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HomeMy WebLinkAboutPurchase Agreement ASSET PURCHASE AGREEMENT BETWEEN BROOKSHIRE FIRST MORTGAGE, LLC AND CARMEL REDEVELOPMENT COMMISSION plySec This Asset Purchase Agreement ("Agreement") is made and effective this 5 day of Attgrrst, 2006 (the "Effective Date") by and between Brookshire First Mortgage, LLC, an Indiana limited liability company (the "Seller"), and the City of Carmel, Indiana, an hidiana municipality, for and on behalf of the Carmel Redevelopment Commission (the`Buyer"). WHEREAS, Seller owns and operates an eighteen hole golf course, including a driving range, clubhouse, restaurant and bar, pro shop and related facilities under the trade name "Brookshire Golf Club" (the "Golf Business") located on certain real estate commonly known as 12120 Brookshire Parkway, Carmel, Indiana, more particularly described on Exhibit A, attached hereto and made a part hereof(the "Real Estate"); WHEREAS, Seller has decided to sell substantially all of the assets of the Golf Business to Buyer; WHEREAS, Buyer desires to purchase such assets upon the below described terms and conditions. 'NOW, 'THEREFORE, in consideration of the mutual covenants and conditions herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and confessed, the parties hereto do hereby agree as follows: 1 . Purchase and Sale of Assets. 1.1 Assets. Subject to this Agreement's terms and conditions, Seller does hereby agree to sell to Buyer and Buyer does hereby agree to purchase from Seller the assets described below, consisting of all or substantially all of the assets necessary for the operation of the Golf Business, except for the Excluded Assets (as defined in Section 1.4 below): (a) the Real Estate; (b) all improvements located on the Real Estate, including but not limited to the building known as the clubhouse (the "Clubhouse") and all pro shop, restaurant and bar fixtures attached thereto or installed therein, cart paths, inTigation systems, wells, outbuildings, maintenance sheds and facilities, chemical storage facilities, tee markers, ball washers, hole diagrams, stakes, cart barn, lighting facilities, flags, and any other property that is affixed to or attached to the Real Estate (the "Improvements"); (e) all of Seller's right, title and interest in and to all maintenance equipment, lawn mowers, aerators, tines, rakes, shovels, tractors (the "Course Maintenance Equipment"); - 1 - 254218 5 (d) all of Seller's right, title and interest in and to all golf carts (both pull, electrical and gasoline carts) used in the operation of the Golf Business, including but not limited to Seller's rights, title and interest under its Equipment Leases for golf carts (the "Golf Cart Inventory"); (e) all of Seller's right, title and interest in and to all driving range equipment, golf ball retrieval equipiiient, and nets used in the operation of the driving range (the "Range Equipment"); (f) all of Seller's right, title and interest in and to any and all restaurant and bar equipment and machinery, refrigerators, freezers, icemakers, ranges, ovens, and other kitchen equipment, dishwashing equipment, restaurant furniture and furnishings, trade fixtures, smallwares, dishware, silverware and glassware, cups, napkins, linens, kitchen towels, and uniforms used in the operation of the restaurant (the "Restaurant Equipment"); (g) all of Seller's right, title and interest in and to any and all pro shop and office equipment, computers, printers, copiers, facsimile machines, credit card machines, and related accessories, telephone and cable equipment, televisions, and other electronic equipment, cash registers and other accounting equipment, display shelves and cases, furniture, shower room towels, vacuum sweepers, brooms, mops, and other maintenance machinery and equipment used in the operation of the Golf Business (the "Miscellaneous Equipment"); (h) any and all supplies of paper cups, plates, and napkins, drinking straws, plastic ware, paper towels, toilet tissue, and other paper products, stationery, copier/printing paper, advertising materials, soaps, detergents and other consumable cleaning supplies held for use and consumption in connection with the Golf Business (the "Miscellaneous Supplies"); (i) any and all grass seed, fertilizers, sand, pesticides, mulch, humus, Implanted trees, bushes, and flowers, peat moss, turf farm, extra flags, extra tee markers, extra ball washers, irrigation supplies and posts held for use and consumption in connection with the Golf Business ("Course Supplies"); (j) subject to Section 2.2, any and all inventory of goods and personal property held for sale or rent to the public (excluding food and liquor items), including but not limited to, golf clubs, golf balls, golf bags, gloves, tees, clothes, umbrellas, hats, ball markers, shoes, range balls, golf memorabilia, books, and magazines (the "Pro Shop Inventory"); (k) subject to Section 2.2, any and all inventory held for sale and consumption by the public in the restaurant or over-the-counter, including but not limited to fresh and packaged food, condiments, spices, snacks, candy, ice cream, coffee and tea, soft drinks, bottled water, and other items held for sale to and consumption by the public, excluding liquor and the Pro Shop Inventory(the "Food Inventory"); - 2 - 254218_5 (1) subject to Section 2.2, any and all inventory of liquor, beer, and wine, together with mixers and garnishes, held for sale to and consumption by the public in connection with the operation of the Golf Business (the "Liquor Inventory"); (m) to the extent transferable, all of Seller's right, title and interest in and to the use of the name "Brookshire Golf Club," the goodwill of the Golf Business, any lists or members and other patrons, and the telephone and facsimile numbers, website address and related licenses and maintenance agreements, and post office boxes used in connection with the operation of the Golf Business (the "General Intangibles"); (n) to the extent transferable and subject to compliance with all applicable laws and regulations in connection therewith, the alcoholic beverage license or licenses that permit the lawful sale of alcoholic beverages in connection with the restaurant, bar and catering operations conducted in or from the Clubhouse (the "Liquor License(s)"); and (o) any and all security or advance deposits, reservation fees or advances, and other such credits or financial resources given to and held by Seller that apply to any future obligation of Seller to provide, pay for or perform any banquets, dinners, catering, golf rounds, golf tournaments, golf equipment, prizes, awards, golf lessons, or other goods or services, if and to the extent Buyer will be obligated to provide, pay for or perform the same (with credit for such deposit, after the sale of the Golf Business to Buyer (the "Advance Deposits"). All of the foregoing assets to be sold are hereinafter sometimes collectively referred to as the "Assets" and include all assets of Seller necessary for the operation of the Golf Business, except the Excluded Assets as defined in Section 1.4 hereof. The Pro Shop Inventory, the Food hmventory and the Liquor Inventory are sometimes referred to collectively as the "Retail Inventories." The Course Maintenance Equipment, Golf Cart Inventory, Range Equipment, Restaurant Equipment, and Miscellaneous Equipment are sometimes refen-ed to collectively as the "Equipment." 1.2 Assumption of Liabilities. Except to the extent otherwise specified herein, it is specifically agreed and understood that Buyer shall assume none of Seller's current or long term liabilities, including but not necessarily limited to the following liabilities arising out of Seller's operations of the Golf Business: (a) all withholding taxes including, but not limited to, FICA, all state, city, local and area withholding income taxes, federal and state income taxes, federal and state unemployment taxes and all sales and use taxes relating to Seller's operation of the Golf Business prior to the date of Closing; (b) any liabilities of Seller with respect to any of its pension plans, health and welfare plans, prior pension, prior retirement or profit sharing plans, whether the same are or have been trusted or not and whether applicable to salaried or hourly employees of the Seller; - 3 - 254218_5 (c) all real and personal property taxes (and penalties and interest) and real and personal property assessments, and inventory taxes, to the extent the same are Seller's responsibility pursuant to the tax proration provisions set forth in Section 5.5 below; (d) accounts payable which relate to goods or services received by Seller up to the date of Closing, whether or not the Seller has received an invoice for the same on or prior to the date of Closing; (e) any liability of Seller through the date of Closing for earned or accrued vacations for hourly or salaried employees and earned or accrued sick pay of such employees of its Course; (f) any lien, encumbrance, mortgage, assignment of rents, security interest or other interest in the Assets, except as provided in Section 1.3 below. 1.3 Assumption of Equipment Leases and Miscellaneous Obligations. Seller will provide Buyer with a copy of each lease or other financing agreement (the "Equipment Leases") related to any item or items included in the Equipment or other leased Assets, if any. Buyer will assume all such transferable Equipment Leases as of the day of Closing without any adjustment of the Purchase Price. Buyer and Seller will cooperate in giving any required notices to, and obtaining any necessary consents from, Equipment lessors with respect to such assumption by Buyer. At Closing, the following obligations will be ascertained: (a) the amount of the Advance Deposits as described in Section 1.1(o); and (b) the reasonably estimated cost to satisfy the obligations of Seller associated therewith to provide, pay for or perform any banquets, dinners, catering, golf rounds, golf tournaments, golf equipment, prizes, awards, golf lessons, or other goods or services, to the extent Buyer will be obligated to satisfy the same on or after the date of Closing. After determination of such obligations, an appropriate credit will be issued to the Buyer for items (a) and (b), provided that no credit shall be given for season golf memberships or passes, "player's cards" or any promotional discounts, ads or coupons issued, given or published by Seller. 1.4 Excluded Assets. The sale of Assets contemplated hereby shall not include, and there is expressly excluded from the term "Assets" each and all of the following: (a) Seller's cash on hand and in banks; and (b) Seller's accounts receivable, including, without limitation, accounts receivable for Seller's customers prior to the Closing, together with the general accounting records of Seller which evidence such accounts, insurance, tort and contract claims (except as provided in Sections 10.1 and 10.2) and other choses in action, and all property, assets, rights or interests not specifically included within the Assets or otherwise specifically transferred to Buyer hereunder or pursuant hereto. - 4 - 254218_5 Notwithstanding the foregoing provisions, Seller agrees that Buyer may identify itself as the purchaser/successor of Seller in connection with Seller's telephone and facsimile numbers, post office box number, and webpage advertisements. 1.5 Swim Club and Cell Tower Parcels. In addition, Buyer acknowledges and agrees that Seller previously has sold or is completing the sale of the following real estate parcels that previously were combined and operated in conjunction with the Golf Business, and that such real estate, together with all improvements thereon and rights, easements, covenants and privileges appurtenant thereto are excluded from the Assets: (a) Seller sold and conveyed to Brookshire Swim Club, Inc., the parcel described in the Warranty Deed recorded February 24, 2005, a copy of which is attached as Exhibit B hereto and made a part hereof(the "Swim Club Deed"). The Swim Club Deed contains certain easements, restrictions, covenants and other provisions, including a right of first refusal, use restriction with a right of reversion, and an option to purchase reserved by the Grantor (i.e., Seller) thereunder. Buyer understands and agrees that the reserved option to purchase will be terminated at Closing in connection with the payoff of Seller's mortgage, and that all other easements, restrictions, covenants and other provisions set forth in the Swim Club Deed run with the land and, as such, will be binding upon and inure to the benefit of Buyer. As of the date of this Agreement, the Swim Club parcel is separately metered and billed for water and gas, and has agreed to arrange for separate metering and billing for electricity as soon as possible after the pool is closed for the 2006 season. (b) Seller is in the process of selling the parcel described in Exhibit C hereto by special warranty deed (the "Cell Tower Parcel Deed") to Brookshire Cell Tower, LLC ("BCT"). BCT intends to lease all or substantially all of the parcel to a third party for its construction, installation, and use of a wireless communication facility (the "Cell Tower Lease"). In connection with the sale to BCT and the Cell Tower Lease, Seller is (a) granting an access easement over the strip of ground described in Exhibit D, attached hereto and made a part hereof, together with an certain underground utility easements and rights associated therewith (the "Cell Tower Access and Utility Easements"), and (b) encumbering the Real Estate with a restrictive covenant to the effect that, during the term of the Cell Tower Lease, the Real Estate shall not be used for the installation, operation or maintenance of commercial wireless communications facilities or equipment if such use, installation, operation or maintenance would interfere with the Tenant's Permitted Use (as defined in the Cell Tower Lease), as determined by radio propagation tests performed by the Tenant (under the Cell Tower Lease) in its sole discretion, and at its sole expense; that the owner of the Real Estate will notify the Tenant in writing prior to granting any third party the right to install and operate commercial wireless communications facilities or equipment on the Real Estate; that if Tenant's radio frequency propagation tests demonstrate that any such proposed use for wireless communications facilities or equipment would - 5 - 254218 5 produce levels of interference unacceptable to Tenant, then the owner of the Real Estate shall be prohibited from such proposed use; that in the event of any breach of this covenant, the Tenant will suffer irreparable injury, and therefore, will have the right, in addition to any other rights that it may have at law or in equity, to enjoin any such use, installation, operation, or maintenance or commercial wireless communications facilities or equipment in violation of this covenant; and that this covenant shall expire upon expiration or termination of the Lease (the "Non- Interference Covenant"). The Cell Tower Access and Utility Easements and the Non-Interference Covenant will run with the land and, as such, will be binding upon and inure to the benefit of Buyer. (c) Buyer shall review and examine the Swim Club Deed, the Cell Tower Parcel Deed, including the Non-Interference Covenant, and the Cell Tower Access and Utility Easements during the time period provided under Section 6.3.0 of this Agreement for Buyer's review and examination of the Title Commitment and Survey, and shall make any objection thereto during such period. Any such objection by Buyer shall be treated in the same manner as any other objection to a matter disclosed by the Title Commitment or Survey. To the extent Buyer does not so object, or if any such objection is subsequently cured, resolved or waived, all of the easements, rights, privileges, covenants, restrictions, and other matters included in the Swim Club Deed, the Cell Tower Parcel Deed, and the Cell Tower Access and Utility Easements shall be deemed to constitute Permitted Exceptions. 2. Purchase Price. 2.1 Purchase Price Excluding Retail Inventories. The Purchase Price for the Assets excluding the Retail Inventories shall be Two Million Nine Hundred Ninety-Nine Thousand Nine Hundred Ninety-Nine Dollars ($2,999,999.00). The Purchase Price shall be payable in cash at Closing, plus or minus the net amount of credits in favor of Buyer and credits in favor of Seller as provided for in this Agreement. 2.2 Purchase of Retail Inventories. The Purchase Price set forth in Section 2.1 does not include the purchase of the Retail Inventories. Seller agrees to sell the Pro Shop Inventory, Food Inventory and Liquor Inventory to Buyer, as the same may exist as of the close of business on the last business day preceding the Closing Date, at a price equal to Seller's cost as reasonably determined by Seller from its books and records, in accordance with the following procedures: (a) Seller will conduct a final inventory survey of its Pro Shop Inventory, Food Inventory and Liquor Inventory and, in connection therewith, shall • prepare and deliver a report containing a reasonably detailed listing of each such Retail Inventory, including quantities, unit cost pricing and total inventory cost valuation, as of the close of business on the last business day prior to the Closing Date. Seller shall exclude from the Retail Inventories, by removal or sale prior to Closing, any and all items that are - 6 - 2542185 2.3 Purchase Price Allocation. For purposes of returns or information reports filed with Federal, state and local taxing authorities, Seller and Buyer agree to allocate the purchase price to the categories of assets being sold as set forth on Exhibit E. 3. Warranties and Representations of Seller. 3.1 Warranties and Representations. Seller does hereby make the following warranties and representations to Buyer, which warranties and representations shall survive for twelve (12) months after the Closing (except for Seller's warranties of title, which shall survive for the period of the applicable statute of limitations): 3.1.1 Organization; Continued Existence. Seller is a limited liability company duly organized and validly existing, and has filed all reports required to be filed to date to maintain its existence under the laws of the State of Indiana. Seller has all requisite power and authority to own and operate its properties, to carry on its business as now being conducted, and to enter into this Agreement and perform its obligations hereunder. 3.1.2 Authority. Seller has taken all necessary actions to approve this Agreement and the performance of its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of Seller. 3.1.3 Title to Assets. At Closing, Seller will convey to Buyer good and marketable title to the Assets, subject to no mortgage, lien, pledge, security interest, lease, charge, claim, encumbrance, or conditional sale or title retention agreement, taxation charge, or any other type of restriction, except for the lien of real and personal property taxes, the Equipment Leases, and the Permitted Exceptions determined pursuant to Section 6.3C. 3.1.4 Violation of Other Instrments. Neither the execution of, nor the consummation of the transactions contemplated by, this Agreement does or will constitute a breach or default (or an occurrence which by notice or lapse of time or both, would constitute a breach or default) under any contract or commitment to which Seller is a party or by which Seller or its properties or assets are bound, or does or will result in the creation or imposition of any lien, encumbrance, charge, equity or restriction of any nature whatsoever in favor of any third party upon any of the Assets, or does or will result in a breach of any term or provision of any trust indenture of Seller. 3.1.5 Adverse Judgments. Seller is not a party to any judgment, order, writ, injunction, decree, nile or regulation which materially and adversely affects or, may in the future materially and adversely affect the business operations, prospects, properties, assets or condition, financial or otherwise, of Seller as related to the operation of the Golf Business, provided that Buyer acknowledges receipt of a copy of a certain Agreed Order dated June 11, 2006, between Seller and the Indiana Department of Environmental Management, in IDEM Case No. 2003- 15599-S (the "IDEM Settlement Agreement"), and Buyer understands and agrees (a) that it will be bound by the obligations of Seller thereunder (to the extent not paid or performed by Seller prior to Closing), (b) that the Conservation Easement contemplated thereby will run with the land as a permanent encumbrance on the Real Estate, and (c) that the Conservation Easement constitutes a Permitted Exception pursuant to Section 6.3C. - 8 - 254218 5 damaged, stale, spoiled, out-of-date, obsolete or otherwise not reasonably salable at ordinary retail prices. Seller shall promptly deliver such final inventory report to Buyer including the cost valuation for each such Retail Inventory class, which amounts shall be added to the Purchase Price to be paid by Buyer in cash at Closing (the "Retail Inventories Price Adjustment") in exchange for a bill of sale, executed by Seller, conveying each such class of Retail Inventory to Buyer; provided, however, that Seller and Buyer shall comply with all applicable laws and regulations with respect to the sale of alcoholic beverage inventory and, if and to the extent necessary, shall modify the foregoing procedure with respect thereto. (b) Seller will certify at closing that its determination as to its cost valuation of the Retail Inventories is based on its actual costs as reflected in its books and records, determined in accordance with generally accepted inventory accounting principles applied on a consistent basis. Seller makes and will make no other representation or warranty of any kind with respect to the Retail Inventories, except for its title thereto and right to convey the same. Without limiting the foregoing, Seller will convey the Retail Inventories "as is" and makes no and will not make any representation or warranty as to the sufficiency, merchantability, fitness or retail value thereof, or for any other purpose whatsoever. (c) Notwithstanding anything to the contrary set forth herein, the net cash amount payable to Seller at Closing after applying all credits and adjustments provided for herein, including the Retail Inventories Price Adjustment shall not exceed Two Million Nine Hundred Ninety-Nine Thousand Nine Hundred Ninety-Nine Dollars ($2,999,999.00). As of June 30, 2006, Seller's Pro Shop Inventory (valued at cost) was approximately $34,000.00 (which amount declines as inventory is sold and not restocked in the ordinary course during each season), and its normal stock of Food and Liquor Inventories (valued at cost) is approximately $1,500.00. In order to insure that the Retail Inventories Price Adjustment will be limited to an amount such that net cash payable to Seller at Closing will not exceed said amount, Seller and Buyer shall review the status of the Retail Inventories following the August end-of- month inventory and at least five (5) business days prior to the Closing, and, should it appear that the Retail Inventories Price Adjustment might cause the net cash payable at Closing to exceed said amount, Buyer shall select and Seller shall remove, sell or otherwise dispose of(by clearance sale, bulk sale or in whatever manner Seller determines in its sole discretion), prior to Closing, a sufficient quantity of inventory items so that the Retail Inventories Price Adjustment will not cause the cash sale price to exceed Two Million Nine Hundred Ninety-Nine Thousand Nine Hundred Ninety-Nine Dollars ($2,999,999.00). - 7 - 254218_5 3.1.6 Disputes and Litigation. There is no claim, litigation, proceeding or governmental investigation pending, or to the best of the Seller's knowledge, threatened against or affecting Seller, the outcome of which, individually or in the aggregate, if adversely determined, would have a material adverse effect upon the financial condition of Seller or upon the Golf Business or would interfere with the consummation of the transactions contemplated hereby; except as described in Section 3.1.5, Seller is not subject to any injunction, order or decree restricting the conduct of its business nor has any governmental agency investigated or questioned its method of operating the Golf Business. To the best of Seller's knowledge, no claim has been made that Seller currently violates any federal, state or local law, ordinance, rule or regulation which might materially affect the business, properties or assets of Seller as related to the Golf Business. To the best of Seller's knowledge, no valid basis for any successful action or claim of the nature referred to above exists. 3.1.7 Compliance with Law. To the best of Seller's knowledge, Seller is conducting and/or operating the Golf Business in accordance with all applicable laws and other requirements of governmental authorities. 3.1.8 Governmental and Other Consents. No consent, approval, or authorization of, or designation, declaration or filing with any governmental authority or other person or entity is required on the part of Seller in connection with the execution or delivery of this Agreement or the consummation of the transactions contemplated hereby. 3.1.9 Permits and Licenses. To the best of Seller's knowledge, Seller has all permits, licenses (including, but not limited to, zoning permits or variances, parking permits, sewer permits) and environmental registrations required in connection with the Golf Business as presently operated. 3.1.10 Employees. Exhibit F, attached hereto and made a part hereof, contains (a) a list of the names and current compensation, vacation plans, and benefits paid to Seller's employees in the Golf Business and a copy of(a) each collective bargaining agreement or other labor agreement, if any, to which the Seller is a party or by which the Seller is bound or pursuant to which Seller is operating in connection with such business, and (b) each written employment, profit sharing, deferred compensation, bonus, stock option, stock purchase, pension, retainer, consultant, retirement, welfare, incentive or fringe benefit plan, if any, to which Seller is a party or by which it is bound with respect to such employees. To the best of Seller's knowledge, it (i) is in substantial compliance with all federal and state laws respecting employment, wages and hours, (ii) is not engaged in any unfair labor practices. There is no unfair labor practice complaint filed against the Seller with, or to the best of the Seller's knowledge threatened to be filed against it with, or by the National Labor Relations Board, the United States Equal Employment Opportunity Commission, the Wage and Hour Division of the Fair Labor Standard Agency or any other governmental agencies. Except as set forth in Section 3.1.5, Seller has received no written notice from any governmental agency alleging violation of any federal, state or local laws respecting occupational safety and health standards, fire prevention regulations, sewer regulations or environmental regulations and hazardous waste disposal regulations. 3.1.11 ER1SA. Seller does not sponsor or contribute to, or have a contract or other obligation to contribute to (nor has Seller in the preceding 60 calendar months sponsored or - 9 - 254218_5 • contributed to, or contracted to or otherwise contributed to) (a) any defined benefit pension plan, as defined in and subject to Title IV of the Employee Retirement Income Security Act of 1984, as amended, or (b) any multi-employer pension plan, as defined in the Multi-employer Employee Pension Plan Amendment Act of 1980, as amended, which is subject to the withdrawal and partial withdrawal liability provisions thereof with respect to the Golf Business. 3.1.12 Full Disclosure. To the best of Sellers knowledge, the representations and warranties made by Seller in this Agreement, including Exhibit C, and those to be made in certifications to be furnished to Buyer pursuant to this Agreement, do not contain or will not contain any intentionally false or misleading statement of a material fact, and do not or will not intentionally omit to state a material fact necessary to make the statements contained herein or therein not misleading. 3.2 Buyer's Knowledge. Notwithstanding anything to the contrary set forth above, if prior to the Closing Buyer has or obtains actual knowledge that any of Seller's warranties or representations set forth above is untrue in any respect, and Buyer nevertheless proceeds with the Closing, then the breach by Seller of such warranties, representations or certifications as to which Buyer shall have such knowledge shall be waived by Buyer and Seller shall have no liability to Buyer or its successors or assigns in respect thereof Without limiting the foregoing, the representations and warranties of Seller in Sections 3.1.7, 3.1.8 and 3.1.9 shall not be construed to cover any law, ordinance, or requirement of, any consent, approval, or authorization of, or designation, declaration or filing with, or any permit, license, or registration with, the City of Carmel, Indiana, or any agency, department, council, board, commission, officer, officeholder, administrator, or other representative or governmental entity affiliated with the City of Carmel, hndiana, as to which Seller makes no representation or warranty whatsoever, and Buyer acknowledges and agrees that it shall rely solely upon its own knowledge, investigation and records. 3.3 Seller's Knowledge. Whenever a representation or warranty is made in this Agreement on the basis of Seller's knowledge or to the best of Seller's knowledge or words to that effect, such representation or warranty is made with the exclusion of any facts disclosed to or otherwise actually known by Buyer on or prior to the Closing Date, and is made solely on the basis of the actual, as distinguished from implied, imputed or constructive, knowledge of Ralph Little or Steve Hulce on the date such representation or warranty is made, without independent or further inquiry or investigation of Seller. 4. Warranties and Representations of Buyer. Buyer does hereby make the following warranties and representations to the Seller, which warranties and representations shall survive for six (6) months after the Closing. 4.1 Organization and Continued Existence. Buyer is a municipality and validly existing under the laws of the State of Indiana with all requisite power and authority to own, operate and lease its properties, to carry on its governmental functions and other business as now being conducted, and to enter into this Agreement and perform its obligations hereunder. - 10 - 254218_5 4.2 Authority. Buyer has taken all necessary action to approve this Agreement and the performance of its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of Buyer. 4.3 Violation of Other Instruments. Neither the execution of, nor the consummation of the transactions contemplated by this Agreement does or will constitute a breach or default (or an occurrence which by notice or lapse of time or both, would constitute a breach or default) under any contract or commitment to which Buyer is a party or by which it or its properties or assets are bound, or does or will result in the creation or imposition of any lien, encumbrance, charge, equity or restriction of any nature whatsoever in favor of any third party upon any of the properties of Buyer, or does or will result in a breach of any term or provision of its governing laws, ordinances, regulations, resolutions, orders, or procedures. 4.4 Governmental and Other Consents. No consent, approval or authorization of or designation or declaration with any governmental authority or other persons or entities on the part of Buyer is required in connection with the execution or delivery of this Agreement or the consummation of the transactions contemplated hereby, except those which Buyer has enacted, adopted, issued or obtained. 4.5 Disputes and Litigation. There is no claim, litigation, proceeding or governmental investigation pending, or to the best of Buyer's knowledge, threatened against or affecting Buyer, the outcome of which, individually or in the aggregate, if adversely determined, would have a material adverse affect upon the financial condition of Buyer or upon the conduct • of its business or would interfere with the consummation of the transactions contemplated hereby. Buyer is not subject to any injunction, order or decree restricting the conduct of its business nor has any governmental agency, to the best or Buyer's knowledge, investigated or questioned its methods of business. To the best of Buyer's knowledge, no claim has been made that it currently violates any federal, state or local law, ordinance, rule or regulation which might materially affect the business, properties or assets of it. To the best of Buyer's knowledge, no valid basis for any successful action or claim of the nature referred to in this Section exists. 4.6 Adverse Judgments. Buyer is not a party to any judgment, order, writ, injunction, decree, rule or regulation which materially and adversely affects or, so far as Buyer can now foresee, may in the future materially and adversely affect the business operations, prospects, properties, assets or condition, financial or otherwise, of it. 4.7 Full Disclosure. The representations and warranties made by Buyer in this Agreement, and those to be made in the certifications to be furnished to Seller pursuant to this Agreement, do not contain or will not contain any intentionally false or misleading statement of a material fact, and do not or will not intentionally omit to state a material fact necessary to make the statements contained herein or therein not misleading. 5. The Closing. 5.1 Time and Place. The consummation of the transactions contemplated by this Agreement (the "Closing") shall occur at 1:00 p.m. local time on October 3, 2006 (the "Closing Date") at the offices of Chicago Title Insurance Company (the "Title Company"), - 11 - 254218_5 11171 North Meridian Street, #160, Carmel 46032, Indiana or at such earlier time, date and place as the parties hereto may agree. 5.2 Seller's Deliveries at the Closing. At the Closing, the Seller shall execute and deliver to Buyer: (a) special warranty deed conveying marketable title to the Real Estate to Buyer, subject only to the Permitted Exceptions, in a form mutually satisfactory to Buyer and Seller and their respective counsel; (b) Vendor's affidavit in a form requested by the title company and mutually satisfactory to Buyer and Seller and their respective counsel; (c) non foreign affidavit in a form mutually satisfactory to Buyer and Seller and their respective counsel; (d) Real Estate Disclosure Form; (d) Title Commitment provided by the title company including Permitted Exceptions that will appear in the final Title Policy in the appropriate amount and showing marketable fee simple title; (f) a "disclosure document" if required (and, if so, in the form required) to be delivered with respect to the Real Estate under the Indiana Responsible Property Transfer Law; (g) a bill of sale in form mutually satisfactory to Buyer and Seller and their respective counsel, conveying the Assets other than the Retail Inventories, the Real Estate and Improvements; (h) one or more bills of sale in form mutually satisfactory to Buyer and Seller and their respective counsel, conveying each class of Retail Inventory that Buyer elects to purchase pursuant to Section 2.2, (i) an assignment and assumption of the Equipment Leases in form mutually satisfactory to Buyer and Seller and their respective counsel, under which Seller shall assign to Buyer, and Buyer shall accept and assume, all of Seller's right, title and interest in and to each item subject to any Equipment Lease, and all of Seller's obligations thereunder to be paid or performed after the Closing; (j) a certified copy of the written consent or resolution of Seller's Members authorizing this sale; (k) a consent to transfer and such other documents as may be required by the Indiana Alcohol and Tobacco Commission in connection with an application for transfer of the Liquor Permits to Buyer; and (I) such other certificates, documents and instruments including instruments of assignment and conveyance and covenant not to compete, as Buyer or the Title Company shall reasonably deem necessary or appropriate to vest title to, the Assets in Buyer and to consummate the transactions contemplated hereby. Buyer acknowledges that Seller's bill(s) of sale and special warranty deed will provide that Buyer is purchasing the assets described in such instruments on an AS IS WHERE IS basis, without wan-anties except as to Seller's title. 5.3 Buyer's Deliveries at the Closing. At the Closing, Buyer shall deliver to Seller the purchase price in cash via wire transfers or other immediately available funds, and shall execute and deliver to Seller (a) the assignment and assumption of the Equipment Leases; (b) Real Estate Disclosure Form; (c) a receipt for the "disclosure document" if required (and, if so, in the form required) to be delivered with respect to the Real Estate under the Indiana Responsible Property Transfer Law; (d) a transfer of permit application and such other documents as may be required by the Indiana Alcohol and Tobacco Commission in connection with an application for transfer of the Liquor Permits to Buyer; (e) such other certificates, documents and instruments as Seller shall reasonably deem necessary or appropriate to effect and evidence the transfer to Buyer of the obligations and liabilities accruing after Closing and associated with the transferred Assets, and to consummate the transactions contemplated hereby. 5.4 Operations on the Closing Date. The revenues generated from the operation of the Golf Business on the Closing Date shall belong to Buyer. Buyer shall be - 12 - 254218_5 responsible for all expenses and liabilities, including but not limited to wages and salaries, relating to the Golf Business or the transferred Assets and accruing on or after the Closing Date. 5.5 Pro-Rated Taxes and Assessments. 5.5.1 Personal Property Taxes. Seller shall pay its pro rata share of the total business tangible personal property and inventory tax installments due and payable (including any previously paid) in the year in which Closing occurs, determined on the basis of the number of days in such year prior to the Closing Date; and Buyer shall be responsible for the balance of such tax installments due and payable (including any previously paid) in the year of Closing and all such taxes thereafter due and payable. Seller also shall pay any unpaid personal property and inventory taxes, including any penalty or interest, with respect to prior years. 5.5.2 Real Property Taxes and Assessments. Seller shall pay all real property taxes and assessments for public improvements, if any, due and payable with respect to the Real Estate and Improvements prior to the calendar year in which Closing occurs, and its pro rata share of the total real estate taxes and assessments due and payable (including any installments previously paid) in the year in which Closing occurs determined on the basis of the number of days in such year prior to the Closing Date; and Buyer shall be responsible for the balance of such total taxes and assessments due and payable (including any installments previously paid) in the year of Closing, and all taxes and assessments thereafter due and payable. 5.5.3. Credit at Closing. If any taxes or assessments allocable to Seller pursuant to this Section 5.5 are not yet due and payable as of the Closing Date, such taxes and assessments shall be credited against the Purchase Price at Closing and paid by Buyer or the Title Company thereafter, and Seller shall have no further liability with respect thereto. 5.5.4 Tax Rate. In calculating the pro-ration of or any amount to be credited for the real and personal property or inventory taxes, the most recent tax rate shall be utilized to estimate the taxes for Closing purposes if the applicable tax rate has not been established; and such estimate shall be final, notwithstanding whether the actual tax rate is higher or lower than that utilized at Closing. 5.6 Proration of Expenses. 5.6.1 Prepayments; Periodic Payments. As to any and all expenses and liabilities of the Golf Business routinely or otherwise paid in advance or in arrears for goods or services (including but not limited to rental or financing payments under Equipment Leases, security or alarm services, and leased employee charges, if any) based on a weekly, monthly or any other period of time that spans the Closing Date and includes one or more days before or after the Closing Date, the parties shall prorate the amounts so prepaid (for which Seller shall be credited) or paid in arrears (based on reasonably determined calculations or estimates) of the amounts that will be due and payable after Closing attributable to goods or services used or consumed prior to the Closing Date (for which Buyer shall be credited). 5.6.2. Utility Charges. Seller shall use its best efforts and Buyer shall cooperate in order to cause each utility company providing services to the Golf Business to compute their charges and Seller shall cause payment for such utility bills to be made to such utility company - 13 - 254218_5 immediately upon receipt of invoices therefore. Buyer shall cause all utility accounts to be transferred to its name as of 12:01 a.m. of the day of Closing. 5.7 Transaction Costs and Expenses. 5.7.1 Buyer's Responsibility. Buyer shall pay the following costs and expenses associated with this Agreement and the Closing of the transaction contemplated hereby: (a) the fees and disbursements of its counsel, inspecting architect and engineer, environmental consultants and other consultants and agents, if any; (h) any and all escrow or Closing fees charged by the Title Company; (c) any and all sales or use taxes relating to the transfer of Assets to Buyer, if any; (d) the premium, title search fees, commitment fees, and other charges or costs for any title insurance policy, including endorsements or extended coverage, issued in connection with this Agreement or the transaction contemplated hereby; (e) any and all fees, expenses and other charges, including but not limited to application or transfer fees charged by Alcohol and Tobacco Commission and fees and expenses of any consultants or attorneys retained by Buyer or Seller in connection with of the transfer of the Liquor Permits; (0 the cost of the Survey; (g) any and all expenses pertaining to any financing obtained by Buyer; (h) any and all recording fees; and (i) any and all expense(s) incurred by Buyer or its representative(s) in inspecting or evaluating the Assets or Closing this transaction. 5.7.2 Seller's Responsibility. Seller shall pay the fees and disbursements of its counsel and of any accountants, consultants or other representatives engaged by Seller in connection with this Agreement and the Closing of the transaction contemplated hereby. 6. Conditions Precedent to Obligation of Buyer to Close. The obligation of Buyer to pay the Purchase Price hereunder shall be subject to the following conditions precedent, the nonoccurrence of any one or more of which, unless waived by it, shall relieve it from the obligation to close the transaction contemplated by this Agreement: 6.1 Closing Documents. Seller shall deliver at or prior to Closing all documents required to be delivered by Seller in accordance with the requirements set forth in Section 5.2. 6.2 General Obligations. (a) As of the Closing Date, Seller shall not be in material default of any obligation required to be performed by Seller prior to Closing (and shall have tendered - 14 - 254218_5 performance of obligations required to be performed at Closing) including, without limitation, all obligations imposed by the covenants in Section 7 to be performed or observed at or prior to the Closing; (b) No action or proceeding shall have been brought or threatened to prevent, or to seek damages by reason of, the execution and delivery of this Agreement or the consummation of any of the transactions contemplated hereby; no governmental authority (other than the City of Carmel or any council, board, commission, agency, department, officer, administrator, or other representative or governmental entity affiliated with the City of Carmel, Indiana) shall have claimed that any transaction contemplated hereby constitutes a violation of any law, rule or regulation, or gives rise to liability on the part of Buyer; and (c) The consent or approval of each person, entity and governmental authority whose consent or approval is required in connection with this Agreement and/or the transactions contemplated thereby shall have been obtained, provided that no termination shall be allowed by reason of this condition after (and this condition shall be deemed satisfied or waived as of 11 :59 PM on) September 18, 2006, as to any and all consents, approvals and other required actions of any kind or nature whatsoever of, from or by the City of Cannel or any council, board, commission, agency, department, officer, administrator, or other representative or governmental entity affiliated with the City of Carmel, Indiana. Buyer shall be entitled to extend the period for satisfaction of this condition to October 2, 2006, by written notice to Seller given on or prior to September 18, 2006. 6.3 Real Estate Contingencies. A. Title Commitment: A commitment for title insurance for the Real Estate (the "Title Commitment") issued by the Title Company showing marketable title in Seller's name shall be ordered by Buyer promptly upon the Effective Date and shall be delivered to Buyer within 15 days after the Effective Date. At Buyer's request, legible copies of all recorded instruments affecting the Real Estate or recited as exceptions in the Commitment shall also be delivered. Buyer shall be solely responsible for the timely ordering and receipt of the Title Commitment and the payment of all title insurance expenses. B. Survey: Seller shall provide Buyer with a complete copy of the latest survey in Seller's possession relating to the Real Estate. Buyer, at its expense, shall update and obtain such other modifications or revisions of such survey as may be necessary to comply with Buyer's and the Title Company's requirements, within twenty (20) days after the Effective Date. Such updated and modified survey (the "Survey") shall be prepared by a licensed Indiana surveyor selected or approved by Buyer, shall comply with the ALTA/ACSM Minimum Standard Detail Requirements for Indiana Land Title surveys, including optional such requirements as may be required by the Title Company for deletion of the preprinted standard exceptions, shall reflect whether the Real Estate is located in a designated flood zone area and shall be certified to Buyer, Seller and the Title Company; C. Title and Survey Approval: If Buyer has an objection to items disclosed in the Commitment or the survey, Buyer shall make written objections to Seller on or before the later of (i) the date ten (10) days after receipt of both the Commitment and survey, or - 15 - 254218_5 (ii) September 15, 2006. Upon the expiration of such period, any item not objected to by Buyer or subsequently approved by Buyer in writing shall be deemed a permitted exception ("Permitted Exception"). If Buyer makes objections, Seller shall have ten (10) days from the date the objections are made to cure the same, and the Closing date shall be extended, if necessary. Seller agrees to utilize its best efforts and reasonable diligence to cure any objections, but only to the extent necessary to convey marketable title. If the objections are not satisfied within the time period, Buyer may either terminate this Agreement or waive the unsatisfied objections and close the transaction; D. Inspections: On or before September 18, 2006, Buyer shall have determined that the Real Estate and the Improvements have no unacceptable, adverse environmental or physical condition as provided below: (I) Environmental Assessment: A Phase I environmental site assessment ("Phase 1") on the Real Estate shall be ordered promptly upon acceptance of this Agreement at Buyer's expense from a reputable, qualified engineer, acceptable to Buyer. The Phase I shall be conducted in accordance with ASTM standards unless otherwise agreed and may also include at Buyer's option the following matters: (a) an investigation for the presence of asbestos, radon, lead or poly chlorinated biphenyls (PCBs) on the Real Estate ; and/or (b) an investigation to determine if the Real Estate is located in any regulated or protected area under the jurisdiction of the U.S. Army Corps of Engineers, the U.S. Environmental Protection Agency, the Indiana Department of Environmental Management, the Indiana Department of Natural Resources ("DNR"), the U.S. Fish and Wildlife Service or any other federal, state or local agency, provided that Buyer acknowledges that the IDEM Settlement Agreement and the Conservation Easement thereunder place designated areas of the Real Estate under the jurisdiction of IDEM and/or the DNR. If Buyer does not make a written objection to Seller as to any problem(s) revealed in the report on within ten (10) days after receipt of the report, but not later than September 18, 2006, the Real Estate shall be deemed to be acceptable. If Buyer determines that the environmental condition is unsatisfactory, Buyer may either terminate this Agreement or waive its objection and close the transaction; (2) Physical Inspections: Promptly upon acceptance of this Agreement, all physical inspections of the Real Estate and other Assets shall be ordered at Buyer's expense. Inspections shall be made by qualified inspectors or contractors, selected or approved by Buyer, with written reports delivered to Buyer. Inspections may include but are not limited to the following: heating, cooling, electrical, plumbing, roof, walls, ceilings, floors, foundation, basement, crawl space, water storm and waste sewer, well/septic, geotechnical, irrigation system, turf conditions, and drainage conditions. If Buyer, in its reasonable discretion, believes that an inspection report reveals a defect in or with the Real Estate and the Improvements, Buyer shall report such defect in writing to Seller within ten (10) days of receipt of inspection report, but not later than September 18, 2006. If Buyer does not make a written objection to any problem(s) - 16 - 254218_5 revealed in the report(s) within such time period, the Real Estate shall be deemed acceptable to Buyer. Seller shall have a reasonable period of time, not to exceed ten (10) days, to repair any such major defect to Buyer's reasonable satisfaction and the Closing date shall be extended, if necessary. If Seller fails or refuses to repair, Buyer may either terminate this Agreement or waive its objection and close the transaction without any reduction in the Purchase Price. Buyer and its agents shall have the right to enter upon the Real Estate upon reasonable advance notice and make all inspections provided for herein. Buyer shall restore any damage to the Real Estate resulting from the entry of Buyer or its agents and shall indemnify, defend and hold harmless Seller as to any injury to persons or damage to their property resulting from the negligence of Buyer or its agents in conducting their activities on the Real Property; E. Financial Statements: Seller shall provide to Buyer, within five (5) days after the Effective Date, (a) Seller's budget for the operation of the Golf Business for calendar year 2006, (b) a statement of income/loss from operations in reasonable detail for the Golf Business for calendar year 2006 year to date (it being understood that Seller's ownership period prior to 2006 was concentrated on rehabilitation, upgrading and improving the golf course and Golf Business, and did not fairly reflect stabilized business operations), (c) a statement of actual expenses of ordinary operations by budget category for calendar year 2005, and (d) lists of annual golf members, season cardholders, men's and women's golf club members, and other regular patrons, if any, for 2005 and 2006, as applicable. Such budgets and financial statements shall be prepared on a consistent basis so as to fairly and reasonably present the financial results of operations of the Golf Business for the periods presented, and shall be certified as such by an officer of Seller. If Buyer (in its sole discretion) is not satisfied with the financial results shown by such financial statements, or any other aspect relating to the Golf Business, it may terminate this Agreement by written notice to Seller on or before thirty (30) days after the Effective Date. F. Business Valuation/Appraisal: Buyer may elect, at its sole expense, to obtain a business valuation of the Golf Business as a going concern. Likewise, Buyer may obtain an appraisal of the Real Estate. Any such valuation or appraisal shall be based upon the financial statements provided by Seller under Section 6.3.E and such market or industry data as may be available from sources other than Seller. If Buyer, at its sole discretion, is not satisfied with such valuation or appraisal, it may terminate this Agreement by written notice to Seller on or before (and this condition shall be deemed satisfied or waived if such notice is not given by 11:59 PM on) September 18, 2006. Buyer shall be entitled to extend the period for any satisfaction of this condition to October 2, 2006, by written notice to Seller given on or before September 18, 2006. 7. Post Closing Covenants. 7.1 Noncompetition. Seller and its shareholders, members and managers hereby covenant and agree that they will not, either directly or indirectly, either for their own account or as an investor (except as a holder of less than fifty percent (50%) of the outstanding capital stock of a corporation or the membership or beneficial interests of a limited liability company or other entity), engage in the business of operating a golf course located within five - 17 - 254218_5 (5) miles of the Real Estate. Such covenant shall remain in full force and effect for a period of three (3) years after the date of Closing. 7.2 Remedies. The parties hereto hereby agree: (a) that in the event the Seller or its members or managers shall breach or threaten breach of the covenants of Section 7.1 hereof, the other party hereto shall suffer an immediate irreparable injury; that the damages to such other party as a result of such breach or threatened breach shall be difficult if not impossible to measure in monetary terms; (b) that upon such breach or threatened breach, such other party shall be without an adequate remedy at law; and (c) that such other party shall be entitled to injunctive and other equitable relief including, but not limited to, specific performance as a result of such breach or threatened breach and attorney fees. A separate noncompetition agreement shall evidence this obligation. 7.3 Indemnification by Seller. Without conferring any third party rights, Seller agrees to indemnify and hold the Buyer, its successors and assigns, harmless from and against any loss, claim, damage, liability, or expense (including court costs, expert witness fees, interest, and counsel's fees) resulting to the Buyer from any breach of the representations, warranties, covenants, agreements, or undertakings of the Seller contained in this Agreement. Without limiting the generality of the foregoing, Seller agrees to indemnify and hold Buyer, its successors and assigns, harmless from the following: (a) those liabilities not assumed by Buyer, including those described in Section 1.2; (b) any liability for medical, disability, life insurance or workmen's compensation claims which arose prior to the Closing Date and in addition to such claims any premiums payable prior to the Closing Date, or any liability with respect to such premiums; and (c) any claims emanating from Seller's ownership of the Assets which arise from Seller's actions or inactions taken prior to the date of Closing. 7.4 Indemnification by Buyer. Without conferring any third party rights, Buyer agrees to indemnify and hold the Seller, its successors and assigns, harmless from and against any loss, claim, damage, liability, or expense (including court costs, expert witness fees, interest, and counsel's fees) resulting to the Seller from any breach of the representations, warranties, covenants, agreements, or undertakings of the Buyer contained in this Agreement. Without limiting the generality of the foregoing, Buyer agrees to indemnify and hold Buyer, its successors and assigns, harmless from the following: (a) those liabilities assumed by Buyer, including those under the Equipment Leases and as described in Section 1.3; (b) any liability for medical, disability, life insurance or workmen's _ 18 _ 254218_5 compensation claims which arises on or after the Closing Date and in addition to such claims any premiums payable on or after the Closing Date, or any liability with respect to such premiums; and (c) any claims emanating from the Golf Business or Assets which arise on or after the Closing Date, 7.5 Brokerage. Neither Seller nor Buyer have retained or otherwise obligated themselves to pay any finder's fee or broker's commission in connection with this Agreement. Each party shall indemnify, defend and hold the other harmless from any liability or claim for any such fee or commission resulting from any act or agreement or alleged act or agreement of the indemnifying party, its employees, agents or representatives. 7.6 Cooperation. The Seller will cooperate reasonably with Buyer in the transition of ownership of the Assets and the Golf Business. Such cooperation shall include but shall not be limited to the preparation and signing of joint and mutually acceptable forms of letter and press release or other public announcement for the purposes of, among others, informing suppliers, employees, customers and the general public of the change in ownership and encouraging them to continue to transact business with Buyer. • 7.7 Transfer of Liquor License(s). Seller shall control the timing of Buyer's application(s) to the Indiana Alcohol and Tobacco Commission for transfer of the Liquor Permits. In no event shall Buyer apply to or otherwise communicate with the Commission concerning this transaction until the expiration or waiver by Buyer of all conditions precedent or contingencies with respect to its obligations under this Agreement. Thereafter, Buyer and Seller shall cooperate in the transfer process, including, if necessary, Seller's authorization to Buyer to sell alcoholic beverages under a management agreement between Seller and Buyer, provided Buyer employs Seller's current manager post-Closing as the on-site manager responsible under the management agreement, until Buyer is able to complete the transfer of the Liquor Permits. 7.8 Manager. Buyer will retain the services of Seller's manager through December 31, 2006, provided that if Buyer so elects, it may terminate such manager prior to said date upon thirty (30) days prior written notice to Seller, which notice shall be accompanied by a payment to Seller of a Five Thousand Dollars ($5,000.00) termination fee, which payment shall be a condition to the effectiveness of such notice. 8. Covenants of Buyer. Buyer agrees to observe the following covenants between the date hereof and the Closing: 8.1 Further Assurances. Buyer shall do and perform such further acts and deeds and shall execute and deliver such other documents, instruments and certificates as the Seller shall reasonably require to consummate the transactions contemplated by this Agreement; 8.2 Examination of Financial Statements. Buyer and/or its certified public accountants shall promptly examine Seller's financial statements provided to Buyer pursuant to Section 6.3.E above. - 19 - 254218_5 9. Mutual Covenants. 9.1 Mutual Efforts. Seller and Buyer each convent to use their best efforts to cause the sale contemplated by this Agreement to be consummated, and, without limiting the generality of the foregoing, to obtain all consents and authorizations of third parties and to make all filings with and give all notices to third parties which may be necessary or reasonably required in order to complete the transactions contemplated hereby. 9.2 Confidentiality. Neither party shall make public disclosure of the existence of this Agreement or terms of this transaction without the prior written consent of the other unless legally compelled to do so (by deposition, interrogatory, request for documents, subpoena, civil investigation or demand or similar process or by law). Buyer shall maintain as confidential all information provided by Seller or obtained by Buyer with respect to the Golf Business, the Real Estate and the other Assets, except that Buyer may (a) discuss the transaction in confidence with its officers, attorneys, lenders, representatives, agents, and contractors, provided they agree to make no public disclosure thereof except as provided herein, and (b) upon five (5) business days' prior written notice to Seller (but in no event later than one business day prior to the date on which Buyer is required by applicable law to post any applicable public meeting agenda), disclose the terms hereof as and to the extent required by any Indiana "open door" or similar law applicable to any public meeting in connection with any council, commission, committee, board or other agency action or approval necessary to authorize Buyer to execute this Agreement and carry out the transaction contemplated hereby. 10. Covenants of the Seller. The Seller agrees to observe the following covenants between the date hereof and the Closing: 10.1 Transactions out of Ordinary Course of Business. Except with the prior written consent of Buyer, Seller will not enter into any transaction outside the ordinary course of operation of the Golf Business as heretofore conducted by Seller, except as contemplated by the IDEM Settlement Agreement and the transactions described in Section 1.5. 10.2 Maintenance of Assets. Seller will maintain the Improvements and the Equipment used in the Golf Business in their current state of repair, order and condition, reasonable wear excepted, and will maintain insurance upon all of such properties in such amounts and of such kinds comparable to that in effect on the date of this Agreement. 10.3 Access to Properties. Seller will give to Buyer and its representatives, agents and contractors reasonable access during normal business hours to the Real Estate, Improvements, Equipment and other Assets as may be necessary or appropriate for Buyer to complete its inspections, examinations and investigations pursuant to Section 6.3. 10.4 Employment Agreements. Seller will not enter into any new employment, consulting, bonus, incentive, profit-sharing, retirement, pension, group insurance, death benefit or other fringe benefit, deferred compensation, post-termination or employee trust agreement or obligation which would require payments by Buyer after Closing for a period longer than a regular pay period with respect to the employees of the Golf Business. - 20 - 254218_5 10.5 Employees. Seller shall not attempt to hire or employ, in any other business or other location owned by Seller, any person currently employed by Seller in the Golf Business who Buyer elects to retain as an employee thereof after Closing, provided that this prohibition shall not apply to Seller's current manager as to any offer of employment that would commence after December 31, 2006. 10.6 Further Assurances. Seller shall do and perform such further acts and deeds and shall execute and deliver such other documents, instruments and certificates as Buyer shall reasonably require to consummate the transactions contemplated by this Agreement. 11. Miscellaneous. 11.1 Condemnation: Seller shall promptly notify Buyer in writing of the commencement of any condemnation proceedings against any portion of the Real Estate, excluding any such proceedings commenced or threatened by the City of Carmel or any council, commission, board, agency, department, officer, administrator, or other representative or governmental entity affiliated with the City of Carmel, Indiana. If such condemnation proceedings are commenced, Buyer, at its option, may (1) terminate this Agreement by written notice to Seller within five days after Buyer is advised of the commencement of condemnation proceedings, or (2) appear and defend in any condemnation proceedings, and any award shall, at Buyer's election, (a) become the property of Seller and reduce the Purchase Price by the same amount or (b) shall become the property of Buyer and the Purchase Price shall not be reduced. 11.2 Insurance and Risk of Loss: Through the Closing Date, Seller shall maintain its current property insurance policy or policies in effect with respect to damage by fire, casualty or other cause to the Improvements and other insurable Assets. Seller's insurance shall be canceled as of the Closing date and Buyer shall provide its own insurance thereafter. Risk of loss by damage or destruction to the Improvements and other insurable Assets prior to the closing shall be borne by Seller. In the event any material damage or destruction is not fully repaired prior to closing, Buyer, at its option, may either terminate this Agreement or elect to close the transaction, in which event Seller's right to all insurance proceeds not yet applied to repair of the damage or destruction shall be assigned in writing by Seller to Buyer at closing. 11.3 Notices. All notices, consents, demands, requests, waivers, approvals and other communications which are required or may be given hereunder shall be in writing and shall be deemed to have been duly given (a) upon delivery if delivered in person or by courier, or (b) on the 3`d business day after mailed by certified or registered first class mail, postage prepaid, addressed as follows: If to the Seller, to: Brookshire First Mortgage, LLC Attn: Ralph Little 37 Water Street PO Box 442 Mystic, CN 06355 - 21 - 254218_5 With copies to: Steven A. Hulce Geneva Capital Investments, Ltd. 316 South 7th Street Geneva, IL 60134 Rory O'Bryan Harrison R. Moberly, LLP 11611 North Meridian, Suite I50 Cannel, IN 46302 If to the Buyer, to: Carmel Redevelopment Commission Attention: With a copy to: Michael S. Walsh MICHAEL S WALSH, P.C. 11350 North Meridian Street, Suite 420 Cannel, IN 46032 or to such other person or persons at such other address or addresses as a party hereto may designate by written notice to the other party hereto. 11.4 Entire Agreement. This Agreement, together with the other writings delivered in connection herewith, embodies the entire agreement and understandings of the parties hereto with respect to the subject matter hereof and superseded any prior agreements and understandings between the parties hereto. The Agreement may be amended or terminated at any time only by a writing executed by all of the parties hereto. 11.5 Applicable Law. This Agreement has been substantially negotiated in the State of Indiana. The law of the State of Indiana shall govern the validity, interpretation and due performance of this Agreement. 11.6 Parties Bound. This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their respective successors and assigns. Buyer shall not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Seller, and any such attempted assignment by Buyer shall be void, provided that Buyer may assign this Agreement or its rights hereunder to any municipal or governmental agency, department, corporation or other instrumentality or entity owned or controlled, directly or indirectly, by the City of Cannel, Indiana. No assignment by Buyer shall relieve Buyer from any of its obligations or liabilities under this Agreement. - 22 - 2542185 • 11.7 Headings. The headings of the Sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. 11.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one agreement binding on the parties hereto, notwithstanding that all the parties have not signed the same counterpart. 11.9 Default. If Buyer breaches this Agreement, Seller may seek any remedy provided by law or equity. If Seller breaches this Agreement, Buyer may seek specific performance or any other remedy provided by law or equity. • 11.10 Partial Invalidity. If any term, covenant or condition of this Agreement is held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. 11.11 Attorney's Fees. In the event that either party shall bring an action or legal proceeding for an alleged breach of any provision of this Agreement or any representation, warranty, covenant or agreement herein set forth, or to enforce, protect, determine or establish any term, covenant or provision of this Agreement or the rights hereunder of either party, the prevailing party shall be entitled to recover from the non-prevailing party, as a part of such action or proceedings, or in a separate action brought for that purpose, reasonable attorneys' fees and costs, expert witness fees and court costs as may be fixed by the court or jury. 11.12 No Recording. Neither this Agreement not any memorandum or other form of this Agreement shall be recorded in the Office of the Recorder of Hamilton County, Indiana, or otherwise filed for record in any public office. 11.13 Authorized Signatures. The persons executing this Agreement for and on behalf of Buyer and Seller each represent that they have the requisite authority to bind the entities on whose behalf they are signing. [The remainder of this page is intentionally blank.] - 23 - 254218_5 IN WITNESS WHEREOF, the parties hereto have entered into this Asset Purchase Agreement effective the date first written above, which shall be the date of execution of this Agreement by the last party to execute the Agreement(the "Effective Date"). SELLER: BUYER: BROOKSHIRE FIRST MORTGAGE, LLC CITY OF CARMEL, INDIANA, a Delaware limited liability company ON BEHALF OF THE CARMEL By Its Member and Manager, REDEVELOPMENT COMMISSION OLD SAYBROOK GOLF CAPITAL, LLC a Delaware limited liability company Its: By: Steven A. Hulce, Manager And By: Clare Holdings, LLC,Manager By: Ralph E. Little, Managing Member -24- 260847_I IN WITNESS WHEREOF, the parties hereto have entered into this Asset Purchase Agreement effective the date first written above, which shall be the date of execution of this -Agreement by the last party to execute the Agreement (the "Effective Date"). SELLER: BUYER: BROOKSHIRE FIRST MORTGAGE:LLC CITY OF CARMEL, INDIANA. a Delaware limited liability company ON BEHALF OF THE CARMEL By Its Member and Manager, REDEVELOPMENT COMMISSION OLD SAYBROOK GOLF CAPITAL, LLC a Delaware limited liability company Anger Bv..; ��� • Its: 0�/�P�CIf By: _soon 'S Steven A. Hulce, Manager And By: Clare Holdings, LLC, Manager B_v: Ralph E. Little, Managing Member _74_ _260847_1 t2 IN WITNESS WHEREOF, the parties hereto have entered into this Asset Purchase Agreement effective the date first written above, which shall be the date of execution of this Agreement by the last party to execute the Agreement(the "Effective Date"). SELLER: BUYER: BROOKSHIRE FIRST MORTGAGE, LLC CITY OF CARMEL, INDIANA, a Delaware limited liability company ON BEHALF OF THE CARMEL By Its Member and Manager, REDEVELOPMENT COMMISSION OLD SAYBROOK GOLF CAPITAL, LLC a Delaware limited liability company ja, By: iii Its: a By: Steven A. Hulce, Manager And By: Clare Holdings, LLC, Manager By: c41 a" Ralph E. Little, Managing Member -24- 260847_I EXHIBIT A (Page l of 5) Brookshire Golf Business Real Estate Legal Description Parcel 1: Part of the Southeast(Southwest, Northwest and Northeast)Quarter of Section 32,Township 18 North,Range 4 East in Hamilton County,Indiana,more particularly described as follows: Commencing at the Southeast corner of the Southeast Quarter of Section 32,Township 18 North,Range 4 East; thence North 89 degrees 46 minutes 50 seconds West(assumed bearing)on and along the South line of said Southeast Quarter 840.18 feet to the POINT OF BEGINNING;thence continue along said South line North 89 degrees 46 minutes 50 seconds West 479.39 feet to the West line of the Southeast Quarter of the Southeast Quarter of said Section 32;thence North 00 degrees 12 minutes 40 seconds West on and along the West line of said Quarter Quarter Section 305.10 feet measured(307.40 feet deed);thence North 67 degrees 24 minutes 40 seconds East 287.53 feet;thence North 00 degrees 12 minutes 40 seconds West parallel with the West line of said Quarter Quarter Section 146.58 feet;thence North 84 degrees 17 minutes 40 seconds West 267.30 feet to a point on the West line of said Quarter Quarter Section;thence North 89 degrees 44 minutes 05 seconds West parallel with the North line of said Quarter Quarter 662.19 feet to a point which is 660.00 feet South 89 degrees 43 minutes 43 seconds East of the West line of said Quarter Quarter;thence North 00 degrees 14 minutes 26 seconds West parallel with the West line of said Quarter Quarter 106.41 feet;thence North 73 degrees 18 minutes 11 seconds West 348.34 feet;thence North 00 degrees 14 minutes 26 seconds West parallel with the West line of said Quarter Quarter 2.00 feet;thence North 73 degrees 16 minutes 41 seconds West 341.61 feet to the West line of Quarter Quarter;thence North 00 degrees 14 minutes 26 seconds Weston and along aforesaid West line 687.84 feet to a point which is 1064.50 feet South 00 degrees 14 minutes 26 seconds East of the center of said Section 32;thence North 72 degrees 36 minutes 50 seconds West 476.09 feet to a point which is 924.00 feet South 00 degrees 14 minutes 26 seconds East of the North line and 453.75 feet North 89 degrees 46 minutes 37 seconds West of the East line of the Southwest Quarter of said Section 32;thence North 89 degrees 46 minutes 37 seconds West parallel with the North line of said Southwest Quarter 206.25 feet;thence North 00 degrees 14 minutes 26 seconds West parallel with the East line of said Southwest Quarter 924.00 feet to the North tine thereof;thence North 89 degrees 46 minutes 37 seconds West on and along the South line of the Northwest Quarter of said Section 32, 293.15 feet to the Southeast comerof Brookshire,Section 6-C,the plat of which is recorded in Plat Book 5,page 45,in the Office of the Recorder of Hamilton County,Indiana;thence North 07 degrees 57 minutes 43 seconds East on and along the Eastline of said subdivision, 304.85 feet to the Southeast corner of Brookshire,Section 6-B, the plat of which is recorded in Plat Book 4,pages 171 and 172 in the Office of the Recorder of Hamilton County, Indiana;thence North 07 degrees 57 minutes 43 seconds East on and along the East line of said subdivision 446.56 feet;thence North 15 degrees 01 minute 45 seconds East on and along said East line 70.06 feet to the Southeast corner of Brookshire, Section 6-A,the plat of which is recorded in Plat Book 4, page 169,in the Office of the Recorder of Hamilton County,Indiana;thence North 15 degrees 01 minute 45 seconds East on and along the East line of said subdivision,536.31 feet;thence North 20 degrees 34 minutes 48 seconds East on and along said East line 234.98 feet;thence North 08 degrees 58 minutes 11 seconds East on and along said East Tine 233.12 feet;thence North 16 degrees 16 minutes 45 seconds East on and along the East line of said subdivision, 319.71 feet;thence North 40 degrees 56 minutes 51 seconds East on and along the East line of said subdivision, 442.15 feet;thence South 89 degrees 30 minutes 17 seconds East on and along the East line of said subdivision, 174.93 feet;thence South 00 degrees 19 minutes 30 seconds West 110.00 feet;thence South 69 degrees 48 - 25 - EXHIBIT A (Page 2 of 5) Brookshire Golf Business Real Estate Legal Description minutes 30 seconds East 116.06 feet;thence South 16 degrees 26 minutes 45 seconds West 200.00 feet;thence South 73 degrees 33 minutes 15 seconds East 45.00 feet;thence North 47 degrees 01 minute 42 seconds East 220.37 feet;thence North 36 degrees 39 minutes 30 seconds East 165.00 feet to a point which is 290.00 feet South 00 degrees 19 minutes 30 seconds West of a point on the North line of the Northeast Quarter of said Section 32,which is 340.00 feet South 89 degrees 40 minutes 30 seconds East of the Northwest corner thereof; thence North 45 degrees 19 minutes 30 seconds East 176.78 feet;thence North 00 degrees 19 minutes 30 seconds East 165.00 feet to a point on the North line of the Northeast Quarter of Section 32,Township 18 North, Range 4 East which is 465.00 feet South 89 degrees 40 minutes 30 seconds East of the Northwest corner of said Northeast Quarter;thence South 89 degrees 40 minutes 30 seconds East on and along the North line of said Northeast Quarter 259.39 feet to the Northwest corner of Brookshire,First Section,the plat of which is recorded in Plat Book 3,page 108,in the Office of the Recorder of Hamilton County,Indiana;thence South 32 degrees 39 minutes 00 seconds East on and along the West line of said subdivision 217.18 feet;thence South 32 degrees 49 minutes 15 seconds West on and along the West line of said subdivision 217.27 feet;thence South 21 degrees 36 minutes 10 seconds West on and along said West line 285.20 feet;thence South 47 degrees 05 minutes 35 seconds West on and along said West line 250.09 feet;thence South 32 degrees 49 minutes 30 seconds West on and along said West line 417.41 feet;thence South 38 degrees 59 minutes 30 seconds west on and along said West line 289.36 feet to the Northernmost corner in the rear line of Lot 74 in Brookshire,Third Section,the plat of which is recorded in Plat Book 3,page 145,in the Office of the Recorder of Hamilton County,Indiana;thence South 80 degrees 39 minutes 25 seconds Weston and along the Northerly line of said subdivision,185.23 feet; thence South 17 degrees 00 minutes 00 seconds West on and along the westerly line of said subdivision 515.96 feet;thence South 41 degrees 18 minutes 27 seconds West on and along the Westerly line of said subdivision, 199.86 feet;thence South 10 degrees 21 minutes 28 seconds West on and along the Westerly line of said subdivision 329.89 feet;thence South 06 degrees 10 minutes 00 seconds Easton and along the Westerly line of said subdivision,361.87 feet;thence South 32 degrees 10 minutes 00 seconds East on and along the Westerly line of said subdivision 366.57 feet;thence North 70 degrees 38 minutes 00 seconds East on and along the Southerly line of said subdivision 136.45 feet;thence North 43 degrees 27 minutes 45 seconds East on and along the Easterly line of said subdivision 586.00 feet;thence North 06 degrees 10 minutes 00 seconds West on and along the Easterly line of said subdivision,231.76 feet thence North 45 degrees 00 minutes 00 seconds East on and along the Easterly line of said subdivision,315.00 feet;thence North 60 degrees 45 minutes 20 seconds East on and along the Easterly line of said subdivision 152.11 feet to the westerly line of Brookshire,Second Section, the plat of which is recorded in Plat Book 3,page 116,in the Office of the Recorder of Hamilton County,Indiana; thence South 08 degrees 32 minutes 35 seconds East on and along said West line 236.08 feet;thence North 62 degrees 51 minutes 20 seconds East on and along the South line of Lot 124 in said subdivision 170.00 feet to the Wesledy line of Brookshire Parkway,said point being on said curve with a radius of 330.00 feet,the radius point of which bears North 62 degrees 51 minutes 20 seconds East from the last described point;thence Southeasterly on and along said right of way line on a curve 131.64 feet to a point which bears South 40 degrees 00 minutes 00 seconds West from the radius point of said curve;thence South 50 degrees 00 minutes 00 seconds Easton and along said right of way line 268.33 feet;thence South 40 degrees 00 minutes 00 seconds West on and along the Westerly line of said Brookshire,Second Section,150.00 feet thence South 41 degrees 48 minutes 31 seconds East on and along said West line 93.23 feet;thence South 11 degrees 03 minutes 36 seconds East on and along said West line 138.55 feet;thence South 30 degrees 00 minutes 00 seconds West on and along will West line 312.18 feet;thence South 04 degrees 54 minutes 42 seconds East on and along said West line 486.70 feet to the -26 - EXIUBIT A (Page 3 of 5) Brookshire Golf Business Real Estate Legal Description Northeast corner of Lot 261 In Brookshire,Section Five,the plat of which is recorded in Plat Book 4,pages 117 and 118 in the Office of the Recorder of Hamilton County,Indiana;thence South 90 degrees 00 minutes 00 seconds West on and along the Northerly line of said subdivision 430.00 feet;thence South 24 degrees 20 minutes 55 seconds West on and along the Westerly line of said subdivision, 144.78 feet;thence South 12 degrees 54 minutes 00 seconds West on and along the Westerly line of said subdivision,236.59 feet thence South 45 degrees 00 minutes 00 seconds East on and along the Westerly line of said subdivision,196.32 feet; thence South 55 degrees 25 minutes 49 seconds East 375.39 feet;thence South 76 degrees 13 minutes 35 seconds East on and along the Southerly line of said subdivision,350.12 feet thence South 86 degrees 41 minutes 40 seconds East on and along the Southerly line of said subdivision,770.00 feet thence North 86 degrees 37 minutes 23 seconds East on and along the Southerly line of said subdivision, 150.78 feet;thence North 71 degrees 41 minutes 38 seconds East on and along the Southerly line of said subdivision,75.27 feet; thence North 57 degrees 44 minutes 40 seconds East on and along the Southerly line of said subdivision,280.75 feet;thence North 89 degrees 49 minutes 06 seconds East on and along the Southerly line of said subdivision, 206.71 feet measured(230.00 feet deed)to the Westerly right-of-way of Gray Road as described in Bridge Project #139,the following six(6)courses and distances being along the aforesaid right-of-way line(1)thence South 00 degrees 09 minutes 42 seconds East 401.59 feet;(2)thence South 12 degrees 14 minutes 45 seconds West 102.39 feet;(3)thence South 00 degrees 09 minutes 42 seconds East 150.00 feet;(4)thence South 19 degrees 33 minutes 15 seconds East 53.01 feet;(5)thence South 07 degrees 21 minutes 54 seconds West 101.96 feet;(6) thence South 09 degrees 40 minutes 09 seconds East 207.97 feet to the Northerly right-of-way line of 116th Street as now laid out and in use,the following four(4)courses and distances being along the aforesaid Northerly right-of-way line(1)thence South 61 degrees 37 minutes 56 seconds West 62.66 feet;(2)thence South 84 degrees 45 minutes 22 seconds West 55.24 feet;(3)thence North 89 degrees 54 minutes 34 seconds West 675.00 feet; (4)thence South 70 degrees 10 minutes 49 seconds West 53.18 feet;thence South 00 degrees 05 minutes 26 seconds West 20.00 feet to the place of beginning,containing 123.97 acres,more or less. Excepting Therefrom: Part of the Northeast and part of the Northwest Quarter of Section 32,Township 18 North, Range 4 East,Clay Township,Hamilton County,Indiana,more particularly described as follows, Beginning at the Northwest corner of Lot Number Three(3)in Brookshire Overlook,an Addition in Hamilton County, Indiana,as per plat thereof recorded in Plat Book 7,pages 149 and 150 In the Office of the Recorder of Hamilton County,Indiana;thence South 00 degrees 19 minutes 30 seconds West(plat bearing this and the next course are on the perimeter of said Lot Number Three(3)In Brookshire Overlook)69.97 feet to iron pin found; thence South 69 degrees 48 minutes 30 seconds East 76.27 feet;thence South 20 degrees 11 minutes 30 seconds West 12.20 feet thence North 72 degrees 01 minute 00 seconds West 7435 feet thence North 00 degrees 19 minutes 00 seconds East parallel with the West Gne of said Lot Number Three(3),85.19 feet;thence South 89 degrees 40 minutes 30 seconds East 3.50 feet to the Point of Beginning,containing 1,319 square feet (0.03 acre),more or less. 27 EXHIBIT A (Page 4 of 5) Brookshire Golf Business Real Estate Legal Description ALSO LESS AND EXCEPT THEREFROM A part of the Northeast Quarter of Section 32,Township 18 North,Range 4 East,in Hamilton County, Indiana, being more particularly described as follows: Commencing at the northwest corner of Lot 111 in Brookshire,Third Section,as recorded in Book 3,Page 145,in the Office of the Recorder of Hamilton County,Indiana;said northwest corner being North 89 degrees 35 minutes 38 seconds East from a brass plug found In the centerline of Windsor Drive;thence South 88 degrees 22 minutes 10 seconds East(plat bearing)along the north fine thereof a distance of 141.77 feet to the northeast corner of said Lot 111;thence North 78 degrees 54 minutes and 21 seconds East a distance of 75.11 feet to the corner of an existing fence and the Point of Beginning;thence North 40 degrees 6 minutes 59 seconds East along said fence a distance of 78.84 feet;thence North 49 degrees 54 minutes 31 seconds West a distance of 12.48 feet;thence North 40 degrees 32 minutes 18 seconds East a distance of 22.44 feet;thence South 50 degrees 42 minutes 16 seconds East a distance of 21.08 feet;thence South 41 degrees 39 minutes 28 seconds West a distance of 10.56 feet to an existing fence;thence South 49 degrees 46 minutes 01 seconds East along said fence and exterior wall of an existing building a distance of 132.34 feet;the following 3 courses are along said exterior of an existing building;(1)thence South 40 degrees 10 minutes 16 seconds West a distance of 1.40 feet;(2)thence North 49 degrees 49 minutes 44 seconds West a distance of 1.32 feet;(3)thence South 40 degrees 10 minutes 16 seconds West a distance of 33.50 feet to an existing party wall;thence North 49 degrees 49 minutes 44 seconds West along said party wall a distance of 30.20 feet to the exterior wall of said existing building,the following 3 courses are along said exterior way;(1)thence South 40 degrees 10 minutes 16 seconds West a distance of 37.39 feet;(2) thence North 49 degrees 49 minutes 44 seconds West a distance of 15.86 feet; (3)thence South 40 degrees 18 minutes 22 seconds West a distance of 18.04 feet to an existing fence line;thence North 50 degrees 10 minutes 32 seconds West along said fence a distance of 7.81 feet;thence South 39 degrees 34 minutes 40 seconds West a distance of 6.00 feet;thence North 50 degrees 10 minutes 32 seconds West a distance of 5.50 feet;thence North 39 degrees 34 minutes 40 seconds East a distance of 6.00 feet to said existing fence;thence North 50 degrees 10 minutes 32 seconds West along said fence a distance of 80.23 feet to the Point of Beginning. Containing 0.254 acres,more or less. PARCEL 2: Part of Lot 23 in Eden Forests,a subdivision in Hamilton County,Indiana,recorded in Plat Book 2,page 85 in the Office of the Hamilton County Recorder,more particularly described as follows: Beginning at the Northernmost corner of said Lot 23;thence South 00 degrees 14 minutes 35 seconds East on and along the East line of said Lot 209.60 feet;thence North 24 degrees 48 minutes 27 seconds West 155.78 feet to a point on the Northerly line of said Lot;thence North 43 degrees 23 minutes 37 seconds East on and along aforesaid Northerly line 93.85 feet to the place of beginning;containing 0.156 acre,more or less. _ 28 _ EXIIIBIT A (Page 5 of 5) Brookshire Golf Business Real Estate Legal Description PARCEL 3: Part of Lot 24 in Eden Forests,a subdivision in Hamilton County,Indiana,recorded in Plat Book 3,page 85 in the Office of the Hamilton County Recorder,more particularly described as follows: Beginning at the Northeasternmost corner of said Lot 24;thence South 00 degrees 14 minutes 35 seconds East on and along the East line of said Lot 290.40 feet to the Southeast corner of said Lot;thence South 43 degrees 23 minutes 37 seconds West on and along the South line of said Lot 93.85 feet;thence North 24 degrees 48 minutes 27 seconds West 282.27 feet to a point on the Northwesterly line of said Lot;thence North 29 degrees 18 minutes 24 seconds East on and along said Northwesterly line 118.72 feet to the North line of said Lot;thence South 89 degrees 27 minutes 42 seconds East 123.57 feet to the place of beginning,containing 1.037 acres,more or less. PARCEL 4: Part of Lot 25 in Eden Forests,a subdivision in Hamilton County,Indiana,recorded in Plat Book 3,page 85 in the Office of the Hamilton County Recorder,more particularly described as follows: Beginning at the Northeast corner of said Lot 25;thence South 29 degrees 18 minutes 24 seconds west on and along the East line of said Lot 118.72 feet;thence North 24 degrees 48 minutes 27 seconds West 115.16 feet to a point on the North fine of said Lot;thence South 89 degrees 27 minutes 42 seconds East on and along aforesaid North line 106.43 feet to the place of beginning,containing 0.127 acre,more or less. - 29 - EXHIBIT B Copy of Swim Club Deed - 30 - 2542185 May 23. 2006 10. 39AM 12814 FORD DRIVE No. 0794 P. 2 DULY ENTERED FOR TAXATION Subject to final acceptance for transfer 200500011169 Zy day of (e-2• 20 05 Filed For Record in HAMILTON COUNTY, INDIANA pp JENNIFER J HAYDEN y y w Aud for of Hamilton County ry 02-24-2005 At 02:03 GIG. WARR DEED 22.00 Parcel # WARRANTY DEED THIS INDENTURE WITNESSETH, that Brookshire First Mortgage, LLC ("Grantor"), a limited liability company organized and existing under the laws of the State of Delaware CONVEYS AND WARRANTS to Brookshire Swim Club, Inc. ("Grantee"), a corporation of Hamilton County in the State of Indiana, for the sum of One Dollar($1.00) and other valuable consideration, the receipt of which is hereby acknowledged, the following-described real estate in Hamilton County, Indiana and all improvements thereupon situated(the"Premises"): A part of the Northeast Quarter of Section 32, Township 18 North, Range 4 East, in Hamilton County, Indiana,being more particularly described as follows: Commencing at the northwest corner of Lot 111 in, Brookshire, Third Section, as recorded in Book 3, Page 145, in the Office of the Recorder of Hamilton County, Indiana; said northwest corner being North 89 degrees 35 minutes 38 seconds East from a brass plug found in the centerline of Windsor Drive; thence South 88 degrees 22 minutes 40 seconds East(plat bearing) along the north line thereof a distance of 141.77 feet to the northeast corner of said Lot 111; thence North 78 degrees 54 minutes and 21 seconds East a distance of 75.11 feet to the corner of an existing fence and the Point of Beginning; thence North 40 degrees 16 minutes 59 seconds East along said fence a distance of 78.84 feet; thence North 49 degrees 54 minutes 31 seconds West a distance of 12.48 feet; thence North 40 degrees 32 minutes 18 seconds East a distance of 22.44 feet; thence South 50 degrees 42 minutes 16 seconds East a distance of 21.08 feet; thence South 41 degrees 39 minutes 28 seconds West a distance of 10.56 feet to an existing fence; thence South 49 degrees 46 minutes 01 seconds East along said fence and exterior wall of an existing building a distance of 132.34 feet, the following 3 courses are along said exterior of an existing building; (1) thence South 40 degrees 10 minutes 16 seconds West a distance of 1.40 feet; (2)thence North 49 degrees 49 minutes 44 seconds West a distance of 1.32 feet; (3)thence South 40 degrees 10 minutes 16 seconds West a distance of 33.50 feet to an existing party wall; thence North 49 degrees 49 minutes 44 seconds West along said party wall a distance of 30.20 feet to the exterior wall of said existing building, the following 3 courses are along said exterior wall; (1) thence South 40 degrees 10 minutes 16 seconds West a distance of 3739 feet; (2) thence North 49 degrees 49 minutes 44 seconds West a distance of 15.86 feet; (3) thence South 40 degrees 18 minutes 22 seconds West a distance of 18.04 feet to an existing fence line; thence North 50 degrees 10 minutes 32 seconds West along said fence a distance of 7.81 feet; thence South 39 degrees 34 minutes 40 seconds West a distance of 6.00 feet; thence North 50 degrees 10 minutes 32 seconds West a distance of 5.50 feet; thence North 39 degrees 34 minutes 40 day. 28. 2006 1019AM 12814 FORD DRIVE No. 0794 P. 3 seconds East a distance of 6.00 feet to said existing fence; thence North 50 degrees 10 minutes 32 seconds West along said fence a distance of 80.23 feet to the Point of Beginning. Containing 0.254 acres,more or less. Together with (1) an easement for ingress and egress to and from the entrance to the above- described property over and from the adjoining parking lot on and along the existing sidewalk and (ii) the use of a reasonable number of parking spaces in the adjoining parking lot to be designated by Grantor. The aforesaid conveyance is subject to (i) any and all provisions of any ordinance municipal regulation, or public or private law; declarations, restrictions, covenants, matters and easements of record; (ii) any state of facts which an accurate survey or personal inspection of the Premises might reveal; (iii) real estate and other taxes or assessments accruing on or after the date hereof, (iv) all other matters of public record as of the date of the recording of this heed-, and (v) an easement reserved unto the Grantor and any future holder of the land adjacent to the Premises presently owned by Grantor for the purpose of housing,repairing,maintaining and using any and all pipes, conduits, sires, sewers and other connectors presently running on above, under or through the Premises to the premises presently owned by the Grantor (and the Grantee hereby agrees to execute such documents and instruments as a reasonably required by Grantor to evidence such easement).. The conveyance hereunder is subject to the express condition that the Premises shall at all times be used as a pool facility and purposes reasonably related thereto and the owner (the Golf Club Owner")(presently the Grantor) of the real estate commonly known as the Brookshire Golf Club (which parcel surrounds the Property) (the "Golf Course") or the majority portion thereof shall retain a right of reversion in the event that the Premises are at any time used for any other purpose. In addition, the conveyance hereunder is further subject to the express conditions that (i) no material structural or capital modifications to the Premises may be made without the prior written consent of the Golf Club Owner (ii) activities conducted on the Premises shall not interfere with the Golf Course, its operation and enjoyment(including without limitation, that the Premises shall not operate so as to cause a nuisance),and (iii) the Premises shall be kept maintained and in good order and repair consistent with historical operation. The failure to comply with any of the foregoing covenants in this paragraph shall entitle the Golf Course owner to exercise a right of reversion. These restrictions shall be deemed to run with the land and may be released only by the Golf Course Owner. • May. 25. 2006 10: 39AM 12814 FORD DRIVE No. 0794 P. 4 In addition, this conveyance is subject to the following right of first refusal and the following option to re-purchase the Premises: Right of First Refusal. Grantor shall have a right of first refusal to purchase the Premises from Grantee as follows: In the event that Grantee desires to entertain any offers for the sale of the Premises, the Grantee shall first provide 60 days prior written notice before offering the Property for sale to any party. During such time,the Grantor shall have the right to exercise its Option to Purchase described in the following paragraph. In the event Grantor(or its successors or assigns)shall not exercise such option, Grantee may proceed to offer the Property for sale but shall notify all prospective purchasers of provisions of this paragraph. In the event that Grantee receives any offer from such third party which Grantee is willing to accept, Grantee shall notify Grantor in writing of the terms thereof. Grantor shall have thirty (30)days after receipt of such notice,to advise Grantee whether it desires to purchase the Premises on such terms and conditions. If Grantor does not agree to purchase the Premises,the Grantee may convey the Premises on such terms and conditions. In the event of any change in the terms and conditions of the sale from the terms described to Grantor on such notice, the rights of Grantor shall return to the status quo ante and the Grantee shall be required to deliver to Grantor a new notice containing such amended or additional terms and Grantor shall have an additional thirty days to accept or reject such terms. Notwithstanding anything to the contrary contained herein, any purchaser of the Premises from Grantee shall he subject to the terms of the Option described below, Option to Purchase. The Grantor reserves onto itself and its successors and the Grantee grants to the• Grantor an option to purchase the Premises at any time upon 30 days notice for the following purchase price: If such option is exercised on or before January 15, 2009, the Premises shall be re-conveyed to Grantor for a purchase price of Seventy-Five Thousand ($75,000)Dollars.. If such option is exercised after January 15, 2009, the Premises shall be re-conveyed to Grantor for a purchase price of Fifty Thousand ($50,000)Dollars. This option shall terminate on the later of 0) March 15, 2023 or (ii)the date the Mortgage of even date from Grantee to Grantor is released and satisfied. Further Assurances. Each party shall execute such documents and instruments as are reasonably requested by the other party in connection with the exercise of the Option as aforesaid. In the event that any of the restrictions or terms of this deed are deemed unenforceable as written in form or in scope,the parties shall negotiate enforceable provisions having as near the substantive impact as intended hereby as possible and shall execute such documents and instruments as are necessary to evidence such agreements. May. 25. 2006 10 . 39AM 12814 FORD DRIVE No. 0794 P. 5 Rule Against Perpetuities. If any of the rights or interests retained by the Grantor, the Golf Course Holder, the successors of any of the foregoing, would otherwise violate the Rule Against Perpetuities, such rights or interests reserved shall be terminate not later than 10 years after the date of the last to die of Steven A. Hulce;a Manager of Grantor, his wife and all of his descendants living at his death. Payment for Option or Exercise of Right of First Refusal. The Grantor may first setoff any payments owing under the Note (referred to in the Mortgage) in connection with the making of any payment in the exercise of its rights under the Option or Right of First refusal set forth above. Successors and Assigns; Benefits and Burdens. The restrictions in this Deed and the right of first refusal and the option stated herein shall be deemed to run with the land and are for the benefit of the Golf Course, the Golf Course Owner and the successors and assigns thereof and shall bind the Property, the Grantee and its successors and assigns. The undersigned persons executing this deed on behalf of Grantor represent and certify that they are duly elected officers of Grantor and have been fully empowered,by proper resolution of the Board of Directors of Grantor, to execute and deliver this deed; that Grantor has full company capacity to convey the real estate described herein; and that all necessary action for the making of such conveyance has been taken and done. y�IN WITNESS WHEREOF, the Grantor has executed this deed, this /0/1 day of ,2009. Brookshire First Mortgage,LLC BY: _ BY: J PRINTED: PRINTED: ?*-a4 Lr rn-c ro a President Az_Seeretary- CLAa . ft-or-b,+'c. c.t_cr May. 25. 2006 10 .4UAM 12814 FORD DRIVE No. 0794 P. 6 STATE OF INDIANA ) ) SS: COUNTY OF HAMILTON ) Before me, a Notary Public in and for said County and State, personally appeared President of Brookshire First Mortgage, LLC and kNk�cn._ ?,4L4 0t-{ /.Q as� f Brookshire First Mortgage, LLC, who acknowledged the execution of the foregoing, and who, ving been duly sworn, stated that any representations therein contained are true. Witness my hand and Notarial Seal this /0 day of fillAke ,so03 2 A—Q-f-c) MARY F. AMERO taasv f A Re -Notary Public NOTARY PUBLIC MYCOMMiSS ON EXPIRESJAN.31.2E105 Resident of KOew 1,04)0 04 County My Commission Expires: Return Deed to: H.Kim TeKolste#82549,Attorney at Law, 12816 Ford Drive, Fishers, Indiana 46038-2894. Send Tax Bills to: Brookshire Swim Club.Inc., 12120 Brookshire Parkway, Carmel, Indiana 46033 This Instrument Prepared By: H. Kim TeKolste #825-49, Attorney at Law, 12816 Ford Drive, Fishers,Indiana 46038-2894, (317)570-8937,FAX: (317) 578-8798. 8tmLib1:1054496.1 5/8/2004 EXHIBIT C Cell Tower Lease Parcel Legal Description - 31 - 254218_5 LEGAL DESCRIPTION Cell Tower Lease Parcel Part of Section 32, Township 18 North, Range 4 East in Clay Township„ Hamilton County, Indiana, more particularly described as follows: Commencing at the Southeast corner of the Southeast Quarter of said Section 32; thence along the South line of the Southeast Quarter of said Section 32, North 29 degrees 45 tributes 50 seconds West (assumed bearing) a distance of 451.72 feet; thence North 00 degrees 07 minutes 27 seconds West a distance of 307.40 fest; thence North 67 degrees 29 minutes 54 seconds East. a distance of 287.53 feet; thence North 00 degrees 07 minutes 26 seconds West a distance of 148.58 feet; thence North 84 degrees 07 minutes 38 seconds West a distance of 267.34 feet; thence North 00 degrees 10 minutes 46 seconds. West a distance of 440.80 feet; thence North 00 degrees 43 minutes 30 seconds West a distance of 4.43 feet: thence North 89 degrees 47 minutes 13 seconds West a distance of 222.70 feet; thence North 00 degrees 22 minutes 52 seconds West a distance of 95.58 feet; thence North 73 degrees 38 minutes 15 seconds West a distance of 342.83 feet; thence North 72 degrees 45 minutes 34 seconds West a distance of 344.44 feet; thence North 00 degrees 14 minutes 48 seconds West a distance of 690.46 feet; thence North 15 degrees 50 minutes 19 seconds West a distance of 126.91 feet to the point of beginning of this description; thence North 37 degrees 16 minutes 36 seconds West a distance of 65.00 feet; thence North 52 degrees 43 minutiae 24 seconds East a distance of 20.00 feet; thence South 37 degrees 15 'minutes 36 seconds East a distance of 65.00 feet; thence South 52 degrees 43 minutes 24 seconds West a distance of 20.00 feet to the point of beginning and containing 1,300 square feet, more or less. • EXHIBIT D Cell Tower Access Easement Legal Description - 32 - 254218_5 PROPOSED ACCESS/UTILITY EASEMENT Port of Section 32, Township 18 North, Range 4 East in Cloy Township, Hamilton County, Indiana, more particularly described as follows: Commencing at the Southeast corner of the Southeast Quarter of said Section 32; thence along the South line of the Southeast Quarter of said Section 32, North 89 degrees 46 minutes 50 seconds West (assumed bearing) a distance of 481.72 feet; thence North 00 degrees 07 minutes 27 seconds West a distance of 307.40 feet; thence North 67 degrees 29 minutes 54 seconds East a distance of 287.53 feet; thence North 00 degrees 07 minutes 26 seconds West a distance of 146.55 feet; thence North 84 degrees 07 minutes 38 seconds West a distance of 267.34 feet; thence North 89 degrees 10 minutes 4-6 seconds West a distance of 440.80 feet; thence North 00 degrees 43 minutes 30 seconds West a distance of 4.43 feet; thence North 89 degrees 47 minutes 13 seconds West a distance of 222.70 feet; thence North 00 degrees 22 minutes 52 seconds West a distance of 98.59 feet; thence North 73 degrees 38 minutes 15 seconds West a distance of 342.83 feet; thence North 72 degrees 45 minutes 34 seconds West a distance of 344.44 feet; thence North 00 degrees 14 minutes 48 seconds West a distance of 690.48 feet; thence North 15 degrees 50 minutes 19 seconds West a distance of 126.91 feet; thence North 37 degrees 16 minutes 36 seconds West a distance of 65.00 feet; thence North 52 degrees 43 minutes 24 seconds East a distance of 20.00 feet to the point of beginning of this description: thence North 00 degrees 00 minutes 00 seconds East a distance of 50.50 feet; thence South 90 degrees 00 minutes 00 seconds West a distance of 20.00 feet; thence North 00 degrees 00 minutes 00 seconds East a distance of 20.00 feet; thence North 90 degrees 00 minutes 00 seconds East o distance of 20.00 feet; thence North 50 degrees 36 minutes 20 seconds East a distance of 287.46 feet; thence North 38 degrees 50 minutes 41 seconds East a distance of 89.09 feet; thence North 30 degrees 38 minutes 02 seconds East a distance of 290.16 feet; thence North 33 degrees 10 minutes 41 seconds East a distance of 170.08 feet; thence North 27 degrees 00 minutes 14 seconds East a distance of 209.27 feet; thence North 38 degrees 56 minutes 17 seconds East a distance of 440.98 feet; thence South 38 degrees 34 minutes 20 seconds East a distance of 20.48 feet; thence South 38 degrees 56 minutes 17 seconds West a distance of 434.46 feet; thence South 27 degrees 00 minutes 14 seconds West o distance of 208.26 feet; thence South 33 degrees 10 minutes 41 seconds West a distance of 170.71 feet; thence South 30 degrees 38 minutes 02 seconds West a distance of 291.15 feet; thence South 38 degrees 50 minutes 41 seconds West a distance of 92.59 feet; thence South 50 degrees 36 minutes 20 seconds West a distance of 280.07 feet; thence South 00 degrees 00 minutes 00 seconds West a distance of 46.04 feet; thence South 37 degrees 16 minutes 36 seconds East a distance of 19.82 feet; thence South 52 degrees 43 minutes 24 seconds West a distance of 25.00 feet; thence North 37 degrees 16 minutes 36 seconds West a distance of 20.00 feet to the point of beginning and containing 31,706 square feet, more or less. Subject to oil rights-of-way, easements and restrictions of record. Note: This legal description is not the result of a full boundary survey. It is the result of compilation of record information and location of available monumentation. EXHIBIT E The parties agree to allocate the $2,999,999.00 Purchase Price as follows: (a) Real Estate: $ • (b) Golf Inventory: $ (c) Course Maintenance Equipment: $ (d) Golf Cart Inventory: $ (e) Range Equipment: $ Z7 (f) Miscellaneous Equipment: $ (g) Covenant Not to Compete $ U O (h) Goodwill $ F" O (i) Pro Shop Inventory $ (j) Food Inventory $ (k) Liquor Inventory $ A W F O F1 O Er - 33 - 254218_5 fs.