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EXHIBIT 10.71
PRIVATE PLACEMENT PURCHASE AGREEMENT
Brassie Golf Corporation (the "Company") and Divot Properties, WGV, Inc. ("Sub")
One Tampa City Center
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
re: Purchase of Units
Gentlemen:
1. Certain Representations.
(a) The undersigned ("Subscriber") has reviewed the filings which
the Company has made with the Securities Exchange Commission
during the past 12 months. The Company represents and warrants
to the Subscriber that all such filings are correct and
accurate in all material respects and in all material respects
state all facts necessary to make such filings not misleading.
Subscriber has had the opportunity to discuss the Company's
affairs with the Company's officers.
(b) The Company and Sub represent and warrant that Sub is wholly
owned by the Company.
2. Sale of Units.
(a) Each Unit consists of one secured note issued by Sub in the
principal amount of $1,000 and in the form of Exhibit A (a
"Note"), and 500 shares (the "shares") of common stock of the
Company ("common stock").
(b) Effective upon the Closing (as hereinafter defined), the
Company (as to the shares included in the Units) and Sub (as
to the Notes included in the Units) hereby sell to Subscriber,
and Subscriber hereby purchases from the Company, the number
of Units set forth opposite Subscriber's name below.
(c) The purchase price of each Unit is $1,000.50, allocable $1,000
to the Note and $0.50 to the shares. The purchase price is
payable on the date of the Closing by wire transfer directly
to the person or entity who at the Closing sells Parcel 11 (as
hereinafter defined) to the Company.
(d) The Notes to be issued to the Purchasers will upon the Closing
be secured by a first mortgage in the form of Exhibit B (the
"Mortgage") and by a first and prior pledge and assignment of
certain proceeds under an instrument in the form of Exhibit C
(the "Assignment"), and will be guaranteed by the Company
pursuant to a guaranty in the form of Exhibit D. The interest
of each Purchaser in the Mortgage and the Assignment will be
pro rata with the respective number of Units purchased by it.
(e) This Agreement shall terminate and shall be of no further
force or effect if the Closing has not occurred by the close
of business on February 28, 1998.
(f) The term "Purchasers" as used herein means subscribers who in
the aggregate are purchasing 1,500 Units under agreements of
the same tenor as this Agreement.
(g) "Parcel 11" means the real estate which is described in the
Mortgage. The "Closing" means the consummation of the
currently contemplated purchase by the Company of Parcel 11.
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(h) Concurrently with the Closing and as a condition to the
obligations of Subscriber hereunder, the Company shall cause
Annis, Mitchell, Xxxxxx, Xxxxxxx & Xxxxx to deliver to the
Subscriber an opinion of such counsel (which opinion shall be
satisfactory to counsel to Subscriber) to the effect that the
Note, this Agreement, the Mortgage, the Assignment and the
Guaranty are valid. binding and enforceable in accordance with
their respective terms, that the Mortgage and the Assignment
are superior to and are not subordinate to or on a parity with
any other liens or claims then in effect or which may arise
thereafter, that the Mortgage and the Assignment have been
duly recorded and that the security interests thereunder have
been perfected by all requisite UCC and other filings, and
that the shares are duly and validly issued, fully paid and
non-assessable.
3. Registration.
(a) The Company will include the shares in the first registration
statement which is hereafter filed by the Company on Form S-1
or S-3 (the "Registration Statement"). The registration shall
be accompanied by blue sky clearances in such states as
Subscriber may reasonably request.
(b) The Company shall pay all expenses of the registration
hereunder, other than Subscriber's underwriting discounts.
(c) The Company shall supply to Subscriber a reasonable number of
copies of all registration materials and prospectuses. The
Company and Subscriber shall execute and deliver to each other
indemnity agreements which are conventional in registered
offerings of this type. The Subscriber shall reasonably
cooperate with the Company in the preparation and filing of
the Registration Statement and appropriate amendments thereto.
(d) Subscriber may transfer a proportionate part of its
registration rights to a limited number of permitted
transferees of the Units or portions thereof.
4. Securities Representations.
(a) Subscriber represents and warrants that it is purchasing the
shares solely for investment solely for its own account and
not with a view to or for the resale or distribution thereof
except as permitted under the Registration Statement or as
otherwise permitted by law.
(b) Subscriber understands that it may sell or otherwise transfer
the Note or the shares only if such transaction is duly
registered under the Securities Act of 1933, as amended, under
the Registration Statement or otherwise, or if Subscriber
shall have received the favorable opinion of counsel to the
holder, which opinion shall be reasonably satisfactory to
counsel to the Company, to the effect that such sale or other
transfer may be made in the absence of registration under the
Securities Act of 1933, as amended, and registration or
qualification in every applicable state. The certificates
representing the shares will be legended to reflect these
restrictions, and stop transfer instructions will apply.
Subscriber realizes that the Units are not a liquid
investment.
(c) Subscriber has not relied upon the advice of a "Purchaser
Representative" (as defined in Regulation D of the Securities
Act) in evaluating the risks and merits of this investment.
Subscriber has the knowledge and experience to evaluate the
Company and the risks and merits relating thereto.
(d) Subscriber represents and warrants that Subscriber is an
"accredited investor" as such term is defined in Rule 501 of
Regulation D promulgated pursuant to the Securities Act of
1933, as amended, and shall be such on the date any shares are
issued to the holder; Subscriber acknowledges that Subscriber
is able
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to bear the economic risk of losing Subscriber's entire
investment in the Note and the shares and understands that an
investment in the Company involves substantial risks;
Subscriber has the power and authority to enter into this
agreement, and the execution and delivery of, and performance
under this agreement shall not conflict with any rule,
regulation, judgment or agreement applicable to the
Subscriber; and Subscriber has invested in previous
transactions involving restricted securities.
5. Commission. The Company will at the Closing pay to Xxxxxxx Trading
Company a 10% commission on all amounts paid by Purchasers to the
Company.
6. Legal Fee. At the Closing, the Company will pay a $10,000 fee to Xxxxx
X. Xxxxxx.
7. Miscellaneous.
(a) This Agreement may not be changed or terminated except by
written agreement. It shall be binding on the parties and on
their personal representatives and permitted assigns. It sets
forth all agreements of the parties. It shall be enforceable
by decrees of specific performance (without posting bond or
other security) as well as by other available remedies. This
Agreement shall be governed by, and construed in accordance
with, the laws of Florida. The federal and state courts
sitting in the City of Tampa shall have exclusive jurisdiction
over all matters relating to this Agreement. Trial by jury is
expressly waived.
(b)
(c) A
(d) ll notices, requests, service of process, consents, and
(e) other communications under this Agreement shall be in writing
and shall be deemed to have been delivered (i) on the date
personally delivered or (ii) one day after properly sent by
Federal Express, addressed to the respective parties at their
address set forth in this Agreement or (iii) on the day
transmitted by facsimile so long as a confirmation copy is
simultaneously forwarded by Federal Express, in each case
addressed to the respective parties at their address set forth
in this Agreement. Either party hereto may designate a
different address by providing written notice of such new
address to the other party hereto as provided above.
8. Except as otherwise expressly set forth herein, each party hereto shall
be responsible for its own expenses with regard to the negotiation and
execution of this Agreement.
Dated:
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SUBSCRIBER:
signature:
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type or print name:
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Address:
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Fax No.
Social Security No:
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Number of Units:
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AGREED:
BRASSIE GOLF CORPORATION
BY
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DIVOT PROPERTIES, WGV, INC.
BY
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