1
STATE OF NORTH CAROLINA )
) LOAN AGREEMENT
COUNTY OF BRUNSWICK )
THIS LOAN AGREEMENT (the "Loan Agreement") is made and entered
into this 9th day of March, 2001, by and between WW-Golf & Services, LLC, a
South Carolina limited liability company (hereinafter referred to as "Borrower")
and Xxxxxx 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 controlled 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 the direction of the management and policies of such
other Person, whether through the ownership of voting securities, by contract or
otherwise.
-1-
2
"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 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
-2-
3
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 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
-3-
4
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 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
-4-
5
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,
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
-5-
6
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 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
-6-
7
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
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.
"Indemnification Agreement" means the Indemnification
Agreement of even date herewith, as the same may be amended, supplemented or
otherwise modified from time to time.
"Investment" means any investment in any Person, whether by
means of purchase of stock or other securities, loan, capital contribution or
otherwise.
-7-
8
"Lender" means Xxxxxx 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, the Indemnification Agreement, and the 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 (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.
-8-
9
"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.
"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 dated October 18, 2000 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.
-9-
10
"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 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
-10-
11
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 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 Xxxxx'x 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 Xxxxxx Xxxxx, 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
-11-
12
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 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
-12-
13
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.
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 March 9, 2004, except as may be extended pursuant to the
Indemnification Agreement.
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
-13-
14
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:
(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 ninth (9th) day of each calender
month with the first of such monthly payments being due and owing on April 9,
2001 and the last of such monthly payments being due and owing on February 9,
2004; 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 March 9, 2004;
provided, however, that if the maturity date of the Loan is extended by Borrower
pursuant to the terms and subject to the conditions of the Indemnification
Agreement (but in no event more than twenty (20) years from the date hereof),
Borrower shall continue to make monthly payments in the amount of Six Thousand
Six Hundred Forty-One and 43/100ths Dollars ($6,641.43) per month, payable on
the ninth (9th) day of each calender month, until the maturity date, at which
time the amount of the monthly payment shall be equal to the sum of (a) the
Principal Amount, and (b) interest equal to the Principal Amount multiplied by a
fraction, the numerator of which is the interest rate set forth in Section 2(a)
hereof and the denominator of which is twelve (12).
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.
-14-
15
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:
Xxxxxx Telecom Limited Partnership
0000 Xxxxxx XX Xxxxxxx
Xxxxxxx Xxxxxx Xxxxx, XX 00000,
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 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
-15-
16
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 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
-16-
17
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.
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.
-17-
18
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, 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
-18-
19
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.
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
-19-
20
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
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.
-20-
21
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;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b) above,
-21-
22
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 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;
-22-
23
(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 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,
-23-
24
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, 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,
-24-
25
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.
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
-25-
26
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
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).
-26-
27
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.
(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.
-27-
28
(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 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
-28-
29
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 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
-29-
30
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
(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.
X.X. Xxx 000
Xxxx Xxxx, XX 00000
ATTN: Xx. Xxxxx X. Xxxxxxx, Vice President
With a required copy to:
-30-
31
Xxxxxx X. Xxxxxxx, P.C.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
NOTICES TO BORROWER shall be sent to:
ATTN: Xxxxxx Xxxxx
WW-Golf & Services, LLC
X.X. Xxx 00000
Xxxxxxxxx, XX 00000
With a required copy to:
Xxxxxx X. Xxxxx, Xx., Esquire
The Xxxxx Law Firm PC
X.X. Xxxxxx 00000
Xxxxxxxx Xxxxx, XX 00000-0000
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.
-31-
32
(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, 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 other than as set forth
in the Indemnification Agreement 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.
-32-
33
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 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
-33-
34
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 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.
-34-
35
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 /S/ XXXXXX XXXXX
---------------------------------
Name: Xxxxxx Xxxxx
Title: President of Foreward Golf,
Inc., Manager
LENDER:
XXXXXX TELECOM LIMITED PARTNERSHIP
By /S/ XXXXX X. XXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President of
Grace Property
Management, Inc.,
general partner
-35-
