<PAGE> 1
EXHIBIT 10.1
STATE OF NORTH CAROLINA )
) AGREEMENT OF PURCHASE AND SALE
COUNTY OF BRUNSWICK )
THIS AGREEMENT OF PURCHASE AND SALE (the "Agreement") is made and
entered into this 18th day of October, 2000, by and between Reeves Telecom
Limited Partnership, a South Carolina limited partnership (hereinafter referred
to as the "Seller") and WW-Golf & Services, LLC, a South Carolina limited
liability company (hereinafter referred to as the "Purchaser") and relates to
the golf course business generally known as Fox Squirrel Country Club, which is
located within the City of Boiling Springs Lakes, North Carolina (herein called
the "Club").
WITNESSETH:
WHEREAS, the Seller is the owner of the Club; and
WHEREAS, the Seller is also the owner of the real estate upon which the
Club is operated (herein called the "Real Property"), which is more fully
described in Exhibit "A" attached hereto and incorporated herein by reference;
and
WHEREAS, the Purchaser desires to purchase, and Seller agrees to sell
to Purchaser the Real Property and the Assets (as hereinafter defined) (such
Real Property and Assets being collectively referred to below as the
"Property");
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. SALE AND PURCHASE OF ASSETS.
1.1 Assets: The Seller shall sell, convey, transfer, assign and deliver
to the Purchaser, and the Purchaser shall purchase and accept from the Seller,
upon the terms and conditions hereinafter set forth, and in consideration of the
payment to the Seller of the Purchase Price set forth in Paragraph 3, the
following described personal property, which includes the items of personal
property described in Exhibit "B" attached hereto and incorporated herein by
this specific
1
<PAGE> 2
reference (all of which is collectively referred to as the "Assets"):
(a) Furniture, Fixtures, Equipment and Improvements. All
furnishings, furniture, fixtures, equipment, trade fixtures, golf carts,
vehicles, and all other tangible personal property used or useful in connection
with the Club, whether owned, leased or otherwise held by Seller and not
excluded in subsection 1(h) hereof, including all of the property listed on
Exhibit "B" (the "Equipment and Furniture"). Purchaser will assume all
assignable current leases for Equipment and Furniture listed on Exhibit "B";
(b) Inventory. All of the inventory of the golf pro shop and
of the food and beverage operation listed in Exhibit "C" (the "Inventory"),
which will be prepared and attached hereto (bearing the parties' initials) not
later than two (2) days prior to the Closing Date, together with all menus,
napkins, paper towels, toothpicks, chalk boards and "white boards" and their
ancillary supplies, cleaning supplies, stationery and stationery supplies, desk
and office supplies, postage stamps, scorecards, scorecard pencils, rental clubs
and bags, pull carts, and similar items typically expensed when purchased that
are on hand at the Club at the time of Closing;
(c) Licenses, Permits and Telephone Numbers. All transferable
licenses, permits and telephone numbers used in the operation of the Club;
(d) Files and Records. All lists of members and customers,
tournament files, handicap records, employee files and records, vendor files
with purchase orders and invoices for not less than six (6) months prior to
Closing, bookkeeping records, budgets, maintenance records, instruction manuals,
maintenance manuals, and all other similar documents which may exist;
(e) Warranty Rights. All manufacturers' and sellers'
warranties made to Seller which are transferable with regard to any of the
Assets being transferred under this Agreement;
(f) Goodwill; Contract Rights. All goodwill of the Club, and
all rights in and under all personal property leases, equipment leases, vendor
agreements and other agreements, which are assignable, and copies of all such
contracts and agreements shall be delivered by Seller to Purchaser not later
than three (3) business days after the Seller's acceptance of this Agreement;
and
2
<PAGE> 3
(g) Name, Logos, Trade Marks and Service Marks. All rights of
the Seller in and to the name "Fox Squirrel Country Club", any logos, trade
marks and service marks used by Seller in connection with the Club. Seller
agrees to execute any documents necessary to authorize Purchaser to form a new
corporation under the name "Fox Squirrel Country Club".
(h) Excluded Items. The following described items are
specifically excluded from the items of personal property to be sold, conveyed,
transferred, assigned and delivered to Purchaser:
(i) Seller's computerized bookkeeping records of the
Club, to the extent that such records are incorporated within
the bookkeeping records of Seller's other businesses, and the
installation materials, instruction manuals and warranties
relating to the software utilized in such computerized
bookkeeping records, but Seller shall furnish to Purchaser a
hard copy print out of all computerized bookkeeping records of
the Club for at least the last three (3) fiscal years and the
interim period, if any, prior to Closing;
(ii) One or more copies of all lists, files and
records, including without limitation all accounting and
bookkeeping records, turned over to Purchaser;
(iii) The video golf game located in the bar area of
the club house dining room, which game is owned by a third
party, but Seller assigns to Purchaser at Closing Seller's 50%
interest in the revenue from such game;
(iv) The propane tanks outside of the club house,
which tanks are owned by the local gas service and are
utilized for the kitchen and fireplace within the clubhouse;
and
(v) The approximately fifty (50) golf carts owned by
members of the Club which are subject to trail fees and some
of which are stored from time to time in the Club's cart shed.
1.2 Allocation of Costs and Expenses. Costs and expenses shall be
allocated between Purchaser and Seller in the following manner:
3
<PAGE> 4
(a) Seller shall be responsible for the following costs and
expenses:
i. preparing the Bill of Sale and Assignment;
ii. preparing the Loan Agreement, Promissory Note, Deed
of Trust, Security Agreement, UCC financing statement
and related financing documents; and
iii. preparation of Seller's affidavits, if any.
(b) Purchaser shall be responsible for the following costs and
expenses:
i. insurance premiums from and after the Closing Date;
and
ii. recordation fee of the financing provided by Seller
to Purchaser.
(c) Notwithstanding the provisions of Paragraphs 1.2(a) and
1.2(b) hereof, Seller and Purchaser shall each be responsible for its own legal
costs and expenses, including, without limitation, legal costs and expenses
incurred in connection with the preparation and review of this Agreement, the
related Bill of Sale and Assignment, Loan Agreement, Promissory Note and
Security Agreement, and all documentation relating thereto.
(d) Costs and expenses to be pro rated between Seller and
Purchaser are set forth in Paragraph 15 hereof.
2. PURCHASE OF REAL PROPERTY.
Seller for the consideration and upon and subject to the terms and
conditions hereinafter set forth hereby agrees to sell and convey the Real
Property to the Purchaser, and Purchaser hereby agrees to purchase the Real
Property from Seller. At the Closing, the Seller shall deliver to the Purchaser
a General Warranty Deed conveying the Real Property to the Purchaser, free and
clear of all liens and encumbrances whatsoever except for the lien, if any,
relating to Brunswick County real estate taxes not yet due and payable, and as
provided in the Loan Agreement, Promissory Note and Security Agreement of even
date herewith. Costs and expenses shall be allocated among Seller and Purchaser
in the following manner:
4
<PAGE> 5
(a) Seller shall be solely responsible for the following costs
and expenses:
i. preparing the General Warranty Deed;
ii. preparing the Loan Agreement, Promissory Note, Deed
of Trust, UCC financing statement and related
financing documents;
iii. wood-destroying insects inspection;
iv. Phase I environmental study;
v. boundary survey of the Real Property;
vi. revenue stamps for the deed;
vii. escrow fees; and
viii. broker's commission.
(b) Purchaser shall be solely responsible for the following
costs and expenses;
i. insurance premiums from and after the Closing Date;
ii. recordation fee for the deed;
iii. recordation fee of the financing provided to
Purchaser by Seller;
iv. title insurance premium;
v. title examination fee; and
vi. the difference between an ALTA survey and a boundary
survey if, pursuant to Paragraph 4.1 hereof,
Purchaser has requested Seller to provide an ALTA
survey.
(c) Notwithstanding the provisions of Paragraphs 2(a) and 2(b)
hereof, Seller and Purchaser shall each be responsible for its own legal costs
and expenses, including, without limitation, legal costs and expenses incurred
in connection with the preparation and review of this Agreement, the related
Bill of Sale and Assignment, Loan Agreement, Promissory Note, Deed of Trust, and
all documentation relating thereto.
(d) Costs and expenses to be pro rated between Seller and
Purchaser are set forth in Paragraph 15 hereof.
5
<PAGE> 6
3. PURCHASE PRICE.
(a) The total purchase price (the "Purchase Price") for the
Assets and the Real Property shall be Eight Hundred and Sixty-Two Thousand, Five
Hundred and No/100's Dollars ($862,500.00), which shall be paid in the following
manner:
i. Twenty-Five Thousand and No/100's Dollars
($25,000.00) in cash as an earnest money deposit (the
"Deposit"), to be held in escrow by the Escrow Agent
designated in Paragraph 22 hereof under the terms and
conditions of this Agreement;
ii. One Hundred Twenty-Five Thousand and No/100's Dollars
($125,000.00) in cash at Closing; and
iii. Seven Hundred and Twelve Thousand, Five Hundred and
No/100's Dollars ($712,500.00) in the form of a
Promissory Note with terms and conditions set forth
in Paragraph 4.4 hereof.
(b) The Purchase Price will be adjusted to reflect the dollar
amount of Inventory at Closing as follows: (i) if the dollar amount of Inventory
at Closing exceeds the dollar amount of Inventory as set forth in Seller's
unaudited financial statements last filed with the U.S. Securities and Exchange
Commission on Form 10-K or Form 10-Q, as the case may be, the Purchase Price
will be increased by the amount of such excess, and (ii) if the dollar amount of
Inventory at Closing is less than the dollar amount of Inventory as set forth in
Seller's unaudited financial statements last filed with the U.S. Securities and
Exchange Commission on Form 10-K or Form 10-Q, as the case may be, the Purchase
Price will be decreased by the amount of such decrease.
(c) The parties agree that the consideration to be paid by
Purchaser is for the following elements: (i) Real Property, (ii) Assets (which
are personal property), (iii) Inventory, and (iv) Goodwill. The Purchase Price
shall be allocated as agreed upon by the parties during the Due Diligence Period
(hereinafter defined). If Seller and Purchaser cannot agree on the allocation,
the allocation shall be made based upon generally accepted accounting
principles.
6
<PAGE> 7
4. DUE DILIGENCE PERIOD; CONTINGENCIES.
4.1 Due Diligence Period: For a period of sixty (60) days after the
Execution Date (the "Due Diligence Period"), Purchaser has the right to conduct
the Inspection (as hereinafter defined) and conduct any and all investigations,
interviews and studies of the Property, and review any and all documents,
materials and information relating to the Property as it deems necessary and
appropriate, unless otherwise waived in writing by Purchaser. Not later than
five (5) business days from the date Seller has received from Purchaser this
fully executed Agreement, Seller will identify a surveyor and an engineering
company to obtain the following items: (a) a current boundary survey of the Real
Property, and (b) a Phase I environmental report in connection with the Real
Property which must be completed by a reputable environmental consultant. Seller
shall pay all of the cost of the survey and the Phase I environmental report. In
the event that Purchaser requests in writing not more than five (5) days after
the date this Agreement is executed by both parties that Seller provide an ALTA
("as built") survey, instead of a boundary survey, of the Real Property,
Purchaser shall bear the difference in cost between an ALTA survey and a
boundary survey.
4.2 Inspection. Purchaser, and its employees and designated agents and
consultants may, during the Due Diligence Period, have access as Seller's
invitees to enter upon the Real Property to inspect, examine, and survey it and
to make such other tests which Buyer may deem necessary (the "Inspection"), all
at Purchaser's expense. Purchaser shall, at its expense, restore the property to
its former condition in the event Purchaser does not acquire the Property.
Purchaser agrees to indemnify, save and hold harmless Seller from and against
all liens and for any damages, or any death or injury to any person, occurring
on the property and from and against any other liability, cost or expense
including attorney fees and court costs as a result of the activities or
presence of Purchaser or persons acting on its behalf in the exercise of such
Inspection rights. In addition, except as hereinafter provided with respect to
computerized records, Purchaser shall have the right to inspect all records of
the Club, including the financial records, contracts, inventory records, and all
other documents and data relevant thereto, and Seller shall make such records
and information available to the Purchaser and its employees and designated
agents and consultants during the Due Diligence Period. To the extent that
Seller's computerized records of the Club, including without limitation
accounting and bookkeeping records, are incorporated within
7
<PAGE> 8
the computerized records of Seller's other businesses, Purchaser shall be
entitled to a hard copy print out of all of such records of the Club (but not to
any other of Seller's businesses) for at least the last three (3) fiscal years
and the interim period, if any, up to and including the time of Inspection, and
Seller shall make such hard copy print out available to Purchaser and its
employees and designated agents and consultants during the Due Diligence Period.
4.3 Phase I Environmental Report: Prior to Closing, an environmental
engineer shall perform, at Seller's expense, an environmental audit of the
Property. Such engineer shall be selected by Seller and shall be approved by
Purchaser, which approval shall not be unreasonably withheld. This audit shall
be a Phase I Environmental Site Assessment as set forth in the American Society
for Testing and Materials ("ASTM") standard E 1527-94, or latest modification
thereto. This environmental audit shall be addressed to Purchaser and shall
include reports and investigations of any current or past use of the Property,
as well as other properties contiguous to the Property, and shall demonstrate
that the Property (including the ground water of the Property) is in compliance
with all laws, rules, and regulations of any federal, state, county or local
governmental authority relating to environmental matters within the jurisdiction
of such governmental authority, and satisfies all conditions of any
environmental nature customarily required by lending institutions within
Brunswick County, North Carolina. If any hazardous or toxic chemical, material
substance or waste is revealed in such audit, Seller shall, at its option,
either (i) remove same or otherwise adequately dispose of same in accordance
with applicable laws and regulations, and, except for such removal and disposal,
restore the Property as close as is reasonably practicable to its previous
condition prior to the Closing Date, in which case Seller shall have a
reasonable period of time in which to effect such removal or disposal and
restoration and the Closing Date may, if necessary, be postponed for not more
than ninety (90) days for same, or (ii) notify Purchaser in writing of its
election not to effect such removal or disposal and restoration, in which case
Purchaser may either waive the condition hereunder or elect to terminate this
Agreement. Provided, however, this option (ii) is available to Seller only if
the cost of removal or disposal exceeds $10,000.00. If the cost of removal or
disposal is less than $10,000.00, Seller must remove or dispose of same as set
forth in (i) above.
8
<PAGE> 9
4.4 Financing. To effect the transaction covered by this Agreement,
Seller shall provide financing to Purchaser in the amount of Seven Hundred and
Twelve Thousand, Five Hundred and No/100's Dollars ($712,500.00). Purchaser
shall execute and deliver to Seller at Closing a Promissory Note in a form, and
on terms and subject to the conditions, as set forth in Exhibit F hereto, and a
Loan Agreement in a form, and on terms and subject to the conditions, as set
forth in Exhibit G hereto. Purchaser shall execute and deliver to Seller at
Closing a Deed of Trust, a Security Agreement and such other loan documents as
are customary for mortgage and financing transactions of this type in Brunswick
County, North Carolina. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT SHALL NOT
CLOSE UNLESS AND UNTIL THE RELATED LOAN AGREEMENT BECOMES EFFECTIVE PURSUANT TO
SECTION 7.9 THEREOF AND ALL OF THE CONDITIONS SET FORTH IN ARTICLE 3 THEREOF ARE
FULLY COMPLIED WITH.
5. LIABILITIES AND INDEMNIFICATIONS.
5.1 Non-Assumption of Liabilities by Purchaser: Purchaser shall not
assume, be liable for or obligated in any way for any debts, liabilities,
commitments, or obligations of the Seller (or its predecessors) of any kind or
nature whatsoever, whether absolute or contingent, liquidated or unliquidated,
and whether or not accrued, matured, known or suspected ("Seller's Obligations")
arising from the operation of the Club or the ownership of the Property prior to
Closing, except for obligations arising under contracts which Purchaser agrees
to assume in writing. It is further agreed and recognized that Seller, in
disposing of the Property, does not assume any responsibility or liability
whatsoever for any commitments, obligations, or debts incurred by Purchaser, its
successors, arising from the ownership of the Property subsequent to the
Closing, regardless of whether fixed, accrued or contingent. Seller shall remain
fully and solely liable with respect to all of the Seller's Obligations. With
regard to any Federal, State, or Local taxes (other than real estate taxes for
the current year, which are to be prorated at Closing), Purchaser does not
assume and shall not in any way be responsible or liable for such taxes, and the
Assets and the Real Property shall not be subject to such taxes.
5.2 Indemnification by Seller. Seller shall pay, defend, and hold
Purchaser harmless, except for obligations arising under contracts assumed in
writing by Purchaser, from and against any liability of any nature whatsoever,
regardless of the nature in which such liability may arise, from any claims,
9
<PAGE> 10
actions, demands, expenses, attorneys fees, damages, losses, liabilities, suits
or judgments, costs, and expenses, including those of any employee of Seller, or
any customer, member, invitee, or licensee of Seller or the Club, whether past
or present, arising from (i) possession, ownership, or operation of the Property
or the Club by Seller or any of Seller's predecessors; (ii) any third party
relationship with Seller or the Club prior to Closing; (iii) any
misrepresentation, breach of warranty or covenant, or non-fulfillment of
agreement on the part of Seller under this Agreement; and (iv) any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished to Purchaser by Seller under this Agreement.
6. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Purchaser that:
(a) Seller is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of South Carolina, and
is in good standing under the laws of the State of North Carolina. Seller's
general partner is Grace Property Management, Inc. (herein referred to as
"GPM"), a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and is in good standing under the laws
of the State of North Carolina. GPM has approved this agreement and has full
power and authority to enter into this Agreement on the Seller's behalf and to
sign any and all legal documents required to consummate the transaction which is
the subject hereof;
(b) Seller is the lawful owner of the Property (being all of
the Assets and the Real Property), and at the Closing will have, and will
transfer to Purchaser, valid, good and marketable title thereto by a General
Warranty Deed, free and clear of any claims, liens, equities or encumbrances
(except with regard to the lien of current real estate taxes, as stated above).
Seller has, and at the Closing will have, full right and power to sell, assign
and transfer the Assets and the Real Property pursuant to this Agreement, and
the delivery to Purchaser at the Closing of appropriate instruments of
conveyance will pass title to such Assets and Real Property free and clear of
any claims, liens, equities, or encumbrances, except as provided herein. The
execution and performance of this Agreement, the Deed, the Bill of Sale, Loan
Agreement, the Promissory Note, Deed of Trust, Security Agreement, and related
documents, including the transfer of Seller's Property hereunder, does not, and
will not, conflict
10
<PAGE> 11
with or result in a breach, or violate any of the terms, of any agreement,
instrument, judgment decree or order to which Seller is a party, or by which it
is or may be bound, or constitute a default thereunder, or result in the
creation or imposition of any lien, charge or encumbrance on, or give to others
any interest or right in, any of the Assets of Seller;
(c) Seller will not dispose of any of the Assets or the Real
Property prior to Closing other than in the normal course of business;
(d) As of the Closing, the Equipment and Furniture will be in
"as is, where is" condition, without representation or warranty, except that
their condition shall not materially change between the date hereof and the date
of Closing;
(e) As of the Closing, the Inventory is useable as current
inventory in the ordinary course of business and is of marketable quality;
(f) There are no lawsuits pending or, to the Seller's
knowledge, threatened against Seller relating to the Club, the Assets, and/or
the Real Property, and Seller is not in material default under any agreements
relating to any aspect of the Club or the Real Property;
(g) There are no known claims for damages to property or
bodily injury (including death) resulting from the use, operation or possession
of any of the Assets or the Real Property, or otherwise relating to the
operation of the Club prior to the Closing;
(h) Seller has all required federal, state and local permits,
licenses and variances necessary and relating to the operation of the Club, and
the foregoing will be in full force and effect, except for the beer, wine and
liquor license, which shall be terminated by Seller as of the Closing Date.
Seller has received no notice of any pending or threatened proceeding relating
to the revision, cancellation or termination of any of said permits, licenses,
and variances necessary for the operation of the Club;
(i) There are no labor disputes or legal or administrative
proceedings or investigations pending, or, to the Seller's knowledge,
threatened, and Seller's employees are not covered by a collective bargaining
unit;
11
<PAGE> 12
(j) As of the Closing, the Real Property and the Club are
covered by insurance in the manner and in the amounts customary in the business.
All such policies of insurance are in full force and effect and there are no
outstanding premiums due thereon (any prepaid premiums to be prorated at the
time of Closing);
(k) No representation or warranty of Seller omits or will omit
a material fact necessary to make any representation or warranty made not false
or misleading;
(l) To the best of Seller's knowledge, after diligent
investigation and inquiry: there are no hazardous substances in excess of
permitted levels or reportable quantities under applicable environmental laws
and regulations that are present in, on or under the Real Property, and there is
no present or threatened release of any hazardous substance on the Real
Property; the Real Property is not subject to any federal, state or local
"superfund" lien, proceedings, claim, liability or action, or the threat or
likelihood thereof, for the cleanup, removal, or remediation of any such
hazardous substance from the Real Property or from any other real property owned
or controlled by Seller or in which Seller has any interest, legal or equitable;
there is no asbestos on the Real Property; there are no underground storage
tanks on the Real Property other than that certain underground storage tank
containing fuel oil which is currently in use; by acquiring the Real Property,
Purchaser will not incur or be subjected to any "superfund" liability for the
cleanup, removal or remediation of any hazardous substance from the Real
Property or any liability, cost, or expense for the removal of any asbestos or
underground storage tank from the Real Property other than the fuel oil tank
referred to above), in each case as a result of the condition of the Real
Property on or prior to the Date of Closing pursuant to environmental laws and
regulations in effect as of the Date of Closing; and Seller will indemnify,
defend, and hold Purchaser harmless from and against any and all claims,
demands, liabilities, damages, suits, actions, judgments, fines, penalties,
loss, cost and expense (including, without limitation, attorney fees) arising or
resulting from, or suffered, sustained or incurred by Purchaser as a result
(direct or indirect) of, the untruth or inaccuracy of any of the foregoing
matters represented and warranted by Seller to Purchaser or the breach of any of
the foregoing covenants and warranties of Seller. All of the foregoing
covenants, representations and warranties shall be continued in writing by
Seller and be true and correct at the time of closing hereunder. The terms
"hazardous substance,"
12
<PAGE> 13
"release" and "removal" as used herein shall have the same meaning and
definition as set forth in paragraphs (14), (22) and (23), respectively, of
Title 42 U.S.C. in Section 6903 and "petroleum" as defined in paragraph (8) of
42 U.S.C. in Section 6991. The term "superfund" as used herein means the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, being Title 42 U.S.C. in Section 9601 et seq., as amended, and any
similar state statute or local ordinance applicable to the Real Property,
including, without limitation, North Carolina laws, and all rules and
regulations promulgated, administered and enforced by any governmental agency or
authority pursuant thereto. The term "underground storage tank" as used herein
shall have the same meaning and definition as set forth in paragraph (1) of 42
U.S.C. in Section 6991;
(m) The buildings located on the Real Property are in a state
of good repair and are free of significant infestation or structural damage
caused by termites, wood borers, or other wood destroying organisms, which fact
shall be confirmed by an "Official North Carolina Wood Infestation Report" with
regard to each structure located on the Real Property, which Report is to be
provided by Seller at its expense and are to be dated within thirty (30) days
prior to the date of Closing. [Subsequently amended to provide that the Report
will be dated after November 1, 2000 and will be delivered to Purchaser prior
to the date of Closing.] If significant infestation or sufficient structural
damage are observed, Seller shall in its sole discretion: (i) cause same to be
repaired, (ii) provide written notice to Purchaser of its election not to
repair same but which notice shall permit Purchaser's closing attorney to
escrow funds from the sale proceeds at Closing in an amount equal to the costs
of such repair, or (iii) provide written notice to Purchaser of its election
not to repair same and which specifically prohibits Purchaser's closing
attorney from escrowing funds from the sale proceeds for such repairs, in which
case Purchaser may either waive this condition or terminate this Agreement.
Provided, however, that this third option, listed as (iii) in this Section
6(m), is available to Seller only if the cost of repair exceeds $10,000.00. The
provisions of this Paragraph 6(m) do not apply in any respect to the rain
shelters situated throughout the golf course and which are intended to shield
golfers from temporarily inclement weather;
(n) Other than as set forth in the Fox Squirrel Country Club
Rules and Regulations, a copy of which is annexed hereto as Exhibit "D", no
representations, covenants, restrictions, or agreements of any nature, whether
express or implied (including any rule, regulation, or bylaw relating to
13
<PAGE> 14
membership), have been made by Seller or the Club to anyone concerning: (i) the
creation of any "equity membership" rights or similar rights or claims of
ownership with regard to the Club or the Property; (ii) the total allowable
number of members or classes of membership in the Club, (iii) qualifications or
approval required for new members; (iv) the amount of initiation fees, deposits,
or other fees to be charged to the membership for their use of the Club
facilities; (v) or the rights of the members of the Club, including any
restrictions or waivers of dues for any members. The membership list attached as
Exhibit "H" is a true and correct listing of the current members in the Club and
each member's classification (if any) and schedule of dues and fees. At closing,
no individual, entity, or member has any: (i) equity interest, right of first
refusal, refund rights, financial interest, or any ownership or prescriptive
easement or other rights of any nature in the Club or the Property, or (ii)
rights to control or restrict the operation of the Property;
(o) Seller acknowledges that Purchaser is acquiring only the
Property and is not obligated to retain any employee and is not assuming any
employment agreement of any nature between Seller and its employees. Seller
shall indemnify and hold Purchaser harmless against any claims by any employees
terminated by Seller, including, without limitation, any claims filed with the
Equal Employment Opportunity Commission;
(p) Seller has not entered into any severance or similar
arrangement in respect of any present or former officer or employee of Seller
that will result in any obligation, whether absolute or contingent, of Purchaser
to make any payment to any such present or former personnel following
termination of employment by Seller;
(q) Purchaser shall not assume or be responsible for, and
Seller shall indemnify Purchaser and save Purchaser harmless from, liability for
any claims, coverages, reimbursements, or any other liabilities to any employee,
beneficiary or other person or entity in connection with any of Seller's
employee plans (including, without limitation, any welfare benefits plans) or by
reason of any action by Seller or any of its subsidiaries or other affiliates,
or any administrator or fiduciary or other person or entity, with respect to any
of Seller's employee plans, whether before, on, or after Closing. Seller shall
be solely liable and responsible for any and all assets, liabilities, and
benefits accrued under Seller's qualified pension and savings plans, if
14
<PAGE> 15
any, as of Closing. Purchaser shall not assume, and Seller shall indemnify
Purchaser and save Purchaser harmless from, any liability or obligation
whatsoever with respect to Seller's pension and savings plans, if any, prior to,
on, or after Closing. Notwithstanding anything to the contrary contained herein,
any representation made in this Paragraph by Seller concerning Seller's
employees shall be limited to those persons employed at the Club;
(r) Seller agrees to pay and be liable to Purchaser and its
affiliates and shall assume, indemnify, defend, and hold harmless Purchaser and
its affiliates from and against and in respect of any and all losses, damages,
liabilities, taxes, sanctions that arise under the Internal Revenue Code of
1986, as amended (the "Code"), interest and penalties, cost and expenses
(including, without limitation, disbursements and reasonable legal fees incurred
in connection therewith and in seeking indemnification therefor, and any amounts
or expenses required to be paid or incurred in connection with any action, suit,
proceeding, claim, appeal, demand, assessment, or judgment) imposed upon,
incurred by, or assessed against Purchaser or any of its affiliates or any of
their respective employees arising by reason of or relating to any failure to
comply with the continuation health care coverage requirements of the Code and
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
which failure occurred with respect to any current or prior employee of Seller
or any qualified beneficiary of such employee (as defined in the Code) on or
prior to the Closing Date;
(s) All payroll taxes, sales taxes, alcohol taxes, use taxes,
and all other obligations arising from and as a result of the operation of the
Club and due or to become due to any governmental or quasi-governmental
authority, whether municipal, state, county, or federal, accruing prior to
Closing shall be paid in full by Seller, and Seller shall not take nor omit to
take any action with respect to said taxes which would prevent Purchaser's
performance of its obligations hereunder or impose upon Purchaser any obligation
not contemplated herein;
(t) Between the date hereof and Closing, Seller shall not,
except pursuant to existing agreements to which Seller is bound and copies of
which have been delivered to Purchaser, (i) increase the salary of any employee
of the Club, or (ii) enter into any oral or written agreement with any
individual or firm concerning employment or providing services to the Club, or
(iii) enter into any agreement with
15
<PAGE> 16
the Club membership or modify the membership bylaws of the Club, if any; and
(u) To the best of Seller's knowledge, Seller's use of the
Real Property as a golf course and country club has been permissible under all
applicable laws, rules, regulations and ordinances, including without
limitation, those pertaining to species of flora and wildlife considered by the
U.S. Fish and Wildlife Service to be either threatened or endangered species.
7. PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents and
warrants to Seller that:
(a) Purchaser is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of South
Carolina.
(b) Purchaser has the power and authority to execute and
deliver this Agreement, and to perform its obligations hereunder and to
consummate the transactions provided for herein with respect to it. Such
execution, delivery, performance and consummation have been duly authorized by
all necessary action on the part of Purchaser, and will not contravene the
Operating Agreement of Purchaser or conflict with, result in breach of, or
entitle any party to terminate or call a material default with respect to, any
agreement or instrument to which Purchaser is a party or by which Purchaser or
its properties are bound. This Agreement constitutes the valid and binding
obligation of Purchaser.
(c) Purchaser has no knowledge of any claim, litigation or
proceeding pending or threatened against Purchaser, which if decided adversely
to Purchaser, would preclude Purchaser from consummating the transactions
contemplated by this Agreement or would subject Seller to any liability.
(d) The execution and performance of this Agreement and
related documents, does not, and will not, conflict with or result in a breach,
or violate any of the terms, of any agreement, instrument, judgment, decree, or
order to which Purchaser is a party or by which it is or may be bound, or
constitute a default thereunder.
8. INTENTIONALLY OMITTED.
16
<PAGE> 17
9. EMPLOYEES. Purchaser agrees to interview those personnel of Seller
that Purchaser determines are suitable candidates for employment with Purchaser.
10. BROKERAGE FEES. Seller is represented by Deloris Gausch d/b/a Golf
Exchange. Commission fees shall be payable as set forth in the listing agreement
between Seller and Seller's broker. Purchaser represents to Seller that it has
not entered into any contract with a broker regarding a commission and has not
had discussions which could give rise to a claim by a broker for a commission or
fee of any kind in connection with the transactions contemplated by this
Agreement. Seller shall indemnify Purchaser and hold it harmless from and
against all loss, claims, costs, damages, or expenses, including attorneys fees,
incurred by Purchaser in any action based upon a claim by a broker that Seller
has employed or allegedly employed in connection with the transaction
contemplated by this Agreement other then those listed above. Purchaser shall
likewise indemnify Seller and hold it harmless from and against all loss,
claims, costs, damages, or expenses, including attorneys fees, incurred by
Seller in any action based upon a claim by a broker that Purchaser has employed
or allegedly employed in connection with the transaction contemplated by this
Agreement other then those listed above. The term "broker" shall include any
party who claims a commission or finder's fee of any kind in connection with the
sale or purchase of the Property contemplated hereby.
11. BEER, WINE AND LIQUOR LICENSE. At Closing, Seller's beer, wine and
liquor license shall cease to be effective for the food and beverage service.
Seller shall, if requested by Purchaser, assist Purchaser prior to Closing to
obtain a temporary license in Purchaser's name for the sale of beer, wine and/or
liquor in connection with the food and beverage service, which temporary license
shall not be effective prior to Closing.
12. TIME AND PLACE OF CLOSING. Subject to the terms and conditions
contained in this Agreement, the Closing of this transaction shall take place at
a mutually agreeable location, on or before the date that is ninety (90) days
after the date of this Agreement to close or such other time and place as the
parties may agree. The term "Closing" as used herein shall
17
<PAGE> 18
mean the actual date on which the Closing of this transaction
shall occur.
(a) Possession of Assets. Purchaser shall take
possession of the Real Property and all the Assets of Seller
purchased hereunder, immediately upon the close of business on
the day of Closing.
(b) Documents/Items To Be Delivered by Seller at
Closing. Seller shall deliver to Purchaser at Closing the
following:
(i) General Warranty Bill of Sale and Assignment by
which Seller shall transfer and assign to Purchaser its right,
title and interest in and to the Assets;
(ii) General Warranty Deed to the Real Property and
Seller's Affidavits in the form of lien waivers typically used
in transactions of this type in Brunswick County, North
Carolina;
(iii) Such other documents as are necessary to effect
the transactions contemplated herein;
(iv) All keys, locks or codes for security devices
for the Property, including keys for the golf carts and other
vehicles transferred to Purchaser hereunder;
(v) Written notice substantially in the form approved
by Purchaser's attorney from Seller to each existing member of
the Club, if any, and any new member of the Club (collectively
the "Members") stating the Property has been sold to Purchaser
and directing all Members to regard Purchaser, or its assigns,
as the owner of the Club and to make membership account
payments, if any, to the party and at the address specified by
Purchaser and set forth in such notice;
(vi) Originals (if available) or copies (if originals
are not available) of all licenses and permits applicable to
the Property in possession of the Seller which can be
transferred to Purchaser and the executed application,
transfer or notification forms necessary to effect the
transfer to Purchaser of such licenses and permits;
(vii) Originals (if available) or copies (if
originals are not available) of all building plans,
agreements, and contracts applicable to the Property.
18
<PAGE> 19
(c) Documents/Items To Be Delivered by Purchaser at Closing.
Purchaser shall deliver to Seller at Closing the following:
(i) LLC resolutions of the members and manager(s) of
Purchaser approving the purchase contemplated herein as well
as verifying the authorized officer of Purchaser who will be
executing this Agreement;
(ii) Certificate of Existence/Good Standing for
Purchaser from the appropriate Secretary of State of North
Carolina;
(iii) The Loan Agreement, Promissory Note, Deed of
Trust and Security Agreement of even date herewith, and any
other documents, fully executed, which may reasonably be
required to consummate the transaction contemplated by this
Agreement; and
(iv) The cash portion of the Purchase Price and the
amount of any pro rations due from Purchaser, if any.
13. CONDITIONS PRECEDENT TO CLOSING. The obligations of each party
hereunder to proceed with the Closing and the purchase of the Assets and the
Real Property are, unless waived by such party, subject to the satisfaction of
the following conditions on or before the Closing:
(a) Representations and Warranties True at Closing. All
representations and warranties made in this Agreement shall be true, correct,
and complete in all material respects on and as of the Closing and the
obligations to be performed under this Agreement shall have been performed and
all necessary or appropriate corporate authorizations have been obtained.
(b) No Material Destruction. The Club, the Real Property, and
the Assets of Seller have not been materially or adversely affected in any way.
If the Club, the Real Property, or the Assets of Seller have been damaged in any
way prior to Closing, Purchaser has the option to:
(i) decline to purchase the damaged Real Property
and/or Assets; or
19
<PAGE> 20
(ii) consummate the transaction with respect to the
damaged Assets and/or Real Property, provided that the
Purchase Price shall be reduced by the amount of the damage.
(c) Compliance with Agreement. Seller and Purchaser shall have
substantially performed and complied with all of their respective obligations
under this Agreement which are to be performed or complied with prior to or at
the Closing.
(d) No Litigation. No suit, action, restraining order, or
other proceeding shall be pending or threatened before any court or governmental
agency (state or federal) in which it is or will be sought to restrain,
prohibit, delay, modify, or obtain damages or any other relief in connection
with this Agreement or the consummation of the transactions contemplated hereby
or in connection with any claim against Seller. In addition, no notification
shall have been issued by any governmental agency which sets forth its
opposition to the transactions contemplated by this Agreement or any part
thereof.
(e) Bankruptcy. No voluntary or involuntary petition in
bankruptcy or other legal action brought under the bankruptcy or insolvency laws
of the United States or any state shall be pending by or against either party,
or the parent of such party. If any such proceeding shall be pending at or prior
to the Closing, this Agreement shall automatically terminate and be rendered
null and void.
14. CONDUCT OF SELLER'S BUSINESS PENDING CLOSING. During the pendency
of this sale, prior to and after the date hereof to the Date of Closing, Seller
shall have the right to operate the Club in the normal course of business, as a
going concern, as heretofore provided. Provided, however, that during said
intervening period of time:
(a) Purchases of Merchandise and Supplies. Seller shall
confine its purchases for the Club to the purchase of merchandise for sale in
the golf pro shop and the food and beverage service, and to supplies required
for the pro shop and food and beverage service, in each case as are needed in
Seller's sole judgment. On the Date of Closing, Seller shall provide Purchaser
with a written list of, and invoices for, all merchandise and supplies to be
delivered and paid for by Purchaser after Closing.
20
<PAGE> 21
(b) No Changes to Contracts. Seller will not, without the
prior written consent of Purchaser, make any changes or modifications to any
contract or agreement or incur any further obligation or commitment with regard
to the Club except for purchases in the ordinary course of business and
commitments necessary in the normal operation of the Club. Seller will use its
best efforts to preserve the Club intact, and to preserve for Purchaser the good
will of suppliers, customers, and others having dealings with the Club.
(c) Maintenance of Assets. All Assets and the Real Property
that are to be sold hereunder will not be in the possession or control of the
Purchaser prior to the Closing. However, such Assets and Real Property will be
kept and maintained by Seller in their "as is" condition as of the date hereof,
normal wear and tear excepted and Seller will duly maintain the Real Property in
its as is condition as of the date hereof.
(d) No Breach or Default. Seller shall not do any act or omit
to do any act, which will cause a breach or default pertaining to the Club or
any of its contracts, leases, commitments, or obligations. Seller will duly
comply with all laws applicable to the conduct of the Club.
(e) Notification as to Material Events. Seller will promptly
notify Purchaser in writing of any material event or any change in the Club or
affairs of Seller with respect to the Assets and/or the Real Property or the
filing or threat of any litigation affecting the Club which may occur during
such period, whether or not occurring in the usual or ordinary course of
business.
15. PRORATIONS; ACCOUNTS RECEIVABLE. Items (a) through (d) below will
be prorated between the parties as of the Date of Closing:
(a) Utilities. Any utility charge.
(b) Other Expenses. Any other applicable expenses of the Club
shall be prorated, such as prepaid service contracts and insurance premiums (if
any).
(c) Taxes. Real and personal property taxes shall be prorated
between the parties, so that Seller shall bear any of such taxes levied or
assessed against the Real Property and/or the Assets for any period prior to the
Closing, and Purchaser
21
<PAGE> 22
shall bear any of such taxes levied or assessed against the Real Property and/or
the Assets for any period on or after the Closing. In the event any deficiencies
are assessed or refunds made with respect to any of such taxes, deficiencies
shall be the responsibility of, or refunds shall be paid to, the party having
the responsibility for the payment of the tax pursuant to this paragraph. Any
sales or other taxes attributable to the activities of Purchaser prior to the
Closing shall be the responsibility of Purchaser.
(d) Membership Dues and Trail Fees. Membership dues and trail
fees paid by any Member of the Club prior to the Closing Date in respect of any
period after the Closing Date shall be pro rated between Purchaser and Seller so
that Purchaser receives the benefit of such dues and fees in respect of the
period after the Closing Date and Seller retains the benefit of such dues and
fees in respect of the period up to and including the Closing Date.
(e) Accounts Receivable. All of Seller's accounts receivable
which were accrued and earned in connection with the operation of the Club prior
to the Closing date shall remain the property of the Seller. In order to
facilitate the collection of such receivables, Purchaser agrees to attempt to
collect them for the benefit of Seller for a period of ninety (90) days
following the Closing date. Purchaser shall account for and shall pay to Seller
all of such receivables which are collected by Purchaser within fifteen (15)
days after each billing date which occurs after the Closing, but within ninety
(90) days following the Closing. Purchaser shall make a final accounting and
payment to Seller within one hundred five (105) days following the Closing date
(the "Collection Period"). Purchaser's obligation to exercise efforts to collect
Seller's receivables shall not be greater than Purchaser's efforts to collect
accounts receivable owing to Purchaser, and if any of Seller's receivable remain
unpaid at the end of the Collection Period, Purchaser shall provide a list of
the unpaid accounts to Seller, and Purchaser shall thereafter have no obligation
to Seller with regard to such receivables.
16. TERMINATION OF AGREEMENT.
16.1 Termination Prior to Closing. Purchaser may, in its sole
discretion, terminate this Agreement by providing written notice to Seller: (i)
within sixty (60) days of the date of this Agreement for any reason whatsoever,
or no reason; (ii) within ninety (90) days if Seller elects not to
22
<PAGE> 23
effect the removal of any hazardous or toxic chemical, material substance or
waste and restore the Property pursuant to Paragraph 4.3 hereof and Purchaser
has not waived the condition set forth in Paragraph 4.3; or (iii) if the Closing
Date is extended pursuant to Paragraph 4.3 hereof and a Closing has not occurred
by the end of such additional ninety (90) days period.
16.2 Termination Prior to Closing by Seller. Seller may, in its sole
discretion, terminate this Agreement by providing written notice to Purchaser
(i) if a Closing does not occur within ninety (90) days of the date of this
Agreement and the Closing Date has not been extended pursuant to Paragraph 4.3
hereof; or (ii) if the Closing Date is extended pursuant to Paragraph 4.3 hereof
and a Closing has not occurred by the end of such additional ninety (90) day
period.
16.3 Remedy. In the event that either party shall fail to perform any
covenant, obligation or agreement to be performed by it prior to Closing, then
the only remedy available to the nondefaulting party shall be to terminate this
Agreement, in which case the escrow deposit, together with all interest, if any,
thereon, shall be paid as set forth in Paragraph 19 hereof.
17. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed received, and shall be
effective three (3) business days after mailing, if mailed, certified mail,
postage prepaid, to the parties at the addresses given below, unless another
address shall be furnished to the other party in writing.
NOTICES TO SELLER shall be sent to:
Grace Property Management, Inc.
P.O. Box 163
Glen Head, NY 11545
ATTN: Mr. Davis P. Stowell, Vice President
With a required copy to:
Thomas L. Seifert, P.C.
515 Madison Avenue, Suite 2600
New York, NY 10022
23
<PAGE> 24
NOTICES TO PURCHASER shall be sent to:
ATTN: Steven White
WW-Golf & Services, LLC
2534 B West Palmetto Street
Florence, SC 29501
With a required copy to:
Dalton B. Floyd, Jr., Esquire
The Floyd Law Firm PC
P.O. Drawer 14607
Surfside Beach, SC 29587-4607
NOTICES TO ESCROW AGENT shall be sent to:
For Physical Delivery:
First Citizens Bank
212 1/2 North Howe Street
Southport, NC 28461
Attention: Betty Cowan
If Mailed:
First Citizens Bank
P.O. Box 10309
Southport, NC 28461
Attention: Betty Cowan
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19. ESCROW DEPOSIT. In the event that this Agreement is terminated
pursuant to Paragraph 16(a) or 16(b) hereof, the escrow deposit, together with
any interest, if any, earned thereon, will be returned to Purchaser and this
Agreement shall thereafter be null and void for all purposes.
20. LITIGATION EXPENSES. In the event it becomes necessary for either
party to initiate any claim or proceeding in order to enforce its alleged rights
under the terms of this
24
<PAGE> 25
Agreement, then the prevailing party shall be entitled to reimbursement of its
costs and reasonable attorneys' fees incurred as a result of any such claim,
proceeding or litigation, including but not limited to those caused by appellate
proceedings.
21. NATURE AND SURVIVAL OF REPRESENTATIONS. All statements contained in
any certificate, instrument or document delivered by or on behalf of any of the
parties to this Agreement, pursuant thereto or in connection with the
transaction contemplated thereby, shall be deemed to be representations and
warranties made by the respective party thereunder. All representations and
warranties made by the parties each to the other in this Agreement or pursuant
thereto shall be true and correct at Closing BUT, NOTWITHSTANDING ANYTHING
HEREIN TO THE CONTRARY, NONE OF SELLER'S OR PURCHASER'S REPRESENTATIONS AND
WARRANTIES SHALL SURVIVE THE CLOSING.
22. ESCROW AGENT. First Citizens Bank shall act as the Escrow Agent
receiving funds pursuant to this Agreement, and said Escrow Agent is authorized
and agrees by acceptance thereof to promptly deposit and hold the same in escrow
and to disburse the same subject to clearance thereof in accordance with the
terms and conditions of this Agreement. Failure of clearance of funds shall not
excuse performance by the Purchaser. In the event of breach or default of this
Agreement, the Escrow Agent may in its sole discretion, continue to hold the
monies which are the subject of this escrow until the parties mutually agree to
the disbursement thereof, or until a judgment of a court of competent
jurisdiction shall determine the rights of the parties thereto, or it may
deposit all monies held pursuant to this Agreement with the Clerk of Court for
Brunswick County and upon notifying all parties concerned of such action, all
liability on the part of the Escrow Agent shall fully terminate, except to the
extent of an account of any monies theretofore delivered out of escrow. In the
event of any suit between Purchaser and Seller wherein the Escrow Agent is made
a party by virtue of acting as such Escrow Agent hereunder, or in the event of
any suit where Escrow Agent interpleads the subject matter of this escrow, the
Escrow Agent shall be entitled to recover reasonable attorney's fees and costs
incurred, said fees and costs to be charged and assessed as court costs in favor
of the prevailing party. All parties agree that Escrow Agent shall not be liable
to any party of
25
<PAGE> 26
person whomsoever the mis-delivery to Purchaser or Seller of monies subject to
this escrow, unless such mis-delivery shall be due to willful breach of this
Agreement or gross negligence on the part of the Escrow Agent. The Escrow Agent
must confirm and acknowledge the terms set forth in Item 22 by a separate
agreement.
23. OPERATIONS OF THE CLUB. From and after Closing, Steven White
("White") shall manage the Club on behalf of Purchaser as a golf country club in
a professional manner consistent with accepted industry practice. For as long as
Purchaser owns the Club, each of White's successors as manager of the Club shall
be experienced in managing a golf course and country club, and shall manage the
Club on behalf of Purchaser as golf course and country club in a professional
manner consistent with accepted industry practice. The foregoing requirement
shall be continuing and remain in effect until seven (7) years and six (6)
months after the Closing Date (the "Operating Period"). In the event that
Purchaser sells the Club or all or substantially all of the Club's assets prior
to the end of the Operating Period, Purchaser shall require that any purchase
and sale contract provide that, until not earlier than the end of the Operating
Period, such purchaser be required to (i) operate the Club as a golf course and
country club in a professional manner consistent with accepted industry
practice, (ii) retain a manager experienced in managing a golf course and
country club to manage the Club on behalf of such purchaser, and (iii) require
that all subsequent purchasers be required to operate the Club as a golf course
and country club in a professional manner consistent with accepted industry
practice, and retain a manager experienced in managing a golf course and country
club to manage the Club on behalf of each such purchaser. The deed transferring
ownership of the land from Seller to Purchaser shall contain the following
restrictions: The above described property shall be managed as a golf country
club in a professional manner by an individual experienced in managing a golf
course consistent with accepted industry practice. This requirement shall
continue and remain in effect until seven (7) years and six (6) months from the
date of this conveyance.
24. ASSIGNMENT. This Agreement may not be assigned or transferred by
any party without the prior written consent of the other party.
26
<PAGE> 27
25. APPLICABLE LAW; INTERPRETATION; SEVERABILITY.
25.1 Applicable Law. This Agreement shall be construed in accordance
with the law of the State of North Carolina.
25.2 Interpretation. No provision of this Agreement shall be construed
against or interpreted to the disadvantage of either Purchaser or Seller having,
or being deemed to have, structured or dictated such provisions, the parties
hereto acknowledging that the parties hereto have jointly participated in the
negotiation, drafting and preparation of this Agreement.
25.3 Severability. In the event that any portion of this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
26. CONSTRUCTION; CAPTIONS.
26.1 Construction. All pronouns and any variations thereof shall be
deemed to refer to masculine, feminine, neuter, singular or plural, as the
identity of the person or persons may require.
26.2 Captions. Paragraph headings and captions are inserted for
convenience only, and shall not be deemed to constitute a part of this
Agreement.
27. ENTIRE AGREEMENT; CONFIDENTIALITY; PUBLICITY. This Agreement sets
forth the entire understanding and agreement between the parties with reference
to the subject matter hereof and may not be altered, amended, modified or
terminated except in writing and with the consent of both parties.
Notwithstanding the foregoing, the parties agree that the Confidentiality and
Non-Disclosure Agreement entered into between the parties, a copy of which is
contained in Exhibit "E" annexed hereto, remains in full force and effect
between them. The parties agree that no public disclosure, press release, or
announcement concerning any of the provisions of this Agreement will be made by
either party without the prior written approval of both parties; provided,
however, Purchaser acknowledges that Seller is obligated to make a timely
disclosure of certain facts regarding the transaction contemplated hereby on
Schedule 8-K and in Seller's annual and
27
<PAGE> 28
quarterly statements on Forms 10-K and 10-Q pursuant to applicable securities
laws, and Purchaser will unreasonably withhold its approval of such disclosures.
WITNESS OUR HANDS AND SEALS this 18th day of October, 2000.
WITNESSES: PURCHASER:
WW-GOLF & SERVICES, LLC
By: /S/ STEVEN C. WHITE
--------------------------- -------------------------
Name: Steven C. White
Title: President
---------------------------
WITNESSES: SELLER:
GRACE PROPERTY MANAGEMENT, INC.
By: /S/ DAVIS P. STOWELL
--------------------------- -------------------------
Name: Davis P. Stowell
Title: Vice President
---------------------------
28
<PAGE> 29
STATE OF SOUTH CAROLINA )
) ACKNOWLEDGEMENT
COUNTY OF _______________) (S.C. CODE ANN. SECTION 30-5-30(B)(C))
I, ____________________________________, a notary public for South
Carolina, do hereby certify that Steven White as _____________________ of
WW-Golf & Services, LLC personally appeared before me this day and acknowledged
the due execution of the foregoing instrument.
Witness my hand and official seal this _____ day of ______________,
2000.
_____________________________(L.S.)
Notary Public in and for S.C.
My Commission Expires:_______________
STATE OF NEW YORK )
) ACKNOWLEDGEMENT
COUNTY OF NASSAU ) (S.C. CODE ANN. SECTION 30-5-30(B)(C))
I, ____________________________________, a notary public for New York,
do hereby certify that Davis P. Stowell, as Vice President of Grace Property
Management, Inc., the general partner of Reeves Telecom Limited Partnership,
personally appeared before me this day and acknowledged the due execution of the
foregoing instrument.
Witness my hand and official seal this _____ day of ______________,
2000.
_____________________________(L.S.)
Notary Public in and for N.Y.
My Commission Expires:_______________
29
<PAGE> 30
EXHIBIT "A"
DESCRIPTION OF PROPERTY
[LEGAL DESCRIPTION OF PROPERTY
NOT INCLUDED WITH EXHIBIT TO FORM 10-Q]
30
<PAGE> 31
EXHIBIT "B"
EQUIPMENT AND FURNITURE
[TABLES LISTING EQUIPMENT AND FURNITURE
ARE NOT INCLUDED WITH EXHIBIT TO FORM 10-Q]
31
<PAGE> 32
EXHIBIT "C"
INVENTORY OF PRO SHOP AND FOOD AND BEVERAGE SERVICE
[INVENTORY OF PRO SHOP AND FOOD AND BEVERAGE SERVICE
TO BE INSERTED PRIOR TO CLOSING]
32
<PAGE> 33
EXHIBIT "D"
FOX SQUIRREL COUNTRY CLUB RULES AND REGULATIONS
[RULES AND REGULATIONS NOT INCLUDED
WITH EXHIBIT TO FORM 10-Q]
33
<PAGE> 34
EXHIBIT "E"
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
[AGREEMENT NOT INCLUDED
WITH EXHIBIT TO FORM 10-Q]
34
<PAGE> 35
EXHIBIT "F"
FORM OF PROMISSORY NOTE
[FORM OF PROMISSORY NOTE
NOT INCLUDED WITH EXHIBIT TO FORM 1O-Q]
35
<PAGE> 36
EXHIBIT "G"
FORM OF LOAN AGREEMENT
36
<PAGE> 37
STATE OF NORTH CAROLINA )
) LOAN AGREEMENT
COUNTY OF BRUNSWICK )
THIS LOAN AGREEMENT (the "Loan Agreement") is made and entered
into this _____ day of ___________, 2000, by and between WW-Golf & Services,
LLC, a South Carolina limited liability company (hereinafter referred to as
"Borrower") and Reeves Telecom Limited Partnership, a South Carolina limited
partnership (hereinafter referred to as "Lender").
WHEREAS, Lender is the owner of Fox Squirrel Country Club,
which is situated within the City of Boiling Spring Lakes, North Carolina
(herein called the "Club"); and
WHEREAS, Borrower desires to purchase, and Lender agrees to
sell to Borrower, all of the real property and other assets of the Club, to
which end Borrower and Lender have each executed the Purchase and Sale
Agreement; and
WHEREAS, to effect such transaction, Borrower has requested
Lender extend to it credit in an aggregate principal amount of SEVEN HUNDRED
TWELVE THOUSAND FIVE HUNDRED AND NO/100THS DOLLARS ($712,500.00); and
WHEREAS, Lender is willing to extend such credit to Borrower
on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. The following terms, as used herein, have the
following meanings:
"Affiliate" means, in respect of any Person, any other Person
that directly or indirectly controls, is con trolled by, or is under common
control with, such Person. For purposes of this definition, a Person shall be
deemed to control another Person if such Person possesses, directly or
indirectly, the power (i) to vote ten percent (10%) or more of the securities
having ordinary voting power for the election of directors of such other Person
or (ii) to direct or cause
37
<PAGE> 38
the direction of the management and policies of such other Person, whether
through the ownership of voting securities, by contract or otherwise.
"Assets" has the meaning set forth in the Purchase and Sale
Agreement.
"Borrower" means WW-Golf & Services, LLC, a South Carolina
limited liability company, and its successors.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City are required or authorized
to be closed.
"Capital Expenditures" means, for any period, the aggregate of
all expenditures (including that portion of Capital Leases which is capitalized
on the consolidated balance sheet of Borrower) by Borrower during such period
that, in conformity with GAAP, are required to be included in the property,
plant or equipment or similar fixed capital or asset accounts reflected in the
consolidated balance sheet of Borrower (including equipment that is purchased
simultaneously with the trade-in of existing equipment owned by Borrower to the
extent of the gross amount of such purchase price less the trade-in value of the
equipment being traded in at such time), but excluding expenditures made in
connection with the replacement or restoration of assets to the extent
reimbursed or financed from insurance proceeds paid on account of the loss of or
damage to the assets being replaced or restored or from awards of compensation
arising from the taking by condemnation or eminent domain of such assets being
replaced.
"Capital Lease," as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, has been or would be required to be accounted for as a
capital lease on the consolidated balance sheet of that Person.
"Cash Flow" means, for any Person and for any period, such
Person's Consolidated Net Income for such period adjusted: (a) by the addition
of the sum (without duplication) of such Person's (i) interest expense for such
period, (ii) provision for Taxes based on or measured by income in respect of
such period, and (iii) depreciation and amortization expense for such period, in
each case only to the extent such items were deducted in the determination of
such Person's Consolidated Net Income, and (b) by the subtraction
38
<PAGE> 39
of any non-cash items of income included in the determination of such Person's
Consolidated Net Income.
"Change of Control" means either (i) a Person or "group"
(within the meaning of section 13(d)(3) of the Securities Exchange Act of 1934)
acquiring or having beneficial ownership of securities (including options,
warrants, rights and convertible and exchangeable securities) having a majority
of the ordinary voting power of the capital stock of Borrower (assuming exercise
or conversion solely of the securities held by such Person or group) or (ii) the
election of a majority of the directors of Borrower who are not currently
directors of Borrower and are not designated or approved by a majority of
Borrower's current directors or their designated or approved successors.
"Closing Date" shall have the meaning assigned to such term in
the Purchase and Sale Agreement.
"Club" shall have the meaning assigned to such term in the
Purchase and Sale Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor statute.
"Consolidated Current Assets" means at any date the
consolidated current assets of Borrower determined as of such date.
"Consolidated Current Liabilities" means at any date (i) the
consolidated current liabilities of Borrower plus (ii) the current liabilities
of any Person (other than Borrower) that are Contingent Liabilities of Borrower,
all determined as of such date, less (iii) that portion of the Principal Amount
required by GAAP to be treated as a current liability of Borrower if, and only
if, the Loan is not then in default.
"Consolidated Net Income" means, for any Person and for any
period, the net income (or loss, as the case may be) of such Person and its
Subsidiaries during such period, determined on a consolidated basis; provided,
that (i) the net income of any Person acquired in a transaction accounted for as
a pooling of interests shall be excluded for any period prior to the date of
such acquisition and (ii) the net income of any Subsidiary of such Person that
is organized, or whose principal place of business is located, in a country
other than the country in which
39
<PAGE> 40
such Person is organized or in which such Person's principal place of business
is located shall be excluded to the extent such Subsidiary is not permitted (by
law, by contract or otherwise) to remit to such Person freely convertible
currency in an amount equal to such net income to such Person.
"Consolidated Tangible Net Worth" means at any date the
consolidated stockholders' equity of Borrower less its consolidated Intangible
Assets, all determined as of such date. For purposes of this definition
"Intangible Assets" means the amount (to the extent reflected in determining
such consolidated stockholders' equity) of (i) all unamortized debt discount and
expense, unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, organization or developmental expenses and other
intangible items, (ii) all equity investments in Persons that are not
Subsidiaries, and (iii) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of tangible assets of a going
concern business made in connection with the acquisition of such business)
subsequent to the Closing Date in the book value of any asset owned by Borrower.
"Consolidated Working Capital" means at any date the amount by
which Consolidated Current Assets exceeds Consolidated Current Liabilities as of
such date.
"Contingent Liability" of any Person means any obligation of
such Person directly or indirectly guaranteeing, or in any manner providing for
the payment of, any Debt or other monetary obligation of any other Person,
whether or not contingent, or otherwise protecting the holder of such Debt or
other monetary obligation against loss (whether by letter of credit, by virtue
of partnership arrangements or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or otherwise), or any other
contingent or indirect liability of such Person in respect of the Debt or other
monetary obligations of any other Person; provided that the term Contingent
Liability shall not include endorsements for collection or deposit in the
ordinary course of business.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business and payable not more than
40
<PAGE> 41
12 months from the date of incurrence, (iv) all obligations of such Person as
lessee under Capital Leases, (v) the undrawn face amount of any outstanding
letters of credit issued in favor of such Person, and all obligations of such
Person to reimburse or prepay any bank or other Person in respect of amounts
paid under a letter of credit, banker's acceptance or similar instrument, (vi)
all Debt or other monetary obligations (of such Person or of others) secured by
a Lien on any asset of such Person, whether or not such Debt or other monetary
obligation is assumed by such Person, (vii) all obligations of such Person to
pay a specified purchase price for assets, goods, securities or services whether
or not delivered or accepted (including take-or-pay arrangements and similar
obligations), (viii) all obligations of such Person under conditional sale or
other title retention agreements (even if the remedies of the sellers or lenders
under such agreements in the event of a default thereunder are limited to the
repossession or sale of the property or assets covered thereby), and (ix) all
Debt or other monetary obligations of others in respect of which such Person has
any Contingent Liability.
"Deed of Trust" means the Deed of Trust of even date herewith,
as the same may be amended, supplemented or otherwise modified from time to
time.
"Default" means any condition or event that constitutes an
Event of Default or that with the giving of notice or lapse of time or both
would become an Event of Default.
"Dollars" and "$" each means the lawful currency of the United
States of America.
"Environment" means navigable waters, waters of the contiguous
zone, ocean waters, natural resources, surface waters, ground water, drinking
water supply, land surface, subsurface strata, ambient air both inside and
outside of buildings and structures, and plant and animal life on earth.
"Environmental Laws" means federal, state, local, foreign and
other laws, rules or regulations, permits and licenses, guidance documents,
orders, decrees, judgments, injunctions or other requirements issued,
promulgated, approved or entered thereunder by any Governmental Authority
relating to or imposing liability for or establishing standards of conduct
concerning Hazardous Substances, the protection of the Environment or the
promotion of public health and safety, as now or hereafter may be in effect,
41
<PAGE> 42
including those relating to the Release or threatened Release of Hazardous
Substances into the Environment or otherwise relating to the presence,
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Substances.
"Environmental Liabilities and Costs" means all liabilities,
obligations, responsibilities, obligations to conduct Remedial Actions, losses,
judgments, damages (including consequential, treble, exemplary and punitive
damages), costs and expenses of whatsoever kind or nature (including all fees,
disbursements and other charges of counsel, expert and consulting fees, costs of
investigations and feasibility studies and laboratory fees), Taxes, fines,
penalties and other monetary sanctions, together with any interest due thereon,
in each case whether direct or indirect, known or unknown, absolute or
contingent, past, present or future, arising under any Environmental Law or
resulting from any claim or demand by any Governmental Authority or other Person
(whether based in contract, tort, implied or express warranty, strict liability,
criminal or civil statute, or otherwise), in any way related to or in respect of
(i) on-site environmental, health or safety conditions, (ii) actions necessary
to cause the operations of, or the real property, assets or facilities currently
or previously owned, leased or operated by, Borrower or its Subsidiaries to be
in compliance with all Environmental Laws or (iii) the Release or threatened
Release of Hazardous Substances into the Environment, as a result of past,
present or future operations of Borrower, its Subsidiaries or its or their
predecessors, or any previous owners, operators or lessees of any of the real
properties, assets or facilities owned, leased or operated thereby.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" means Borrower and any other Person that is
a member of the same controlled group as, or is treated as a single employer
with, Borrower or any such Subsidiary under section 414(b), (c), (m) or (o) of
the Code.
"Event of Default" has the meaning set forth in Section 6.1
hereof.
"Fixed Charges" means, for any Person and for any period, the
sum of (i) consolidated interest expense of such Person (adjusted to reflect the
net effective interest rate paid or
42
<PAGE> 43
payable after giving effect to any amounts paid or payable, or actually
received, pursuant to any interest rate or currency swap, interest rate or
foreign exchange rate hedging transaction or other similar arrangement designed
to reduce exposure to fluctuations in foreign exchange or interest rates on Debt
of such Person and its Subsidiaries (other than inter-company debt)) during such
period, excluding the amortization of original issue discount and the payment of
interest on subordinated debt securities paid in securities of like kind but
including cash amounts paid upon the maturity, redemption or other payment of
such amortized amount or of the principal amount of such like-kind securities,
(ii) rentals payable by such Person and its Subsidiaries during such period
under leases, whether or not included in Debt (other than any rental obligations
as lessee under leases that are properly recorded as payments of principal under
Capital Leases under GAAP), with an initial lease term (as defined in Financial
Accounting Standards Board Statement No. 13, as in effect on the date hereof) of
one year or more, and (iii) dividends paid or payable during such period on any
preferred stock issued by such Person or its Subsidiaries (excluding dividends
paid or payable by such a Subsidiary to such Person or one of its Subsidiaries
or dividends paid or payable solely in equity securities having no mandatory
redemption or repurchase rights).
"GAAP" and "generally accepted accounting principles" means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board.
"Governmental Authority" means (i) any government or political
subdivision thereof, whether foreign or domestic, national, state, county,
municipal or regional or any other governmental authority, (ii) any agency or
instrumentality of any such government, political subdivision or other
governmental entity (including any central bank or comparable agency), (iii) any
court, arbitral tribunal or arbitrator and (iv) any non-governmental regulating
body, to the extent that the rules, regulations or orders of such body have the
force of law.
"Hazardous Substance" means any "hazardous substance" as such
term is defined in Title 42 U.S.C. Section 6903, or "oil" or "pollutant or
contaminant," as those terms are defined in 40 C.F.R. Section 300.5, including
substances that are expressly excluded from such definitions as so defined; as
43
<PAGE> 44
well as any other substance that is defined or regulated under any applicable
Environmental Law as a hazardous or toxic substance, a hazardous, industrial,
toxic or special waste, a hazardous material, or any hazardous constituent
thereof.
"Hazardous Waste" means "hazardous waste," as such term is
defined in Section 1004(5) of the Resource Conservation and Recovery Act, 42
U.S.C. Section 6903(5), and in regulations promulgated thereunder at 40 C.F.R.
Part 261, as amended from time to time, but including materials that are
expressly excluded from the definition of such term pursuant to 40 C.F.R.
Section 261.4(b)(4-10) and (c); as well as any other hazardous, toxic or special
waste defined or regulated as such under other Environmental Laws.
"Investment" means any investment in any Person, whether by
means of purchase of stock or other securities, loan, capital contribution or
otherwise.
"Lender" means Reeves Telecom Limited Partnership, a South
Carolina limited partnership, and its successors and assigns.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Loan Agreement, a Person shall be deemed to own
subject to a Lien any asset that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset.
"Loan" means an extension of credit to Borrower pursuant to
Article 2 hereof.
"Loan Agreement" means this Loan Agreement (including all
schedules, exhibits, annexes and appendices hereto), as the same may be amended,
supplemented or otherwise modified from time to time.
"Loan Documents" means this Loan Agreement, and the Promissory
Note, the Deed of Trust and Security Agreement of even date herewith, as the
same may be amended, supplemented or otherwise modified from time to time.
"Long-Term Debt" means at any date, with respect to any
Person, all Debt of such Person and its Subsidiaries
44
<PAGE> 45
(determined on a consolidated basis) that is not a current liability as of such
date.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as in
effect from time to time (or any successor regulation).
"Material Adverse Change" means, in respect of any Person, a
material adverse change in the condition (financial or otherwise), results of
operations, business, assets or prospects of such Person and its Subsidiaries
(taken as a whole).
"Material Adverse Effect" means, in respect of any Person, an
effect that has resulted or could reasonably result in a Material Adverse Change
in or to such Person or a material adverse effect on the ability of such Person
or any of its Subsidiaries to perform its obligations under any of the Loan
Documents.
"Multiemployer Plan" means a "multiemployer plan" within the
meaning of section 4001(a)(3) of ERISA with respect to which any ERISA Affiliate
has any direct or indirect, fixed or contingent liability.
"Non-Excluded Taxes" has the meaning set forth in Section
2.9(a) hereof.
"Ordinary Course Encumbrances" has the meaning set forth in
Section 5.13 hereof.
"Other Taxes" has the meaning set forth in Section 2.9(b)
hereof.
"Pension Plan" means an employee pension benefit plan as
defined in Section 3(2) of ERISA (including a Title IV Plan) with respect to
which any ERISA Affiliate has any direct or indirect, fixed or contingent
liability, other than a Multiemployer Plan.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust, a Governmental Authority or
any other entity or organization.
45
<PAGE> 46
"Principal Amount" means at any time the aggregate principal
amount outstanding owed by Borrower to Lender under the Promissory Note.
"Promissory Note" means the Promissory Note of even date
herewith, as the same may be amended, supplemented or otherwise modified from
time to time.
"Purchase and Sale Agreement" means the Purchase and Sale
Agreement of even date herewith between Borrower, as purchaser, and Lender, as
seller, as the same may be amended, supplemented or otherwise modified from time
to time.
"Quarterly Date" means each March 31, June 30, September 30
and December 31.
"Real Property" has the meaning set forth in the Purchase and
Sale Agreement.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time, or any successor
regulation thereto.
"Release" shall have the same meaning and definition as set
forth in paragraph (22) of Title 42 U.S.C. Section 6903.
"Remedial Action" means all action, whether voluntary or
involuntary, necessary (i) to clean-up, remove, treat or in any other way
remediate Hazardous Substances in the Environment; (ii) to prevent the Release
of Hazardous Substances so that they do not endanger or otherwise adversely
affect the Environment or public health or welfare; or (iii) to perform
pre-remedial studies, investigations, monitoring or care on, in or under any
real property, assets or facilities.
"Reportable Quantity" means a quantity of a Hazardous
Substance that is required to be reported, upon its Release into the Environment
or otherwise, to any Governmental Authority under any applicable Environmental
Law.
"Restricted Payment" means (i) any dividend or other
distribution on any share of Borrower's capital stock (except dividends payable
solely in shares of its capital stock) or (ii) any payment by Borrower on
account of the direct or indirect purchase, redemption, retirement or other
acquisition of (a) any shares of Borrower's capital stock (except shares
acquired upon the conversion thereof into other shares of its
46
<PAGE> 47
capital stock) or (b) any option, warrant or other right to acquire shares of
Borrower's capital stock.
"Securities" means any stock, shares, voting trust
certificates, bonds, debentures, options, warrants, notes, or other evidences of
indebtedness, secured or unsecured, convertible or exchangeable, senior,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"Security Agreement" means the Security Agreement of even date
herewith, as the same may be amended, supplemented or otherwise modified from
time to time.
"Significant Subsidiary" means at any time a Subsidiary that
as of such time meets the definition of a "significant subsidiary" contained as
of the date hereof in Regulation S-X of the Securities and Exchange Commission.
"Subsidiary" means, in respect of any Person, any corporation
or other entity of which Securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other person
performing similar functions are at the time directly or indirectly owned by
such Person.
"Taxes" means any present or future taxes, charges, fees,
levies, imposts, deductions or other assessments of whatsoever nature or kind
imposed, levied, collected, withheld or assessed by any federal, state, local or
foreign taxing authority or other Governmental Authority (including income,
profits, gross receipts, sales, excise, use, ad valorem, franchise, stamp,
occupancy, estimated, capital levy, transfer, withholding, payroll, employment,
excise, occupation, premium or property taxes), together with any interest,
additions to tax or interest, and penalties or other liabilities with respect
thereto.
"Temporary Cash Investment" means any Investment in (i) direct
obligations of, or obligations guaranteed by, the United States or an agency of
the United States backed by the full faith and credit thereof, (ii) commercial
paper rated in the highest grade by a nationally recognized credit rating agency
or (iii) time deposits (including certificates of deposit) with any office
located in the United States of any
47
<PAGE> 48
bank or trust company which is organized, licensed or otherwise regulated under
the laws of the United States or any state thereof and the long-term debt
securities of which are rated at least A or its equivalent by Moody's Investors
Service, Inc. or an equivalent rating by a similar rating agency acceptable to
the Agent; provided, in each case, that such Investment matures within one year
from the date of acquisition thereof by Borrower or a Subsidiary.
"Title IV Plan" means a Pension Plan that is subject to Title
IV of ERISA.
"Unfunded Benefit Liabilities" means with respect to a Title
IV Plan the amount (if any) by which (i) the present value of all benefit
liabilities under such plan within the meaning Section 4001(a)(16) of ERISA
exceeds (ii) the fair market value of all plan assets allocable to such
liabilities, determined as of the then most recent valuation date for such plan
based on the actuarial assumptions used for plan funding in connection with that
valuation.
"White" means Steven White, a principal of Borrower.
"Wholly-Owned Subsidiaries" means, in respect of any Person,
any Subsidiaries of such Person all of the shares of capital stock or other
ownership interest of which (except, in jurisdictions in which they are
required, directors' qualifying shares or nominal promoters' shares) are at the
time directly or indirectly beneficially owned by such Person.
1.2 Accounting Terms and Determinations.
(a) Unless otherwise specified herein, all accounting
terms used herein shall be interpreted, all accounting determinations hereunder
shall be made, and all financial statements and certificates and reports as to
financial matters required to be delivered hereunder shall be prepared in
accordance with, GAAP as in effect from time to time, applied on a basis
consistent (except for changes concurred in by Borrower's independent public
accountants and disclosed in writing to Lender) with the most recent audited
consolidated financial statements of Borrower delivered to Lender. If there
shall be adopted any change in GAAP that would affect in any substantive manner
Borrower's obligations under any covenant or other provision hereunder, (i) if
Lender so requests, Borrower and Lender shall use all reasonable efforts to
agree, as promptly as practicable, upon an
48
<PAGE> 49
amendment to this Loan Agreement that will, to the extent practicable, provide
for such adjustments as may be necessary or reasonably desirable to maintain for
each of Borrower, on the one hand, and Lender, on the other, substantially
equivalent rights, duties and obligations as would have existed but for such
change in GAAP and (ii) in the absence of such a request or pending such
agreement and the adoption of such amendment, such covenant or other provision
shall be interpreted and enforced without giving effect to such change in GAAP.
(b) The accounting terms used in Section 1.1 hereof
apply to corporations generally. To the extent that Borrower, any of its
successors or any of their Affiliates are entities other than corporations, the
accounting terms employed shall be those which are most analogous to those
applied to corporations. If Lender so requests, Borrower and Lender shall use
all reasonable efforts to agree, as promptly as practicable, upon an amendment
to this Loan Agreement that will, to the extent practicable, provide for such
adjustments to one or more defined terms as may be necessary or desirable to
maintain for each of Borrower, on the one hand, and Lender, on the other,
substantially equivalent rights, duties and obligations as contemplated
hereunder.
1.3 Other Definitional Provisions. The words "hereof,"
"herein" and "hereunder" and words of similar import, when used in this Loan
Agreement or any other Loan Document, shall refer to this Loan Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
provision hereof or thereof. Unless expressly otherwise specified, references to
Sections, Schedules or Exhibits contained in this Loan Agreement refer to the
Sections of or Schedules or Exhibits to this Loan Agreement. As used in this
Loan Agreement and the other Loan Documents, the words "including" and "include"
mean including without limiting the generality of any description preceding such
term, and, for purposes of this Loan Agreement and each other Loan Document, the
parties hereto agree that the rule of ejusdem generis shall not apply to limit a
general statement that is followed by or refers to an enumeration of specific
matters to matters similar to the enumerated matters.
49
<PAGE> 50
ARTICLE 2
THE AMOUNT BORROWED
2.1 Commitment to Extend Credit. Lender agrees, on the terms
and subject to the conditions set forth in this Loan Agreement, to extend credit
to Borrower equal to the sum of SEVEN HUNDRED TWELVE THOUSAND FIVE HUNDRED AND
NO/100THS DOLLARS ($712,500.00).
2.2 Method of Borrowing. Borrower shall execute the Promissory
Note evidencing Borrower's obligation to Lender; PROVIDED, HOWEVER, that
Lender's obligations hereunder and thereunder shall not be of any force and
effect unless and until the conditions to borrowing set forth in Article 3
hereof have been fully complied with.
2.3 Maturity of Loan. The Loan shall mature, and the Principal
Amount thereof (together with all accrued and unpaid interest thereon) shall be
due and payable on __________________, 20_____.
2.4 Interest Rates.
(a) The Promissory Note shall bear interest at a rate
of Nine and One-Half Percent (9.5%) per annum on the unpaid Principal Amount
thereof, for each day from the date the Loan is made until it becomes due, is
prepaid or until Default.
(b) Default Rate. Notwithstanding the provision of
Section 2.4(a), any overdue principal and overdue interest on the Promissory
Note, and any other overdue amounts payable by Borrower under this Loan
Agreement, shall bear interest, payable on demand, for each day from the date
payment thereof was due to the date of actual payment, at a rate equal to
Thirteen and One-Half Percent (13.5%) per annum.
2.5 Fees. Borrower shall not be liable to Lender for any
financing commitment or similar fees hereunder, except as provided herein.
2.6 Payment of Principal and Interest. Borrower shall pay
principal and interest in thirty-six (36) monthly payments as follows:
50
<PAGE> 51
(a) the first thirty-five (35) monthly payments shall
be Six Thousand Six Hundred Forty-One and 43/100ths Dollars ($6,641.43) per
month and shall be due and payable on the first day of each calender month with
the first of such monthly payments being due and owing on ___________, 2000 and
the last of such monthly payments being due and owing on ______________, 2003;
and
(b) the thirty-sixth (36th) monthly payment shall be
Six Hundred Seventy-Seven Thousand Six Hundred Forty- Two and 30/100ths Dollars
($677,642.30), and shall be due and owing on ______________, 2003.
2.7 Optional Prepayments.
(a) Borrower may prepay in full or in part at any
time without penalty or premium the Principal Amount of the Promissory Note then
outstanding.
(b) Each such optional prepayment shall be applied to
installments due in reverse order of their maturity.
2.8 General Provisions as to Payments.
(a) Borrower shall make each payment of principal and
interest, and of fees, if any, hereunder, not later than 11:00 A.M. (New York
City time) on the date when due, by check or in federal or other dollar funds
available on the same day in New York City, to Lender at the following address:
Reeves Telecom Limited Partnership
3142 George II Highway
Boiling Spring Lakes, NC 28461,
or to such other address as Lender may advise Borrower in writing pursuant to
Section 8.1 hereof.
(b) Whenever any payment of principal and interest,
and of fees, if any, hereunder, shall be due on a day that is not a Business
Day, the date for payment thereof shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar quarter, in
which case the date for payment thereof shall be the next preceding Business
Day. If the date for any payment of principal is
51
<PAGE> 52
extended by operation of law or otherwise, interest thereon shall be payable for
such extended time.
(c) Each monthly installment shall be applied as
follows: first, to any costs and expenses (including reasonable attorneys fees)
payable to Lender hereunder; second, to payment of interest then accrued and due
on the unpaid principal balance; and, third, with the remainder applied to the
unpaid principal.
2.9 Taxes.
(a) Any and all payments by Borrower hereunder or
under the Promissory Note shall be made free and clear of, and without deduction
for, or on account of, any Taxes imposed by means of withholding at the source
unless Lender has provided Borrower with two (2) duly executed copies of either
IRS Form 1001 or 4224 (or any successor form) claiming exemption from
withholding with respect to such payment; provided, however, that such provision
shall not apply if the failure by Lender to provide such information results
solely from an amendment to, or a change in any applicable law or regulation or
in the interpretation thereof by any regulatory authority (whether or not having
the force of law) or any judicial authority, or by request or ruling applicable
to Lender of any Governmental Authority charged with the interpretation or
administration of any law, which amendment or change is enacted, promulgated or
otherwise comes into force or effect after the date hereof (all such
non-excluded Taxes being hereinafter referred to as "Non-Excluded Taxes"). If
Borrower shall be required by law to deduct any Non-Excluded Taxes from or in
respect of any sum payable hereunder or under the Promissory Note to Lender, the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.9) Lender receives an amount, after taking account of all
Taxes and Other Taxes payable with respect to such additional amount, equal to
the sum it would have received had no such deductions been made. If Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under the Promissory Note to Lender, (i) Borrower shall
make such deductions, (ii) Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable law
and (iii) Borrower shall send to Lender a certified copy of the original
official receipt received by Borrower evidencing payment thereof. If Borrower
fails to deduct and pay over any such Taxes when due to the
52
<PAGE> 53
appropriate taxing authority or fails to remit to Lender any receipts or other
required documentary evidence possessed by Borrower, Borrower shall indemnify
Lender for any incremental Taxes that may become payable by Lender and all costs
and expenses related thereto (including reasonable attorneys fees and expenses)
as a result of any such failure.
(b) In addition, Borrower agrees to pay any present
or future stamp or documentary taxes or any other excise or property taxes,
recording or other charges or similar levies of the United States, any State or
any political subdivision thereof, or any foreign jurisdiction which arise from
any payment made hereunder or under the Promissory Note or from the execution,
delivery or registration of, or otherwise with respect to, this Loan Agreement
or the Promissory Note or any other Loan Document (hereinafter referred to as
"Other Taxes").
2.10 Maximum Interest Rate.
(a) Nothing contained in this Loan Agreement or the
Promissory Note shall require Borrower to pay interest at a rate exceeding the
maximum rate permitted by applicable law.
(b) If the amount of interest payable to Lender on
any payment due date would exceed the maximum amount permitted by applicable law
to be charged by Lender to Borrower, the amount of interest payable to Lender on
such payment due date shall be automatically reduced to such maximum permissible
amount.
(c) If the amount of interest payable to Lender in
respect of any payment due date is reduced pursuant to clause (b) of this
Section and the amount of interest payable in respect of any subsequent payment
due date would be less than the maximum amount permitted by applicable law to be
charged by Lender, then the amount of interest payable to Lender in respect of
such subsequent payment due date shall be automatically increased to such
maximum permissible amount; provided that at no time shall the aggregate amount
by which interest paid to Lender has been increased pursuant to this clause (c)
exceed the aggregate amount by which interest paid to Lender for its account has
theretofore been reduced pursuant to clause (b) of this Section.
53
<PAGE> 54
ARTICLE 3
CONDITIONS TO BORROWING
The obligation of Lender to extend credit to Borrower
hereunder shall be subject to the satisfaction of the following conditions
precedent:
(a) the representations and warranties of Borrower
contained in this Loan Agreement and each other Loan Document shall be true and
correct on and as of the date of this Loan Agreement, and on and as of the
Closing Date;
(b) each covenant and other agreement that this Loan
Agreement and each other Loan Document provides shall be performed or complied
with by Borrower on or before the Closing Date;
(c) Lender shall have received duly executed copies
of each of the other Loan Documents;
(d) Lender shall have received all documents it may
reasonably request (including officer's and secretary's certificates, incumbency
certificates and organizational instruments) relating to the existence and
creditworthiness of Borrower, the authority for and the validity of this Loan
Agreement and the other Loan Documents, and any other matters relevant hereto,
all in form and substance satisfactory to Lender; and
(e) No law, rule or regulation shall prohibit, and no
order, judgment, injunction or decree of any Governmental Authority shall enjoin
or otherwise restrain Lender from making, the Loan.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants that:
4.1 Existence. Borrower is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
South Carolina and is qualified to do business in the State of North Carolina.
4.2 Power. Borrower has the power and authority to execute and
deliver this Loan Agreement, and to perform its obligations hereunder and to
consummate the transactions provided for herein and in the Purchase and Sale
Agreement,
54
<PAGE> 55
and with respect to them. Such execution, delivery, performance and consummation
have been duly authorized by all necessary action on the part of Borrower, and
will not contravene the Operating Agreement of Borrower or conflict with, result
in breach of, or entitle any party to terminate or call a material default with
respect to, any agreement or instrument to which Borrower is a party or by which
Borrower or its properties are bound.
4.3 Litigation. Borrower has no knowledge of any claim,
litigation or proceeding pending or threatened against Borrower which if decided
adversely to Borrower, would preclude Borrower from consummating the
transactions contemplated by this Loan Agreement, the Purchase and Sale
Agreement or any other Loan Document, or would subject Borrower to any
liability.
4.4 No Default. The execution and performance of this Loan
Agreement and the other Loan Documents by Borrower does not, and will not,
conflict with or result in a breach, or violate any of the terms, of any
agreement, instrument, judgment, decree, or order to which Borrower is a party
or by which it is or may be bound, or constitute a default thereunder.
4.5 Binding Obligation. This Loan Agreement has been duly and
validly executed and delivered by Borrower and constitutes, and the other Loan
Documents to which it is a party when executed and delivered in accordance with
this Loan Agreement will constitute, legal, valid and binding obligations of
Borrower enforceable against Borrower in accordance with their respective terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency
or other similar laws affecting the enforcement of creditors' rights generally
and by equitable principles relating to the availability of equitable remedies.
4.6 No Prior Existence. Borrower was formed in 2000 for the
sole purpose of acquiring all of the real property and other assets as set forth
in and as contemplated by the Purchase and Sale Agreement. At the time of
Closing, Borrower shall have no substantial assets or liabilities, whether
contingent or otherwise, except for the assets and liabilities resulting from
the transaction contemplated by the Purchase and Sale Agreement.
55
<PAGE> 56
4.7 Taxes. Borrower has timely and properly filed all Tax
returns, reports or statements that are required to be filed by it and has paid
all Taxes due pursuant to such returns, reports or statements. Borrower has paid
all Taxes due and payable (including those Taxes pursuant to any assessment
received by Borrower), except for Taxes being contested in good faith by proper
proceedings, diligently conducted, and against which adequate reserves in
accordance with GAAP are being maintained. The charges, accruals and reserves on
the books of Borrower in respect of Taxes or other governmental charges are, in
the reasonable opinion of Borrower, adequate. Borrower will furnish to Lender
(i) on or before the Closing Date a copy of all United States federal income tax
returns of Borrower, or (ii) a certificate of Borrower's chief financial officer
or chief accounting officer that no such tax returns have been filed, citing the
lawful reasons therefor and that, notwithstanding the fact the Borrower has
filed no such tax returns, Borrower is in full compliance with all provisions of
the Code pertaining to filing of such tax returns. Borrower is not a party to,
or bound by, or obligated under, any tax sharing or similar agreement.
4.8 Subsidiaries. Borrower does not have as of the date hereof
and as of the Closing Date, nor has it ever had, any Subsidiaries.
4.9 Liens. There are no Liens of any nature whatsoever in
existence on the date hereof on any assets of Borrower.
4.10 Debt. Borrower is not on the date hereof indebted under
or subject to any Debt other than Debt incurred hereunder and under the other
Loan Documents.
4.11 Margin Regulations. Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying Margin
Stock.
4.12 Environmental Matters. The operations of Borrower
complies in all material respects with all applicable Environmental Laws.
Borrower has obtained all material environmental, health and safety permits,
licenses and approvals necessary for its operations, all such permits, licenses
and approvals are in effect, no appeal is pending therefrom and no action to
revoke the same is pending, and Borrower is in compliance with all material
terms and conditions thereof. Borrower has provided to Lender a copy of
56
<PAGE> 57
all written notifications or reports received by it from any Governmental
Authority or other Person, or provided by it to any Governmental Authority or
other Person, relating to the existence of any Hazardous Substance in, on or
under, or the Release or threatened Release of any Hazardous Substance from, in,
on or under, any real property, assets or facilities currently or previously
owned, leased or operated by Borrower, or any predecessor thereof, in respect of
which Borrower may be required to take any Remedial Action or may incur any
Environmental Liabilities and Costs that, individually or in the aggregate,
could have a Material Adverse Effect in respect of Borrower. Borrower is not
subject to any judicial or administrative proceedings or any outstanding written
notice, order, judgment or decree from or agreement with any Governmental
Authority or other Person, or has received notice of any pending investigation
by any Governmental Authority or other Person, relating to any violation or
alleged violation of any Environmental Law or in respect of which it may be
required to take any Remedial Action or may incur any Environmental Liabilities
and Costs that, individually or in the aggregate, could have a Material Adverse
Effect in respect of Borrower. To the knowledge of Borrower, there has not been
a Release into the Environment of a Hazardous Substance in, on or under any real
property, asset or facility currently or previously owned, leased or operated by
Borrower or owned, leased or operated by any other Person and utilized by
Borrower for the treatment, storage or disposal of a Hazardous Substance, which
Release could result in Remedial Action or the incurrence by Borrower of
Environmental Liabilities and Costs that could, individually or in the
aggregate, have a Material Adverse Effect in respect of Borrower. There is not,
in, on or under the real property, assets or facilities currently or previously
owned, leased or operated by Borrower, (1) any underground storage tank,
landfill or surface impoundment, (2) any friable asbestos-containing material
(as defined by the Toxic Substances Control Act), (3) any polychlorinated
biphenyls used in hydraulic oils, electrical transformers or other equipment, or
(4) any Hazardous Substances except in such quantities as are handled in
accordance with all applicable manufacturer's instructions and governmental
regulations and are stored in proper storage containers.
4.13 Not an Investment Company or Holding Company. Borrower is
not an "investment company" within the meaning of the Investment Company Act of
1940, as amended, or a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
57
<PAGE> 58
4.14 Full Disclosure. There is no fact that Borrower has not
disclosed in writing to Lender that has had a Material Adverse Effect on or, as
far as Borrower can now reasonably foresee, will have a Material Adverse Effect
on Borrower. The documents and other information furnished by or on behalf of
Borrower to Lender in connection with the transactions contemplated hereby or in
the other Loan Documents do not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained therein not misleading.
ARTICLE 5
COVENANTS
Borrower agrees that, so long as any amount owing hereunder or
under any other Loan Document remains unpaid:
5.1 Information. Borrower will deliver to Lender:
(a) as soon as practicable and in any event within
ninety (90) days after the end of each fiscal year of Borrower, a review opinion
(not an opinion audit) containing a consolidated balance sheet of Borrower as of
the end of such fiscal year and the related consolidated statements of income,
stockholders equity and cash flow for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, prepared in
accordance with generally accepted accounting principles consistently applied
and reported on by a review report without qualification by Borrower's
independent public accountants of standing acceptable to Lender;
(b) as soon as practicable and in any event within
forty-five (45) days after the end of each of the first three (3) quarters of
each fiscal year of Borrower, a consolidated balance sheet of Borrower as of the
end of such quarter and the related consolidated statements of income,
stockholders' equity and cash flow for such quarter and for the portion of
Borrower's fiscal year ended at the end of such quarter, setting forth in each
case in comparative form the figures for the corresponding quarter and the
corresponding portion of Borrower's previous fiscal year, all certified (subject
to normal year-end adjustments) as to fairness of presentation, generally
accepted accounting principles and consistency by the chief financial officer or
the chief accounting officer of Borrower;
58
<PAGE> 59
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b) above, a certificate of
the chief financial officer or the chief accounting officer of Borrower (i)
setting forth in reasonable detail the calculations required to establish
whether Borrower was in compliance with the requirements of Section 5.17 on the
date of such financial statements and (ii) stating whether there exists on the
date of such certificate any Default and, if any Default then exists, setting
forth the details thereof and the action Borrower is taking or proposes to take
with respect thereto;
(d) simultaneously with the delivery of each set of
financial statements referred to in clause (a) above, a statement of the firm of
independent public accountants that reported on such statements (i) whether
anything has come to their attention to cause them to believe that there existed
on the date of such statements any Default and (ii) confirming the calculations
set forth in the officer's certificate delivered simultaneously therewith
pursuant to clause (c) above;
(e) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b) above, a description in
reasonable detail of any material variation between the application of
accounting principles employed in the preparation of such statements and the
application of accounting principles employed in the preparation of the next
preceding annual or quarterly financial statements of Borrower and estimates of
the difference between such statements arising as a consequence thereof;
(f) forthwith upon the occurrence of any Default, a
certificate of the chief financial officer or the chief accounting officer of
Borrower setting forth the details thereof and the action Borrower is taking or
proposes to take with respect thereto;
(g) upon the mailing thereof to the shareholders or
debtholders of Borrower generally, copies of all financial statements, reports
and proxy statements so mailed;
(h) promptly after receiving notice or otherwise
becoming aware thereof, notice of the institution of, or the occurrence of any
material adverse change in the status or likely result of, any action, suit,
proceeding or
59
<PAGE> 60
investigation before or by any Governmental Authority that could, individually
or together with any other such actions, suits, proceedings or investigations,
have a Material Adverse Effect with respect to Borrower;
(i) prompt notice of (1) the receipt of any written
notice or report received by Borrower from a Governmental Authority or any other
Person to the effect that Borrower is or may be liable to any Person as a result
of the Release or threatened Release of any Hazardous Substance into the
Environment; (2) the submission of any written notice or report provided by or
on behalf of Borrower to any Governmental Authority relating to any Remedial
Action with respect to, or Release or threatened Release of any Hazardous
Substance into, the Environment in, on or under any real property, asset or
facility of Borrower; (3) the receipt of any written notice that all or any
portion of any asset of Borrower is subject to a Lien under or pursuant to any
Environmental Law; (4) the receipt of any written notice of the commencement of
any judicial or administrative proceeding alleging a violation of any
Environmental Law by Borrower or with respect to any real property, asset or
facility owned, leased or operated thereby; (5) the existence of any condition
with respect to the real properties, assets or facilities of Borrower that is
reasonably likely to result in a violation of any Environmental Law, the
undertaking of any Remedial Action or the incurrence of material Environmental
Liabilities or Costs by Borrower; (6) the commencement of any activities to
comply with any Environmental Law, or as a result of any proposed changes to any
Environmental Law, that are reasonably likely in either case to result in the
incurrence of material Environmental Liabilities or Costs by Borrower; and
(j) from time to time such additional information
regarding Borrower as Lender may reasonably request.
5.2 Conduct of Business and Maintenance of Existence. White
and his successors, each of whom shall be, to Lender's reasonable satisfaction,
experienced in managing a golf course and country club, shall manage the Club on
behalf of Borrower as a golf course and country club in a professional manner
consistent with industry practice. Borrower will continue to operate the Club as
of the Closing, and will preserve, renew and keep in full force and effect its
corporate existence and its rights, privileges and franchises necessary or
desirable in the normal conduct of business. Borrower will refrain from engaging
to any material extent in any business other than the Club and other businesses
closely
60
<PAGE> 61
related or incidental thereto. Borrower will not engage principally, or as one
of its important activities, in the business of extending credit for the purpose
of purchasing or carrying any Margin Stock.
5.3 Compliance with Laws. Borrower will comply in all material
respects with all applicable laws, ordinances, rules, regulations, and
requirements of Governmental Authorities (including ERISA and the rules and
regulations thereunder and all Environmental Laws) except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings
diligently conducted.
5.4 Inspection of Property, Books and Records. Borrower will
keep proper books of record and account in which full, true and correct entries
in conformity with GAAP shall be made of all material dealings and transactions
in relation to its business and activities; and will permit representatives of
Lender to visit and inspect the Club and any other of its properties, to examine
and make abstracts from any of its books and records and to discuss its affairs,
finances and accounts with its officers, employees and independent public
accountants, all at such reasonable times and as often as may reasonably be
desired.
5.5 Maintenance of Assets; Insurance. Borrower will keep all
assets of the Club useful and necessary in its business in good working order
and condition, ordinary wear and tear excepted; will maintain, with insurance
companies having a Bests rating of A or higher, insurance on all its assets,
with loss payable to Lender, in at least such amounts and against at least such
risks as are usually insured against in the same general area by companies of
established repute engaged in the same or a similar business; and will furnish
to Lender, upon written request, full information as to the insurance carried.
No such insurance policy shall be cancellable or subject to reduction of
coverage or other modification except after thirty (30) days' prior written
notice to Lender. Borrower shall, at least thirty (30) days prior to the
expiration of such policies, furnish Lender with renewals or "binders" thereof,
or lender may order such insurance and charge the cost thereof to Borrower,
which amount shall be payable by Borrower upon demand. Borrower shall not do or
permit to be done anything which shall invalidate such policies.
5.6 Payment of Taxes. Borrower will pay and discharge, before
the same shall become delinquent, all Taxes,
61
<PAGE> 62
assessments and other governmental charges or levies, imposed upon it, the Club
or any of the Assets or in respect of the Club, its business or income except
for those being contested in good faith by proper proceedings diligently
conducted and against which adequate reserves, in accordance with GAAP, have
been established.
5.7 Transactions with Affiliates. Borrower will not directly
or indirectly pay any funds to or for the account of, make any Investment in,
incur any Contingent Liability for or otherwise agree to pay any Debt or other
obligation of, sell, lease, transfer or otherwise dispose of any assets, to,
purchase, lease or otherwise acquire any assets from, or participate in or
effect any transaction in connection with any joint enterprise or other joint
arrangement with, any Affiliate of Borrower; provided, however, that
notwithstanding the provisions of this Section, (a) Borrower may make a
Restricted Payment permitted by Section 5.9 hereof and (b) Borrower may make
sales to or purchases from, and render services to or receive services from, any
Affiliate and, in connection therewith, extend credit or make payments, if (i)
such sales or purchases are made or such services are rendered in the ordinary
course of business and on terms and conditions at least as favorable to Borrower
as the terms and conditions that would apply in a similar transaction conducted
on an arm's-length basis with a Person not an Affiliate and (ii) Borrower
provides at least five (5) Business Days' prior written notice thereof to
Lender.
5.8 Pension Plans, etc. Borrower shall not create or suffer to
exist, any Unfunded Benefit Liability.
5.9 Restricted Payments. Borrower will not declare or make any
Restricted Payment unless (i) no Default shall have occurred and be continuing
and (ii) after giving effect thereto, no Default will exist.
5.10 Investments. Borrower will not make or acquire any
Investment in any Person other than Temporary Cash Investments.
5.11 Consolidations, Mergers and Sales of Assets. Borrower
will not (i) consolidate or merge with any other Person or (ii) sell, lease or
otherwise transfer all or any substantial part of the Club, the Assets, or any
of Borrower's other assets to any other Person.
62
<PAGE> 63
5.12 Subsidiaries. Borrower shall not create or otherwise
establish any Subsidiary having as its purpose any business other than in
connection with the Club or the Assets without the prior written approval of
Lender, which approval shall not be unreasonably withheld. For the purposes of
the foregoing, Lender may reasonably withhold its approval upon its reasonable
belief that, after giving effect to the establishment of any Subsidiary,
Borrower would be, or at any time on or prior to the maturity date of the
Promissory Note, is likely to be, in Default. Upon the establishment of one or
more Subsidiaries, each of Borrower's obligations and covenants hereunder and
under the other Loan Documents shall apply equally to each such Subsidiary,
except that (i) the financial reporting requirements after the Closing Date set
forth in Section 5.1 hereof shall involve consolidated reports of Borrower and
its Subsidiaries in conformity with GAAP, and (ii) the financial covenants set
forth in Section 5.17 hereof shall apply to Borrower on a consolidated basis.
5.13 Negative Pledge. Borrower will not create, assume or
suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:
(a) Liens created by the Loan Documents;
(b) Liens for Taxes, statutory Liens of landlords and
Liens of carriers, warehousemen, mechanics and materialmen, in each case only to
the extent the obligations thereto are not yet due or are being contested in
good faith by appropriate proceedings diligently pursued; Liens to secure the
performance of tenders, bids, statutory obligations or government contracts, and
similar Liens not securing Debt and arising in the ordinary course of business;
provided that the aggregate dollar amount of obligations secured by all such
Liens (other than Liens for Taxes not yet due) does not exceed $100,000.00
(collectively, "Ordinary Course Encumbrances"); or
(c) any Lien on any asset securing Debt incurred or
assumed for the sole purpose of financing all or any part of the cost of
acquiring such asset, provided that such Lien attaches to such asset
concurrently with or within ninety (90) days after the acquisition thereof.
5.14 Restriction on Debt. Except as provided within the
Section, Borrower shall not issue, assume or otherwise incur any Debt other than
in respect of this Loan Agreement and the Promissory Note without Lender's prior
63
<PAGE> 64
written approval, which approval shall not be unreasonably withheld.
5.15 Lease Payments. Borrower will not incur or assume any
liability (including any Contingent Liability) for rental payments under a lease
with a lease term (as defined in Financial Accounting Standards Board Statement
No. 13, as in effect on the date hereof) of three (3) years or more if, after
giving effect thereto, the aggregate amount of minimum lease payments in respect
of which Borrower is obligated will exceed, on a consolidated basis, $100,000.00
for any calendar year under all such leases (excluding Capital Leases).
5.16 Capital Expenditures; Acquisitions.
(a) Borrower will not make Capital Expenditures in
any fiscal year in excess of $100,000.00 without the prior written approval of
Lender, which approval shall not be unreasonably withheld; provided, however,
that to the extent Capital Expenditures are made in any fiscal year in an amount
less than the maximum amount permitted for such year as provided hereinabove,
the Capital Expenditures that Borrower may make in the next following year shall
be increased by one hundred percent (100%) of the amount of the permitted
Capital Expenditures not so made in the immediately preceding year but in no
event shall Borrower make Capital Expenditures in any fiscal year in excess of
$120,000.00 without the prior written approval of Lender, which approval shall
not be unreasonably withheld.
(b) Borrower will not, without the prior written
approval of Lender, which approval shall not be unreasonably withheld, acquire
any Person or any business (whether pursuant to a merger, an acquisition of
stock or assets, or otherwise). Notwithstanding the foregoing, Borrower will not
acquire any Person or business unless (i) no Default shall have occurred and be
continuing, or would occur upon the consummation of (and giving effect to) such
acquisition, and (ii) prior to such acquisition Borrower shall have delivered to
Lender consolidated pro forma financial statements, giving effect to the
consummation of such acquisition as of the date of the most recent financial
statements delivered pursuant to Section 5.1, evidencing compliance, on a pro
forma basis, with the covenants set forth in Section 5.17 hereof.
5.17 Financial Covenants.
64
<PAGE> 65
(a) Working Capital. Unless a national disaster or
Act of God occurs, consolidated Current Assets will at no time be less than 100%
of Consolidated Current Liabilities, and Consolidated Working Capital will at no
time be less than $15,000.00.
(b) Long-Term Debt. Long-Term Debt of Borrower will
at no time exceed 700% of Consolidated Tangible Net Worth.
(c) Minimum Consolidated Tangible Net Worth. Borrower
will not permit Consolidated Tangible Net Worth during any calendar year to be
less than $100,000.00.
(d) Maximum Leverage Ratio. Borrower will not permit
the ratio of (i) consolidated Debt to (ii) Consolidated Tangible Net Worth
during any calendar year to be more than 10:1.
(e) Minimum Cash Flow/Fixed Changes Ratio. Borrower
will not permit the ratio of (i) Cash Flow of Borrower to (ii) Fixed Charges of
Borrower during any calendar year to be less than 1:1.
5.18 Use of Credit. The Loan shall be used by Borrower solely
to complete its purchase of the Club pursuant to the Purchase and Sale
Agreement.
ARTICLE 6
DEFAULTS
6.1 Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) Borrower shall fail to pay when due any principal
of or interest on the Promissory Note, or shall fail to pay within thirty (30)
Business Days of the due date thereof any fees or any other amount payable
hereunder or under any other Loan Document;
(b) Borrower shall fail to observe or perform any
covenant contained in Section 5.9, 5.10, 5.11, 5.12, 5.13, 5.14, 5.15, 5.16, and
5.17;
(c) Borrower shall fail to observe or perform any
covenant or agreement contained in this Loan Agreement or
65
<PAGE> 66
in any other Loan Document (other than those covered by clauses (a) or (b)
above) and such failure shall continue for thirty (30) days after Borrower shall
have knowledge or notice of such failure;
(d) any representation, warranty, certification or
statement made by or on behalf of Borrower in this Loan Agreement or in any
other Loan Document or in any certificate, financial statement or other document
delivered pursuant hereto or thereto shall prove to have been incorrect in any
material respect when made;
(e) Borrower shall fail to make any payment in
respect of any Debt (other than the Notes) when due or within any applicable
grace period, the outstanding principal amount of which Debt equals or exceeds
$10,000.00;
(f) any event or condition shall occur that results
in the acceleration of the maturity of any Debt of Borrower, the principal
amount of which Debt equals or exceeds $10,000.00, or enables the holder of such
Debt or any Person acting on such holder's behalf to accelerate the maturity
thereof;
(g) Borrower shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be
commenced against Borrower seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of sixty (60) days; or an
order for
66
<PAGE> 67
relief shall be entered against Borrower under any such laws as now or hereafter
in effect;
(i) a judgment, order or arbitral award for the
payment of money in excess of $10,000.00 shall be rendered against Borrower and
such judgment, order or arbitral award shall continue unsatisfied and unstayed
for a period of thirty (30) days;
(j) any Loan Document shall cease to be in full force
or effect, or any party thereto (other than Lender) shall so assert and such
condition shall continue for thirty (30) days after Borrower is given written
notice of same by Lender;
then, and in every such event, Lender shall by notice to Borrower declare the
Promissory Note (together with accrued interest thereon) and all other
obligations to Lender under the Loan Documents to be, and the Promissory Note
and all such other obligations shall thereupon become, immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by Borrower; provided that, in the case of any of the
Events of Default specified in paragraph (g) or (h) above with respect to
Borrower, without any notice to Borrower or any other act by Lender the
Promissory Note (together with accrued interest thereon) and all such other
obligations shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
Borrower.
6.2 Notice of Default. Lender shall give notice to Borrower
under Sections 6.1(c) and (d) promptly.
ARTICLE 7
SECURITY FOR LOAN
The Loan contemplated by this Loan Agreement shall be secured
by:
(a) the execution and delivery by the Borrower of:
(i) a Deed of Trust in the form annexed hereto as
Exhibit A,
(ii) a Security Agreement in the form annexed hereto
as Exhibit B, and
67
<PAGE> 68
(iii) the Form UCC-1 Financing Statement (the
"UCC-1") in the form annexed hereto as Exhibit C; and
(b) the filing and recording of the UCC-1 in such governmental
offices in North Carolina as are required by the applicable laws of the State of
North Carolina to perfect Lender's security interest in the personal property
described in the Security Agreement.
ARTICLE 8
MISCELLANEOUS
8.1 Notices. All notices, requests and other communications to
any party hereunder shall be in writing and shall be given to such party at its
address set forth as follows:
NOTICES TO LENDER shall be sent to:
Grace Property Management, Inc.
P.O. Box 163
Glen Head, NY 11545
ATTN: Mr. Davis P. Stowell, Vice President
With a required copy to:
Thomas L. Seifert, P.C.
515 Madison Avenue, Suite 2600
New York, NY 10022
NOTICES TO BORROWER shall be sent to:
ATTN: Steven White
WW-Golf & Services, LLC
2534 B West Palmetto Street
Florence, SC 29501
With a required copy to:
Dalton B. Floyd, Jr., Esquire
The Floyd Law Firm PC
P.O. Drawer 14607
Surfside Beach, SC 29587-4607
68
<PAGE> 69
Each such notice, request or other communication shall be effective (i) if given
by mail, three (3) Business Days after such communication is deposited in the
mails with first class (or, in the case of international mail, airmail) postage
prepaid, addressed as aforesaid, (ii) if given by U.S. Postal Service Express
Mail, Federal Express or other nationally recognized next day delivery service,
one (1) Business Day after such communication is deposited with such service
cost prepaid, addressed as aforesaid, or (iii) if delivered by hand, when
delivered at the address specified in this Section with receipt of delivery
signed by the recipient.
8.2 No Waivers. No failure or delay by Lender in exercising
any right, power or privilege hereunder or under any other Loan Document shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
8.3 Expenses; Indemnification.
(a) Lender and Borrower shall each pay their own
out-of-pocket expenses, including the reasonable fees, disbursements and other
charges of their respective counsel, in connection with the preparation of this
Loan Agreement, the other Loan Documents and any related instruments and
documents, any waiver or consent hereunder or thereunder or any amendment hereof
or thereof, and the consummation of the transactions contemplated hereby.
(b) Borrower shall pay all out-of-pocket expenses,
including the reasonable fees, disbursements and other charges of counsel
(including allocated costs of in- house counsel), incurred by Lender in
connection with (i) any default or alleged default by Borrower under this Loan
Agreement, the other Loan Documents, and any related instruments and documents,
and (ii) any Event of Default and collection and other enforcement proceedings
resulting therefrom.
(c) Borrower agrees to indemnify and hold harmless
Lender and its officers, directors, employees, agents, and partners, and the
officers, directors, employees,
69
<PAGE> 70
agents, and owners of Lender's general partner, from and against any and all
liabilities, losses, damages, costs and expenses of any kind (including
Environmental Liabilities and Costs and including the fees, disbursements and
other charges of counsel (including allocated costs of in-house counsel) in
connection with any investigative, administrative or judicial proceeding,
whether or not Lender or other indemnified person is a party thereto) that may
be suffered or incurred by any such indemnified person, relating to or arising
out of this Loan Agreement or any other Loan Document, or the exercise by Lender
of any right or remedy hereunder or thereunder, and Borrower agrees to reimburse
Lender and each other indemnified person from time to time upon demand for any
such liabilities, losses, damages, costs and expenses; provided, that no
indemnified person shall have the right to be indemnified hereunder for its own
negligence or willful misconduct as determined by a court of competent
jurisdiction. The foregoing indemnity shall: (i) survive the repayment in full
of the Loan, (ii) not be limited in amount, even if the amount owing hereunder
exceeds the aggregate amount of the Loan, and (iii) not be affected by any
investigation or actual or constructive knowledge of Lender or any other
indemnified person.
8.4 Amendments and Waivers. Any provision of this Loan
Agreement or the Promissory Note may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by Borrower and Lender.
8.5 Successors and Assigns. The provisions of this Loan
Agreement shall be binding upon and inure to the benefit of Borrower, Lender and
their respective successors and assigns, except that Borrower may not assign or
otherwise transfer any of its rights or obligations under this Loan Agreement or
any other Loan Document.
8.6 North Carolina Law; Interpretation.
(a) This Loan Agreement and each other Loan Document
shall be construed in accordance with and governed by the law of the State of
North Carolina.
(b) No provision of this Loan Agreement or any other
Loan Document shall be construed against or interpreted to the disadvantage of
either Borrower or Lender having, or being deemed to have, structured or
dictated such provision, the parties hereto acknowledging that the parties have
jointly
70
<PAGE> 71
participated in the negotiation, drafting and preparation of this Loan Agreement
and the other Loan Documents.
8.7 Jurisdiction.
(a) Any action or proceeding against Borrower
relating in any way to this Loan Agreement or other Loan Document may be brought
and enforced in the courts of the State of North Carolina or of the United
States for the Eastern District of North Carolina, and Borrower irrevocably
consents to the jurisdiction of each such court in respect of any such action or
proceeding. Borrower further irrevocably consents to the service of process in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, return receipt requested, to Borrower at its
address as provided for notices hereunder. The foregoing shall not limit the
right of Lender to serve process in any other manner permitted by law or to
obtain execution of any judgment, in any other jurisdiction.
(b) Borrower hereby irrevocably waives any objection
that it may now or hereafter have to the laying of venue of any action or
proceeding arising under or relating to this Loan Agreement or any other Loan
Document in any court located in Brunswick County, North Carolina, or in
Wilmington, North Carolina, and hereby further irrevocably waives any claim that
a court located in either of such sites is not a convenient forum for any such
action or proceeding.
8.8 WAIVER OF JURY TRIAL. LENDER AND BORROWER HEREBY
IRREVOCABLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED UPON, OR ARISING OUT OF, THIS LOAN AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS OR ACTIONS OF
LENDER OR BORROWER RELATING THERETO.
8.9 Counterparts; Effectiveness. This Loan Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Loan Agreement shall become effective when each party shall
have received counterparts hereof signed by all of the parties hereto.
8.10 Severability. In the event that any provision of this
Loan Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of
71
<PAGE> 72
the remaining provisions shall not in nay way be affected or impaired thereby.
8.11 Construction; Captions.
(a) All pronouns and any variations thereof shall be
deemed to refer to masculine, feminine, neuter, singular or plural, as the
identity of the person or persons may require.
(b) Paragraph headings and captions are inserted for
convenience only, and shall not be deemed to constitute a part of this Loan
Agreement.
72
<PAGE> 73
IN WITNESS WHEREOF, the parties hereto have caused this Loan
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
BORROWER:
WW-GOLF & SERVICES, LLC
By ____________________________
Name: Steven White
Title: President
LENDER:
REEVES TELECOM LIMITED
PARTNERSHIP
By ____________________________
Name: Davis P. Stowell
Title: Vice President of
Grace Property
Management, Inc.,
general partner
73
<PAGE> 74
EXHIBIT "H"
LIST OF MEMBERS OF FOX SQUIRREL COUNTRY CLUB
[LIST OF MEMBERS
NOT INCLUDED WITH EXHIBIT TO FORM 10-Q]
74
