or proceeding shall be limited to the amount so offered in compromise
or settlement together with all legal and other expenses which may have been incurred
prior to the date on which Indemnitee has refused to consent to such compromise or
settlement. For purposes hereof, the term "Claim" shall mean any claim for which any of
the Buyer Indemnified Parties or the Seller Indemnified Parties may be entitled to
indemnification pursuant to Sections 8.1 or 8.2 above.
8.4. Nature and Survival of Representations. The representations and
warranties made by the parties pursuant to Sections 5 and 6 of this Agreement shall
survive the Closing for a period of 18 months following the Closing Date, and no
Indemnitor shall be required to pay any Buyer's Damages or Seller's Damages, as the
case may be, unless a notice of a claim therefor is received by such Indemnitor prior to
such date.
8.5. Insured Losses. Notwithstanding any other term or provision of this
Section 8, neither party shall be required to indemnify the other party for Seller's Damages
or Buyer's Damages, as applicable, to the extent that such damages have been
reimbursed by the indemnified party's receipt of insurance proceeds. In the event that
insurance does not cover the full amount of the Seller's Damages or Buyer's Damages,
as applicable, the indemnifying party shall remain liable for the difference between the
insurance payment as described above and the amount of the Seller's Damages or
Buyer's Damages, as applicable. Notwithstanding anything else herein to the contrary,
in the event that the amount of indemnification to which an Indemnitee is entitled is
reduced by any reason of such insurance payment, the Indemnitee shall be responsible
for any increased premium(s) arising from such claim for insurance payment.
8.6. Iniunctive and Other Relief. Notwithstanding any other provision
contained in this Section 8, the parties specifically acknowledge that any breach by Seller
13
of Section 9.1 of this Agreement would result in irreparable injury to Buyer for which there
is no adequate remedy at law. In the event of a breach of any of the terms and provisions
of Section 9.1, Buyer shall be entitled to an order in any suit brought for that purpose to
enjoin such other party from violating any of the terms and provisions of such Section.
The remedies provided under this Section 8.6 shall be without prejudice to any other
remedy or remedies available to the injured party under this Agreement or otherwise.
9. OTHER AGREEMENTS.
9.1. Covenants.
9.1.1. Non - Competition. Seller has transferred all of its rights to
the Purchased Assets and the Business (including, without limitation, the
Accounts) to Buyer hereunder and, in connection therewith, covenants and agrees
that, until the fifth anniversary of the Closing Date, none of the Seller, its
successors or assigns will, without the prior written consent of Buyer, operate a
golf course, whether as an owner, consultant, manager, partner, independent
contractor, agent or otherwise or by means of any corporate or other device,
except for the operation of any golf courses owned and /or operated by the City of
South Bend, by and through any of its departments or agencies, during the six (6)
months immediately preceding the Closing Date (the "Existing Golf Courses "). The
foregoing sentence shall not be deemed to prohibit, restrict, or otherwise limit the
maintenance, expansion, or other functioning or the disposition of the Existing Golf
Courses in any manner whatsoever.
9.1.2. Nonsoli citation. Seller further covenants and agrees that
until the fifth anniversary of the Closing Date, it will not, without the prior written
consent of Buyer, solicit or hire any Person employed or independently contracted
in connection with the Business then or within the prior twelve (12) months of the
Closing Date, whether as a partner, agent, employee, or otherwise.
9.1.3. Maintenance of Property. Buyer covenants and agrees, and
the Limited Warranty Deed shall state, that Buyer will use its best efforts to
maintain the Property as a public 18 -hole golf course in good condition and in
accordance with the Blackthorn Golf Course Minimum Course Maintenance
Standards set forth in the Limited Warranty Deed, as determined in Seller's sole
discretion, which discretion shall be reasonable under the circumstances.
9.1.4. Conveyance. Buyer covenants and agrees, and the Limited
Warranty Deed shall state, that Buyer will not, without the prior written consent of
Seller, sell, transfer, or otherwise convey the Property or any interest therein
(including a transfer effected by any change in the ownership of Buyer) for a period
of three (3) years following the Closing Date.
9.2. Acknowledgment. Buyer and Seller acknowledge that the
restrictions and covenants set forth in such Section 9.1 are reasonable in time, scope and
14
duration, and are essential to the preservation of the value of the Purchased Assets
purchased by Buyer hereunder.
10. SECURITY INTEREST
10.1 Grant of Security Interest. To secure Buyer's payment of the Post -
Closing Payments to Seller as provided in this Agreement, Buyer grants to Seller, the
secured party, a continuing lien on and security interest in all the Golf Carts and related
equipment existing on the Property as of the Closing Date. Buyer agrees to keep the Golf
Carts in good repair and condition and to use the Golf Carts only for their commercially
intended purposes. Buyer will not sell, transfer, or otherwise convey any interest in the
Golf Carts without Seller's prior written consent. Buyer hereby authorizes Seller to file on
its behalf all appropriate financing statements or other filings to perfect the security
interest granted herein.
11. DEFAULT /REMEDIES.
11.1. Seller's Default. In the event Seller shall default in any of its
covenants, agreements or obligations hereunder or if Seller should fail to consummate
the sale contemplated herein for any reason other than a default by Buyer, then, provided
that Buyer is not then in default of any of Buyer's covenants, agreements or obligations
hereunder, Buyer may:
(a) terminate this Agreement, without further liability on Buyer's
part (except for Buyer's indemnity and other obligations set forth herein which
expressly survive), in which event the Earnest Money deposit and all accrued
interest on the Earnest Money deposit shall be returned to Buyer by Seller; or
(b) enforce specific performance of this Agreement.
11.2. Buyer's Default. In the event Buyer shall default in any of its
covenants, agreements or obligations hereunder or if Buyer should fail to consummate
the sale transaction contemplated herein for any reason other than a default by Seller,
and provided that Seller is not then in default of any of Seller's covenants, agreements or
obligations hereunder, Seller may terminate this Agreement and retain the Earnest Money
deposit without any right on Buyer's part to claim or recover the Earnest Money deposit.
Seller acknowledges and agrees that Seller may not enforce specific performance of this
Agreement and that forfeiture of the Earnest Money deposit reflects Seller's and Buyer's
good faith, reasonable estimate of Seller's actual damages.
11.3. Earnest Money. As used in this Section 11, "Earnest Money" is
defined as the amount equal to Sixteen Thousand Five Hundred Fifty Dollars
($16,550.00) deposited with Seller by Buyer in connection with its bid for the Property.
12. GENERAL PROVISIONS.
The parties further covenant and agree as follows:
15
12.1. Waiver of Terms. Any of the terms or conditions of this Agreement
may be waived at any time by the party or parties entitled to the benefit thereof but only
by a written notice signed by the party or parties waiving such terms or conditions.
12.2. Amendment of Agreement. This Agreement may be amended,
supplemented or interpreted at any time only by written instrument duly executed by each
of the parties hereto.
12.3. Payment of Expenses. Except as otherwise specifically provided in
this Agreement, the parties shall each pay its or their own expenses, including, without
limitation, the expenses of its or their own counsel, advisors and accountants, incurred in
connection with the preparation, execution and delivery of this Agreement and the other
agreements and documents referred to herein and the consummation of the transactions
contemplated hereby and thereby. Notwithstanding anything to the contrary in this
paragraph 12.3, Seller shall be responsible for any and all closing costs related to the
transfer of the Property and Business to Buyer.
12.4. Contents of Agreement, Parties in Interest, Assignment. This
Agreement and the other agreements and documents referred to herein set forth the
entire understanding of the parties with respect to the subject matter hereof. Any previous
agreements or understandings between the parties regarding the subject matter hereof,
including without limitation, the Seller's Request for Proposal package which expired at
9:00 a.m. on October 16, 2014, and Buyer's Final Bid package to Seller, dated October
14, 2014, are merged into and superseded by this Agreement. All representations,
warranties, covenants, terms and conditions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective heirs, legal representatives,
successors and permitted assigns of the parties hereto; provided, however, that none of
the rights or obligations of any of the parties hereto may be assigned without the prior
written consent of, in the case of assignment by Seller, Buyer, or, in the case of
assignment by Buyer, Seller, which consent shall not unreasonably be withheld.
Notwithstanding the foregoing, Buyer may assign any of its rights or obligations to a
wholly -owned subsidiary of Buyer without the consent of Seller.
12.5. Buyer's Acceptance. Buyer has not relied on any representations
made by Seller other than those specified in this Agreement. Buyer further acknowledges
that Seller has made no agreement or promise to repair or improve any of the Purchased
Assets being transferred under this Agreement, except as otherwise set forth herein.
12.6. Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be by hand - delivery, certified or
registered mail, return receipt requested, telecopier (if a telecopier number is provided),
or air courier to the parties set forth below. Such notices shall be deemed given at the
time personally delivered, if delivered by hand or by courier, at the time received, if sent
certified or registered mail, and when receipt is acknowledged by telecopy equipment, if
telecopied.
If to Buyer: Acquisition Group, LLC
`M
Attn: Timothy P. Firestone, Manager
124 N. Sunnyside Drive
South Bend, IN 46617
With copies to: Joseph R. Herbert
1450 Corvey Court
Walnut Creek, CA 94598
Telecopier: (415) 633 -0169
77.1riI
Sopko, Nussbaum, Inabnit & Kaczmarek
Attn: Christopher M. Keefer, Esq.
210 S. Michigan Street, Suite 500
South Bend, IN 46601
Telecopier: (574) 234 -4220
If to Seller: City of South Bend Department of
Redevelopment
Attn: Scott Ford, Executive Director of South
Bend Department of Community Investment
1400 S. County -City Building
227 W. Jefferson Blvd.
South Bend, IN 46601
Telecopier: (574) 235 -9021
With a copy to: City of South Bend Legal Department
Attn: Cristal Brisco, Corporation Counsel
1200 S. County -City Building
227 W. Jefferson Blvd.
South Bend, IN 46601
Telecopier: (574) 235 -7670
12.7. Severability. The parties hereto hereby expressly agree and contract
that it is not the intention of any party to violate any public policy, statute or common law
principle, and that if any provision of this Agreement is ultimately determined to be invalid
as applied to any fact or circumstance, it is their desire that such provision shall be
modified by the minimum extent necessary to render it valid and shall not affect any other
provision or the same provision, applied to any other fact or circumstance.
12.8. Attorneys' Fees. In the event any action is initiated for any breach of
default in any of the terms or conditions of this Agreement, then the party in whose favor
judgment shall be entered shall be entitled to have and recover from the non - prevailing
party all costs and expenses (including attorneys' fees) incurred in such action and any
appeal therefrom.
17
12.9. Exhibits. The exhibits referred to herein and attached hereto are
incorporated herein by reference as if fully set forth in the text hereof.
12.10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
12.11. No Third Party Beneficiary. This Agreement creates rights and
duties only between the parties, and no third party is or shall be deemed to be or shall
have any rights as a third party beneficiary.
12.12. Time is of the Essence. Time is of the essence for the performance
of each and every obligation hereunder.
12.13. Headings and Conjunctions. The headings of the Sections and the
subsections of this Agreement are inserted for convenience of reference only and shall
not constitute a part hereof. The use of the singular shall be determined to include the
plural.
12.14. Governing Law; Jurisdiction. IN ALL RESPECTS, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS
AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF INDIANA APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF
REGARDING CONFLICT OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA. BUYER AND SELLER AGREE TO SUBMIT TO PERSONAL
JURISDICTION AND TO WAIVE ANY OBJECTION AS TO VENUE IN THE COUNTY
OF ST. JOSEPH, STATE OF INDIANA. SERVICE OF PROCESS ON BUYER AND
SELLER, IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT
SHALL BE EFFECTIVE IF MAILED TO SUCH PARTY AT THE ADDRESS LISTED
ABOVE.
12.15. Waiver of Jury Trial. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY
AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON,
im
AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS,
THEREFORE TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE
JUDICIAL SYSTEM AND OF ARBITRATION, THE PAR-TIES HERETO WAIVE ALL
RIGHT TO TRIAL BY JURY ]N ANY ACTION, SUIT OR PROCEEDING .BROUGHT TO
FEN FORGE ORIDEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT,
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties -heroto on the day and year first above written.
CITY OF SOUTH BEND, INDIANA,
DEPARTMENT OF REDEVELOPMENT
Y.
Printed:
Title:
ATTEST
By
Printed,
Title:
1.9
ACQUISITION GROUP., LLC,.
an Ind
Y company
1 1-1
By: _.
Tlr6d'Wy_P. Fh;w0one,
.Autho.rized Representative
.Y:
J'osep *erbert
Auth ze Repres entative
entative
Exhibit A
LEGAL DESCRIPTION OF PROPERTIES
Lot Numbered Six (6) as shown on the recorded Plat of Blackthorn
Corporate Office Park, recorded October 7, 1994 as Document Number
9438010 in the Office of the Recorder of St. Joseph County, Indiana
(Parcel No. 71- 03 -30- 200 - 002.000 -009).
Lot Numbered Seven "A" (7A) as shown on the recorded Plat of Blackthorn
Corporate Office Park, Minor #10 and Blackthorn Corporate Office Park,
First Replat recorded July 19, 2006 as Instrument Number 0630469 in the
Office of the Recorder of St. Joseph County, Indiana (Parcel No. 71 -03-
30- 200 - 003.000- 009).'
Exhibit B
BILL OF SALE
The City of South Bend, Indiana, Department of Redevelopment ( "Seller "),
for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in accordance with and subject to the terms and provisions of the
Asset Purchase Agreement by and among Acquisition Group, LLC, an Indiana limited
liability company ( "Buyer"), and Seller, dated as of , 2015 (the "Asset
Purchase Agreement "), hereby transfers, conveys, assigns and delivers to Buyer, its
successors and assigns all of Seller's right, title and interest in and to all of the "Purchased
Assets" as such term is defined in the Asset Purchase Agreement.
THE TRANSFER, CONVEYANCE, ASSIGNMENT AND DELIVERY
CONTEMPLATED BY THIS BILL OF SALE SHALL BE WITHOUT REPRESENTATION
OR WARRANTY OF ANY KIND BY SELLER EXCEPT FOR THE REPRESENTATIONS
AND WARRANTIES OF SELLER SET FORTH IN THE ASSET PURCHASE
AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING
SENTENCE, EXCEPT AS SPECIFICALLY SET FORTH IN THE ASSET PURCHASE
AGREEMENT, SELLER HEREBY DISCLAIMS ANY REPRESENTATION OR
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
WITH RESPECT TO THE PURCHASED ASSETS.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of
12015.
CITY OF SOUTH BEND, INDIANA,
DEPARTMENT OF REDEVELOPMENT
By:
Printed:
Its:
Exhibit C
GENERAL ASSIGNMENT
STATE OF INDIANA
KNOW ALL MEN -BY THESE PRESENTS
COUNTY OF ST. JOSEPH
That concurrently with the execution and delivery hereof, The City of South Bend,
Indiana, Department of Redevelopment ( "Assignor"), is conveying to Acquisition Group, LLC,
an Indiana limited liability company ( "Assignee "), by the appropriate Bill of Sale certain
personal property as stated therein.
It is the desire of Assignor to hereby transfer, convey, assign and deliver to Assignee
all of its interest in the personal property more specifically described herein.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, in hand paid by Assignee to Assignor, the receipt and sufficiency of
which are hereby acknowledged by Assignor, Assignor does hereby TRANSFER, CONVEY,
ASSIGN and DELIVER to Assignee, its successors and assigns, all of Assignor's right, title
and interest in and to all of the "Purchased Assets" as such term is defined in that certain
Asset Purchase Agreement (the "Asset Purchase Agreement ") by and among Assignee, and
Assignor, dated as of , 2015, other than the Purchased Assets that are
being transferred, conveyed, assigned and delivered by Assignor to Assignee pursuant to
that certain Bill of Sale dated the date hereof.
THE TRANSFER, CONVEYANCE, ASSIGNMENT AND DELIVERY
CONTEMPLATED BY THIS GENERAL ASSIGNMENT SHALL BE WITHOUT
REPRESENTATION OR WARRANTY OF ANY KIND BY ASSIGNOR EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES OF ASSIGNOR SET FORTH IN THE ASSET
PURCHASE AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE
PRECEDING SENTENCE, EXCEPT AS SPECIFICALLY SET FORTH IN THE ASSET
PURCHASE AGREEMENT, ASSIGNOR HEREBY DISCLAIMS ANY REPRESENTATION
OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
WITH RESPECT TO THE PURCHASED ASSETS.
IN WITNESS WHEREOF, Assignor has executed this assignment as of
, 2015.
CITY OF SOUTH BEND, INDIANA,
DEPARTMENT OF REDEVELOPMENT
By:
Printed:
Its:
Exhibit D
LIMITED WARRANTY DEED
This Instrument Prepared By:
Christopher M. Keefer
5th Floor - Plaza Building
210 S. Michigan St.
South Bend, Indiana 46601
After Recording, Return to:
Acquisition Group, LLC
124 N. Sunnyside Ave.
South Bend, IN 46617
Property Appraiser's Tax Folio No.:
[LIST]
This space reserved for Recorder's use only.
LIMITED WARRANTY DEED
THIS INDENTURE WITNESSETH, that City of South Bend, Indiana, Department of
Redevelopment, by and through its governing body, the South Bend Redevelopment Commission
( "Grantor "), CONVEYSAND SPECIALLY WARRANTS to Acquisition Group, LLC, an Indiana limited liability
company ( "Grantee "), for the sum of One Million Six Hundred Fifty -Five Thousand Dollars ($1,655,000.00)
and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
following described real estate located in St. Joseph County, State of Indiana:
Lot Numbered Six (6) as shown on the recorded Plat of Blackthorn
Corporate Office Park, recorded October 7, 1994 as Document Number
9438010 in the Office of the Recorder of St. Joseph County, Indiana
(Parcel No. 71- 03 -30- 200 - 002.000 -009).
Lot Numbered Seven "A" (7A) as shown on the recorded Plat of Blackthorn
Corporate Office Park, Minor #10 and Blackthorn Corporate Office Park,
First Replat recorded July 19, 2006 as Instrument Number 0630469 in the
Office of the Recorder of St. Joseph County, Indiana (Parcel No. 71 -03-
30- 200 - 003.000 -009).
Such real estate (collectively, the "Property ") is commonly known as
Blackthorn Golf Club, 6100 Nimtz Parkway, South Bend, Indiana 46628.
It is understood and agreed by the parties hereto that title to the Property is warranted only insofar
as it might be affected by any act of the Grantor during its ownership thereof and not otherwise.
Each of the undersigned persons executing this Limited Warranty Deed (the "Deed ") on behalf of
Grantor represents and certifies that s /he is a duly authorized representative of Grantor and has been fully
empowered, by proper action of the governing body of Grantor, to execute and deliver this deed; that
Grantor has full capacity to convey the real estate described herein; and that all necessary action for the
making of such conveyance has been taken and done.
This Deed is subject to any and all easements, covenants, conditions, restrictions, and other
matters of record, including, without limitation, the matters stated in the Warranty Deed granted by the St.
Joseph County Airport Authority dated October 12, 1992, and recorded on October 13, 1992, as Document
No. 9237762 in the Office of the Recorder of St. Joseph County, Indiana (the "Airport Authority Deed ");
subject to the lien for real property taxes not delinquent; subject to rights of way for roads and such matters
as would be disclosed by an accurate survey and inspection of the real estate; and subject to all applicable
building codes and zoning ordinances.
Grantee, for itself and its successors and assigns, covenants (1) that it shall maintain the Property
as a public 18 -hole golf course in good condition and in accordance with the Blackthorn Golf Course
Minimum Course Maintenance Standards attached hereto as Exhibit 1, as determined in Grantor's sole
discretion, which discretion shall be reasonable under the circumstances, and (2) that it will not, without the
prior written consent of Grantor, sell, transfer, or otherwise convey the Property or any interest therein
(including a transfer effected by any change in the ownership of Grantee) for a period of three (3) years
following the date of this Deed. The covenants stated in this Deed shall be covenants running with the land
and shall be binding for the benefit of and shall be enforceable by Grantor, the City of South Bend, Indiana,
and any successors in interest to the Property against Grantee, its successors and assigns, every
successor in interest to the Property, and any party in possession or occupancy of any part of the Property.
If, subsequent to Grantor's delivery of this Deed to Grantee, Grantee shall violate any covenant,
condition, or restriction stated in the foregoing paragraph of this Deed or stated in the Airport Authority
Deed, then Grantor shall have the right, at its option, to re -enter and take possession of the Property and
to terminate and revest in Grantor the estate conveyed by this Deed to Grantee. The intent of this provision
is that Grantee's compliance with said covenants, conditions, and restrictions is a condition subsequent
upon which the conveyance of the Property to Grantee is made.
IN WITNESS WHEREOF, Grantor has executed this deed this _ day of , 2015.
GRANTOR:
City of South Bend, Indiana Department of Redevelopment
By:
Printed:
Its:
ATTEST:
By:
Printed:
Its:
STATE OF INDIANA )
) SS:
ST. JOSEPH COUNTY )
Before me, a Notary Public in and for said County and State, appeared
and , the duly authorized and of the South Bend
Redevelopment Commission, the governing body of the City of South Bend, Indiana Department of
Redevelopment, who acknowledged the execution of the foregoing Limited Warranty Deed for and on
behalf of said Grantor, and who, having been duly sworn, stated that any representations therein contained
are true on the _ day of 2015.
My Commission Expires:
, Notary Public
Residing in St. Joseph County
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security
number in this document, unless required by law. Christopher M. Keefer
Grantee's mailing address for tax statements is: Acquisition Group, LLC, 124 N. Sunnyside Ave.,, South
Bend, IN 46617.
EXHIBIT 1 TO LIMITED WARRANTY DEED
ALACKTRORN -CIOL - GdMURS)
MTNJRWOM COURSE.- T MANGE:9T:P NDARDS
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v�rll gove�► ttiE maiizfeitai�oe bi3eiatigiv�:
:GREENS IRACTYGE. PUTTING: GREENS &NURSMUS
A MONO - _Peverx .drys l?,er yvc a at ,a.h���l � -off X116" „ 4'! d%, —rig the ;growing seaso>U.
k $i nt grass Iv cW" belght of `collar, or ,apron .of _green .should 'be tbie: saiia� as
kxeiiglit o ctit for teen.
`D. Qhaiige ejip lbg4dofs on All &- ,ve' � azzd praot7ice, putem- greens laity`du ing ft acfive
seasoit, Cup_69t oiiWillbomovedat�e sett e�itymet #'�oxrAthepfeviW4plaoeiben�ancl
ij W deteriailned bi the weeldyidEaly cl}f placement plaxi :As a rule; six cups Will be
set back, six Will -.fie set fOW1e acid six ?iv-z l o set f7rg7ht,
e. lZepe x 'MilivaAg, divots or a4y" other dainagecl tui£ on. 01%. eai'.all greezis aittl practice
giezis di1yf ievYS.:are expected to spend at least 10iiutes pez tlay, per hole onthis.
Wk.
I , Aezlfy all -g eo...W4,;p�racuee putulig .gceei � 4i?.1 jtiuseiies a`t Mal ti rlme�. per year, c�
as dictated by coicel4ow!
E, Tapdiess all --greens, pfact ce putting o. teeias and nurseries as zaeeded to ifiof tatia a
sogth pig a�iraee, Toptesslrigxe a infix similaro that used:to eonsruat the
greens.
re tical rnow Of all greens,. peaotiee puffing greens :a itl rigors Ties shall be
pez*zed..as appropi'tat6 to miooth 64 trae the putting suiAces;
G. Spilung o all giee practloe gieons sixa. b, tieiCfoie aseeced .b_etvvepp
l aei' eatioins: to zn zttain waters &Rlti:at m
.H. VditiilW&A . -.All Unt V*4 :greens, pzac# ce gwila 'go ci .dui =sei>es shall - receive a
oouplete feittlizer (3-44 xatio� at xale .off i/21bs. %i111!l per groWii�: month,
Tungitside F All gxeeiixs, p� atic.e greens ai?d nurseries shall lxave appoprtatengxeiile
app�cattonsiopievei�,taildloi cont�olfi7ngal slxsease ac#syity, t�re�ert #atiyeapl�lieat<oiis
axe - essexitial oxx befit g>,'ass): _
.i
1.6 Pre-anb goijt heMeides sUdb 4sBA1an,, D4othal, ete,,-shall be used --In the appr9pffide,
amounts and a ppiopriate 000s to PPOVeat W into greP
dweiod di, jolt to
eradicate;
99,01A, practice
4141M 1A 0-40 of
undeniable. grasses and weeds.
L, -Ingeotioldes All grechs, practice greens and ftoAaf% Ae.1l be treated as ....e
pKe'vent or halt insect damage;
M. Spoed - TT -d0 desired average d 98111006U.4r_
a bY'4 sth4pthook 4hau b6,9.-.O to qqs
GXpimp " be maintained at a .0iswer, speed If necessary , during verlods of stress or
intensive Maintenance. or at a faster speed fOr certain tbijihodioinu (e.g.; a
ti.a. qualifier).
TF99 ALL ATMAS USED FORTER SURFACE
A MyWttjo -All too sh yjI be inow0d .at & of 3/01- 5/8" four brines per we c during
growing season;
, All.woit. gogs bff toes shall be topdrepaed weekly;
or more often if
needed, -to Ml divots and levdl too --sutface,
C. ot less than 10 lbs.
c�ijg -,All tee tr6as �kdl bo. ovosoe&4 annually t 9 rate of -n s
y
pq pa p fcot. So used shall be suN
lo species or blend,
Di Set ljp= Too markdks,W 611 -too eqt `p
iinejit "I lie moved daily y t :lliaper tee 1ag and
AgAW of W Vogt Placrrineiii of toes 'hall be dome in nf-w1
.0 on. q with Pin poswons
aud!prer a-weekly. 'Ian.
p
R W6ed Cofift6l Teos'slidibo Relit weed --fiooto an extent Ot Oroost MI.-I ftq OA* bY- ft
proper aiO timely application'bf post-emprgept herbicides.
Vei*aIUoW14g- Ali tees dull bo Vord-ll, d
CA. q MOWIq OS
build -up o"naydUgrp Wfh k
Ap;ejfiq4tiqn.- All tees shall be acriflod at IoW eveky. *6 months from Mar6hifirough
actob. OVI...
H. Fertilizer - All fads Aid! be feyWized Vith pqmplpto '(3-1-2 ratx6) equal to
'greons applications,
:2
of
A., .41411 be 'I j1poAlbroe 6p� 'P, .6
w -All Aim.- -p Wed. a prwwk, -at aj�,
v aad . ". I � - _ .
-7 p We, Od fhtl b
6144 Of ft '_Y
#60; season .
XMI � . - dieing. (46.1.
OntutmoNwi
13- a mm`i mUn 0 two t ties per YeEg, MOX
OpS .jpd $j qgAqia fion Wet exceed
ppi.4
of eiglir inches vu
ho,
4
center -6k, -of- akmad df less IWA. I(TI..
AU--fAikwqys he fext lli ed With 4 16OM'_p
10te feltilhZ fisx sbijldft
results auth.fe 14. NjJm fot iw iti ol~ 2 MOO*.
Di 'VqrOdalM6,Aig K All forftysMift bb,61000411Y M wq�4 4 ppf, . MOY, 9 Q luO P;
e t oikol'
bapk, it uki,
W PajTW4YS. §11JEO
be Icopi. wped A-pq to an pL#pjAt of . af least: 9 81%. of the
060 by the Ptqp& and -filn*-96004
-ROUGHS
Aft filed areas Of AY Odopt greeiq4j tees; , far*4ys haWral gi'd*4 areas,
A. Mowing R.All;o-dighsAall be.lnowdd as_ncpW4ty during ftyweaftolpalgtd
-11/4" - '1112".
at least
AedfirWO)a 1) FEdivay.:to",Vee life play areas pball be Orfitod
two ti es Pr year;
2 Wii . . '-to ..h
W. Woo&dplay'000 iig 1� b__ASA�y
OAd/or naaiu #arn turf,
Fpjtij' i mfioii - OW&Afa p ,,;q pqtWt_ SO
7 *h* p .. ... 29 R, , w app OR pMi
I3, Weed Gontrol Small be pefotiecl as rieFessay I o vp or to
3
-A11 areas I . n Wbi6h native. or ilitrodueed vegetation is alloweal to sxu-"v',Ive :Wfh6ut youthIP:
t,
W .4 -.4m cir oft f ro-o'do turf i1jaintb "t
cu.. lvg,. Mg, -.8.
'�Idpq, barri -ails -efo. Sudh areas" are to bb,
P14Y areas, SO _Ors� wIndbppoks, nature t.
mintai&-d—frep of trash, K6x!ous weeds 4i�d Vdrtobtafej* " ft ki 4 - is such.maithei . as to. "ci-OxvV-1-y'
!.us kisM4y apply. S,,uchn4tural grovr&
..
areas maybe imprgved and moyfi-om time. to time:bas bjo'otedtoidigittionoultivatioilpruniiia,
or other snob desirable
W qs May - P.heoessaly 01 . to establish or maintain #*M.
.A Clean Up .. A-111j],qnters shallbci mqiotai.nied flee oftrasb mid d6bris such as PaPbr,
driicing cans, bottles, kalldf limbs and leaves, etc.
Feed pantrol - All.plantors- shall be -ma lift6d free of Weeds Oi lgpos Whet& by
theo4snloal, fnangal. q 6hoft) meads:
D, v L n itets
shall be trimmed for protectionfibm *Ind gnd insect 4=496 and for app ba
TREES — ALL ItRERVITIIIN TJIE- PROPkRTY-IIIq-)3S, OFTHE GOLF :COURSE
A, Stales �.'reesslxall be staled as x�ecesSaiy until of sufficient Size. to stain. u�zxassisted.
Stakes shall i?e vod n.as possible;
siblpi
I . �
X XmW-bg -All trees shill be properly prtmed for. pro,teot.lon Rom wind and Pots as
well as for appearance and safety by using est.6bliAwd kboAdulturod ptacticbsi
C. MqvYiiig -Large .area
1nowm sWl Aof die used witbin ona-foot -of the -frimk- of any
tree.
1). 9 044B dA 4p renloved and
oval and doqd teMo -for *Wevar . 0,4
rep '6 WoAdn days, Replacement shall be m
,1400 1�10111i tw g add W411. a tree of
appropriate type aha size-
=GATM—ALL MurpmENT MOM= TO-IRRIOAME ALLARRAB f OF
MOPERTY
A. -d 'd t9 P**
this pYOpei .opetatio :of 4on
pgo
j a pq
C. Tho,odqfse Oloti -094'.0y. with :A0 -4ppjIPqb.'..e lacy
rpla#yo to ,.gQv. 09 q wqfeA gi
VENCES —AM 'FBNCES,AND WALL S. CIIAIN LINk - OR BARBED WIRE, t ETC....ON
-
OR WITHIN BOUNDARIES OV THE M PERTY
A. Ro.aif all *40A VT Aqlnggod.fo pw�y
B
-1-40%$ 90-494
tqpjacq as- necessary all foiicos, pies 4 d lo . n go-eded olcJ1 a devio os
fox i6.g*q on: of-theg-ojfoomsooneqw -dbfit
p
A. c "'40R""'oo s: All 6o' th shall to b6oked at least ho-udy and:
0' 11". . .. . . ..
-a polices
0�v 4s PMP,
bq- PTQ-Y-P
p4ntj
adequat �nolffi Ito. smu ar Y,
are e.110 ej
_ b �t
... ........ . •
. . . . .
B. —d t all tiftios.
All 0 00ttir AM! ln� "UN M :999 .. -.-Ppga
.0 %pil
- 'shal
bfugh?--dio. j%Wj 4r6lcen
eq#!ne fra. mdmead� orgWged, safe and
nt, ja lip be-dlean
omt fox
0
..y pj4g
JaJitepej. 01mia
allpaijpathsk j4p -i4Adqjq=-oqndi drop.dirpr-cauptly-,
MOT90.
All 814Pw a (Spq:lo and concrete paths ftua be Dept oftod. IM gi ng around V4 ve b0 0
0, mew
bogies, badIdEl *04 to that _0 is no bsoucopn -of
PkOV64004 etc. 911WI �b dq'he as u pre
1.3jay or maintenance from growth around these h6ths,
I
SAND TRAPS
All up-oa. t4pp stgl be 0190 m -49ces$oxy to ui.W'nf* awapproprkt o lip,, rakpd . daily and filled
with flesh -sand as- needed to maintaiii ii jiAi 0 (is Ofid An bottom,
Un f V 46pt -0 the
utft D
will be of a (lust dies V-P e4 suitable fork tra p use an d compatible a wIth the
pgtejnal course sand uh appearance std piggbility.
PRACTICE CENTER
A. Practice liolop will be maintained in every tespect in the same •ikiftwr as the doles on
the golf Omits&
D. Range -tee will be, wahafaifieid more aggNOI'My than golf WW6 00s to his%O
rotation of bitdilg status wid. -go I od. quality glass too ate .. for pg#oAs...
C. individual tee stations will be delineated at 10-footminimal. intervals using roix-S or
6thef rdgrkers. Bag : cks
114 WW be pWide4 at 411 statIOAS,
COLOR AREAS
Thevprj I
oitspj6n�ing.oiogs'thici.uahotittlieco= shall be qultivatO4, wooded, pruned -and fortilized
.g I - , B skull
on a- replai bggjg, with at least two r eplanting, pro- rWh f o T ann uals scheduled each year,
CREWS
Other than.i.P00g xAq. e111,e11-t Ve" a Mal eiia#ice crew of sufficient -i -ze -shall be,on duty a�
coitxse dilly super. sod by the sppei!intetident, :R eg�* ouxs wxlX be es #alSXished Mdn as taiiieii,
TRASHAND REFUSE
ShRll be collected. daily anel remnvca ixaln the property as laec'essaiy to einsuze rri'iriir a1
piol5.wns ftbm xefiase odo is, rinser*, plo.
VERTEBRATE PBSTCON'TROL
Sliall Ike routinely perfoimtci o der y on an o.1"go xig basis, n stueh a.mamer
:that veifebyate pest popplcl -cim ate steadily xeslucea and eventually elfiWnatedi ip a f s�Xdn
cotisistent with applicable state jaws.
AQUATIC
All _l l es . ?oricI aind ;st -eaU14 akiall be maintained in a she aixd sanYtaiy .m liner and i good
appearaxice thraugh the application of a pprl* ar alb. yogetat - coptrols,
.SOIL .AND WATER.
An Xy iswiilbepax b. e ciyearlybyanapprovedpxofessional- labtixato�y, $ #11 phoft<i�fs�allbe
-maWained at fi level of 6.3Iq 6A Plautdr foilsbalill4ye aRki agreeatrlewith.pla4f- spodzes.
7