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EXHIBIT 10(V)
SEA PINES COUNTRY CLUB
AGREEMENT TO TURNOVER MANAGEMENT AND CONTROL
This AGREEMENT TO TURNOVER MANAGEMENT AND CONTROL is made as of this 30th
day of April, 1996 by and between SEA PINES COMPANY, INC. (formerly known as Sea
Pines Plantation Company, Inc.), a South Carolina corporation (the "Company")
and SEA PINES COUNTRY CLUB, INC., a South Carolina not-for-profit corporation
(the "Club").
STATEMENT OF BACKGROUND INFORMATION
WHEREAS, the Club is a private golf, tennis, exercise, swimming and social
club which has been organized to provide services exclusively for the pleasure
and recreation of its members and their guests;
WHEREAS, the Company and the Club established an equity membership program
providing members of the Club the exclusive opportunity to use certain
recreational amenities situated within Sea Pines Plantation in Beaufort County,
Hilton Head Island, South Carolina pursuant to that certain Plan for the
Offering of Memberships in Sea Pines Country Club, Inc., Subscription Agreement
between the Company and the Club, By-Laws of the Club and other related
membership materials dated August 4, 1989 (the "Initial Membership Plan");
WHEREAS, the Company and the Club have modified certain provisions of the
Initial Membership Plan by agreement known as the "First Clarification of
Membership Plan Documents" dated October 9, 1989;
WHEREAS, the Company and the Club have modified the Initial Membership
Plan by agreement known as the "Second Clarification of Membership Plan
Documents" dated June 1, 1994;
WHEREAS, the Company and the Club have further modified the Initial
Membership Plan by agreement known as the "Third Clarification of Membership
Plan Documents" dated April 30, 1996;
WHEREAS, the Initial Membership Plan provides that the turnover of
management and control of the Club to the Equity Members will occur within one
hundred eighty (180) days of the occurrence of the earlier of the following
events: (a) the initial sale of all of the Equity Memberships permitted to be
sold by the Company, or (b) such earlier date determined by the Company;
WHEREAS, the Company and the Club hereby agree that even though all of the
Equity Memberships permitted to be sold by the Company have not been issued as
of the date of this Agreement that the turnover of management and control of
the Club to the Equity Members shall occur on May 1, 1996; and
WHEREAS, the Company and the Club hereby agree on the terms and conditions
of the early turnover of management and control of the Club to the Equity
Members as further set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties intending to
be legally bound agree as follows:
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1. DEFINITION OF TERMS. All of the defined terms used in this Agreement
shall have the same meaning as defined in the Initial Membership Plan.
2. RATIFICATION OF THE MEMBERSHIP DOCUMENTS. The Company and the Club
hereby agree that the Initial Membership Plan is attached to this Agreement as
Exhibit A.
The Company and the Club hereby acknowledge and agree that three amendments
to the Initial Membership Plan have previously been executed by the parties
modifying certain terms of the Initial Membership Plan. The first amendment is
known as the First Clarification of Membership Plan Documents and dated October
9, 1989, the second amendment is known as the Second Clarification of Membership
Plan Documents and dated June 1, 1994 and the third amendment is known as the
Third Clarification of Membership Plan Documents and dated April 30, 1996. A
copy of each of these amendments is attached to this Agreement as Exhibit B. The
parties hereto agree that the Initial Membership Plan, the First Clarification
of Membership Plan Documents, the Second Clarification of Membership Plan
Documents and the Third Clarification of Membership Plan Documents are
hereinafter collectively referred to as the "Membership Documents".
Except as modified by the terms of this Agreement, the Company and the
Club hereby ratify, reaffirm and agree to abide by each and every term,
condition, obligation and provision of the Membership Documents following the
turnover of management and control of the Club to the Equity Members.
3. TURNOVER OF MANAGEMENT AND CONTROL OF SEA PINES COUNTRY CLUB TO THE
EQUITY MEMBERS. The Company and the Club hereby agree to turn over management
and control of Sea Pines Country Club to the Equity Members as further
described and limited in the Membership Documents and that the Turnover Date
shall occur on May 1, 1996 as further described in the Membership Documents and
this Agreement. The parties hereto further agree that nothing in this
Agreement or as a result of the turnover of management and control of Sea Pines
Country Club to the Equity Members shall restrict or otherwise prohibit the
Company from selling all of its remaining unissued Equity Memberships after the
Turnover Date or from exercising all of its rights and privileges as further
set forth in the Membership Documents and this Agreement after the Turnover
Date.
4. CLUB FACILITIES. The parties hereto acknowledge and agree that page 1
of the Plan for the Offering of Memberships and Section 2 of the Subscription
Agreement appearing on page A-2 describe the Club Facilities to be provided at
the Club. Both the Company and the Club hereby acknowledge and agree that the
Company has provided the facilities required by the Membership Documents, the
Company has fulfilled all of its obligations regarding the Club Facilities and
that the Company has transferred the Club Facilities to the Club. In addition,
the parties acknowledge that the Club Facilities include the golf maintenance
facility and the golf cart storage facility which are currently being used by
the Club and are located between the ninth fairway and the practice range.
The parties also acknowledge the ongoing problems relating to the leaking
of the roof of the clubhouse which has also caused damage to certain areas of
the ceiling of the clubhouse. The Company agrees to continue its discussions
with the contractor and other appropriate persons to resolve any necessary
repairs to the roof and ceiling. The Company acknowledges and agrees that the
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Company is responsible and not the Club for repairing the roof of the clubhouse
and any resulting damage to the ceiling at no expense to the Club within a
reasonable time after the Turnover Date.
5. PAYMENT OF CASH FLOW FROM OPERATIONS TO THE CLUB. The parties hereto
agree that any cash flow from the operations of Sea Pines Country Club
commencing November 1, 1995 through April 30, 1996 shall be paid by the Company
to the Club on May 31, 1996. This cash flow amount will be the amount which
remains from operation of Sea Pines Country Club after all of the expenses that
the Company is responsible for through April 30, 1996 have been paid. Cash
flow shall be determined by deducting all payroll and related expenses and
other operating expenses (excluding depreciation and other non-cash items)
incurred in the operation of Sea Pines Country Club from all operating revenue
generated from the operation of Sea Pines Country Club (excluding membership
fees/contributions) as of April 30, 1996. Any resulting cash flow shall be
paid by the Company to the Club on May 31, 1996.
6. INVENTORY. The Club hereby acknowledges that the Membership Documents
provide that the Club shall pay the book value of the Inventory and Supplies as
of the Turnover Date to the Company no later than May 31, 1996. As a result,
the Company and the Club hereby agree that a physical inventory of the
Inventory and Supplies shall be taken on April 30, 1996 to determine the book
value of the Inventory and Supplies and that the Club shall pay the book value
of the Inventory and Supplies based on the inventory taken to the Company on or
before May 31, 1996.
7. CLUB FUND. In accordance with the Membership Documents, the Company has
deposited in an escrow account at a financial institution the portion of the
membership contributions retained by the Club upon the reissuance of resigned
Equity Memberships through February 1, 1995. The Club Fund has been invested as
directed by the Board of Governors. The total value of the Club Fund as of the
date of the last monthly trust statement dated March 29, 1996 is $503,226.12 in
cash and investments. A copy of the monthly trust statement dated March 29,
1996 is attached hereto as Exhibit C. By agreement between the Company and the
Club, the parties hereto agreed that the Company would no longer deposit the
membership contributions to be retained by the Club upon reissuance of resigned
Equity Memberships in the escrow account commencing February 1, 1995 and that
the Company would maintain a Schedule describing all of the membership transfers
that occurred after February 1, 1995, and the amount of the membership
contributions to be retained by the Club upon the reissuance of the Equity
Memberships and that amount plus interest, based on the money market fund rate
identified on the monthly trust statements for the Club Fund, would be paid to
the Club on the Turnover Date. The amount to be paid by the Company to the Club
on the Turnover Date from the reissuance of resigned Equity Memberships after
February 1, 1995, including interest, is $243,902.84 as of the date of this
Agreement. Attached as Exhibit D to this Agreement is a Schedule describing the
transfers of resigned memberships and the amount retained by the Club and
deposited in the Club Fund through February 1, 1995 and the transfers of
resigned Equity Memberships which have occurred after February 1, 1995 and the
amount retained by the Company plus interest that shall be paid to the Club on
the Turnover Date. The authority on the account in which the Club Fund has been
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deposited shall be transferred to the President and Treasurer of the Club on the
Turnover Date.
8. ASSIGNMENT OF LICENSES, PERMITS AND SERVICE CONTRACTS. Attached as
Exhibit E to this Agreement is a Schedule describing the current licenses,
permits and service agreements relating to the Club Facilities currently
executed in the name of the Company that will be assigned to the Club on the
Turnover Date. On the Turnover Date, the Company will execute an assignment
agreement, the form of which is attached hereto as Exhibit F, assigning all of
its interest in these agreements to the Club and the Club shall assume from the
Company all rights, liabilities and obligations of these licenses, permits and
service agreements commencing on the Turnover Date.
9. INSURANCE. The parties hereto agree that the Company has obtained
insurance policies for casualty, liability, workmen's compensation, and other
matters deemed necessary by the Company relating to the assets currently owned
by the Company and the Club Facilities. Attached as Exhibit G to this
Agreement is a listing of those current insurance policies including the policy
number, policy period, deductible amounts, policy limits and other information.
The Club agrees to pay to the Company on the Turnover Date an amount equal to
$35,902.96 which represents the cost of the unexpired premium for these
insurance policies and an allocation of the annual fee charged by the insurance
broker for the placement of these policies as further set forth on Exhibit G. In
addition, the Club will be responsible to cover claims up to the policy
deductible amount for any claims incurred after the Turnover Date and all
amounts in excess of the policy limits for these claims. The Club further
agrees to obtain insurance policies in the name of Sea Pines Country Club, Inc.
for casualty, liability, and any other matters deemed appropriate by the Board
of Directors of the Club on or before the expiration date of each of these
insurance policies.
10. MEMBERSHIPS IN THE CLUB. As of the date of this Agreement, the
Company has sold a total of 1,148 Equity Memberships and has a total of 152
remaining Equity Memberships to be sold. Attached to this Agreement as Exhibit
H is a Schedule setting forth the names of the members in each category of
membership and each annual dues plan, including Equity Memberships, Associate
Memberships, complimentary memberships and all other memberships currently
issued in the Club.
Attached as Exhibit I to this Agreement is a Schedule listing the names of
all Equity Members which are currently on the resigned membership list
maintained by the Club and attached as Exhibit J to this Agreement is a
Schedule of the dues, fees and other charges currently charged at the Club.
11. PRORATION OF REVENUE AND EXPENSES AND COLLECTION OF ACCOUNTS
RECEIVABLE ON BEHALF OF THE COMPANY. The Company and the Club hereby agree to
prorate all revenue and expense items as of the Turnover Date no later than May
31, 1996, including, but not limited to, the following:
* All water, sewer, electric and other utility charges,
* Any property taxes, assessments or property owners' association
assessments on property conveyed pursuant to the Initial Membership
Plan,
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* Rents and revenues of the Club Facilities,
* Wages and payroll taxes of employees of the Company which
relate to the operation of the Club Facilities,
* Service and other agreements if applicable, or any other
accrued expenses incurred in connection with the operation of the
Club Facilities,
* Outstanding gift certificates,
* License, permit fees and liquor, beer and wine escrow deposits, and
* Any dues, charges and fees paid in advance by members of the Club.
The Club hereby agrees after the Turnover Date to collect on behalf of the
Company the accounts receivable owed by members of the Club to the Company by
taking such usual and customary action as is deemed appropriate by the Board of
Directors of the Club, including, but not limited to, suspension of membership
privileges when necessary until the delinquent accounts have been paid in full.
All amounts collected by the Club from its members will be first applied to said
accounts receivable owed to the Company prior to the Turnover Date and will be
paid to the Company prior to the end of the month in which the amounts are
collected.
12. RESPONSIBILITY FOR MEMBERSHIP SALES. The parties hereto agree that
there should be a coordinated marketing effort to sell memberships in the Club
and, therefore, until the initial issuance of all of the Equity Memberships
permitted to be issued by the Company, the Company shall hire a Membership
Director whose responsibility will be to sell the remaining unissued Equity
Memberships to be sold by the Company, sell non-equity Social/Tennis
Memberships as described in the Third Clarification of Membership Plan
Documents dated April 30, 1996, and resell resigned Equity Memberships on the
resigned membership list on behalf of the Club. The Club shall provide an
office located in the Clubhouse at the Club. In addition, the Club shall pay
to the Company an amount determined by the Company for each Equity Membership
reissued on behalf of the Club. The initial amount to be paid to the Company
shall be $1,000.00 for each Equity Membership reissued from the resigned
membership list, which amount shall continue through October 31, 1997. After
October 31, 1997, the Company and the Club shall establish the amount of this
payment, provided, however, until the parties hereto agree to a different
amount the Club shall continue to pay $1,000.00 for each Equity Membership
reissued from the resigned membership list.
13. DIFFERENCE BETWEEN CREDIT AND INITIATION FEE IS PAID TO THE COMPANY.
The parties hereto acknowledge that page 6 of the Plan for the Offering of
Memberships in the Section entitled "Difference Between Credit and Initiation
Fee is Paid to the Company" provides that the amount by which the total credit
received by a particular member exceeds the initiation fee actually paid by
that particular member, if any, will be paid by the Club to the Company
immediately upon the reissuance of the resigned Equity Membership. The Initial
Membership Plan also provides an example by which this provision would apply.
Attached to this Agreement as Exhibit K is a Schedule which describes the total
credits received by each Equity Member of the Club and the amount to be paid to
the Company by the Club upon the reissuance of a resigned Equity Membership by
the Club.
14. RELEASE OF CLAIMS BY THE CLUB. Except as provided in Section 4 above
relating to the roof of the clubhouse and resulting damage to certain areas of
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the ceiling in the clubhouse, the Club hereby agrees to and does hereby release,
satisfy and forever discharge the Company, its directors, officers, employees,
agents, stockholders, affiliates, representatives, successors and assigns from
any and all manners of action, causes of action, damages, claims and demands
whatsoever, in law or in equity, which the Club ever had, now has or may have in
the future, for, upon or by reason of any matter, cause or thing related in any
way to the Club Facilities, the use of the Club Facilities and the Membership
Documents and any amendments thereto.
15. MISCELLANEOUS PROVISIONS.
A. ENTIRE AGREEMENT. This Agreement represents the entire
understanding and agreement between the parties with respect to the subject
matter hereof and supersedes all other negotiations, understandings and
representations (if any) made by and between such parties.
B. AMENDMENTS. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
C. ASSIGNMENTS. The Club and the Company may assign their rights
and/or obligations under this Agreement in whole or in part upon the prior
written approval of the other party, such approval shall not be unreasonably
withheld.
D. FURTHER ASSURANCES. The parties hereto agree from time to time to
execute and deliver such further assurances and other transfers, assignments
and documents and do all matters and things which may be necessary to more
effectively and completely carry out the intentions of this Agreement.
E. BINDING EFFECT. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of,
and be enforceable by the parties and their respective legal representatives,
successors and permitted assigns.
F. NOTICES. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing and shall be (as
elected by the person giving such notice) delivered or mailed by registered or
certified mail (postage prepaid), return receipt requested, addressed to:
If to the Company:
Sea Pines Company, Inc.
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Attention: President
If to the Club:
Sea Pines Country Club, Inc.
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Attention: President
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or to such other address as any party may designate by notice complying with
the terms of this Section. Each such notice shall be deemed delivered on the
date: (a) delivered if by personal delivery, and (b) upon which the return
receipt is signed or delivery is refused, or the notice is designated by the
postal authorities as not deliverable, as the case may be, if mailed.
G. HEADINGS. Headings contained in this Agreement are for convenience of
reference only and shall not limit or otherwise affect in any way the meaning
or interpretation of this Agreement.
H. SEVERABILITY. If any part of this Agreement or any other agreement
entered into pursuant hereto is contrary to, prohibited by, or deemed invalid
under applicable law or regulation, the provision shall be inapplicable and
deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible.
I. SURVIVAL. All covenants, agreements, representations and warranties
made herein or otherwise made in writing by any party pursuant hereto shall
survive the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby.
J. WAIVERS. The failure or delay of any party at any time to require
performance by another party of any provision of this Agreement, even if known,
shall not affect the right of that party to require performance of that
provision or to exercise any right, power or remedy hereunder, and any waiver
by any party of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach of such provision,
a waiver of the provision itself, or a waiver of any right, power or remedy
under this Agreement.
K. JURISDICTION AND VENUE. The parties acknowledge that a substantial
portion of negotiations, anticipated performance, and execution of this
Agreement occurred or shall occur in Hilton Head Island, South Carolina and
that, therefore, without limiting the jurisdiction or venue of any other
federal or state courts, each of the parties irrevocably and unconditionally:
(a) agrees that any suit, action or legal proceeding arising out of or relating
to this Agreement may be brought in the courts of record in the State of South
Carolina in Beaufort County or the District Court of the United States,
District of South Carolina, Charleston Division; (b) consents to the
jurisdiction of each such court and any such suit, action or proceeding; (c)
waives any objection which it may have to the laying of venue of any such suit,
action or proceeding in any of such courts; and (d) agrees that service of any
court paper may be effected on such party by mail, as provided in this
Agreement, or in such other manner as may be provided under applicable laws or
court rules in said State.
L. GOVERNING LAW. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of South Carolina without regard to
principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto, being duly authorized to enter
into this Agreement, have caused this Agreement to be duly executed and their
seals to be affixed hereto the day and year first above written.
WITNESSES: SEA PINES COMPANY, INC., a South Carolina
corporation
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Its: President
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Its: Secretary
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(Corporate Seal)
SEA PINES COUNTRY CLUB, INC., a South
Carolina not-for-profit corporation
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Its: President
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Its: Secretary
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(Corporate Seal)
The persons listed below currently serve on either the Advisory Board of
Governors established at Sea Pines Country Club or have been elected by the
Equity Members of Sea Pines Country Club to serve as the initial members of the
Board of Directors of Sea Pines Country Club, Inc. commencing on the Turnover
Date and have signed below solely to acknowledge their agreement on behalf of
Sea Pines Country Club, Inc. to the early turnover of management and control of
the Club to the Equity Members pursuant to the terms and conditions set forth
in this Agreement and the elected members to the Board of Directors agree to
ratify
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and affirm this Agreement on behalf of Sea Pines Country Club, Inc. at its
first meeting after the Turnover Date.
ELECTED MEMBERS
ADVISORY BOARD OF GOVERNORS TO THE BOARD OF DIRECTORS
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SEA PINES COUNTRY CLUB
AGREEMENT TO TURNOVER MANAGEMENT AND CONTROL
SCHEDULE OF EXHIBITS
NAME OF EXHIBIT EXHIBIT REFERENCE
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Initial Membership Plan A
First Clarification of Membership Plan Documents
dated October 9, 1989, Second Clarification
of Membership Plan Documents dated June 1, 1994
and Third Clarification of Membership Plan
Documents dated April 30, 1996 B
Monthly Trust Statement for Club Fund dated C
March 29, 1996
Schedule of Membership Transfers and Deposits to
Club Fund D
Schedule of Agreements to be Assigned E
Form of Assignment Agreement F
Schedule of Existing Insurance Policies and Unexpired
Amount Allocated to the Club G
Schedule of Existing Members in Each Membership
Category H
Schedule of Existing Resigned Equity Memberships I
Schedule of Existing Dues, Fees and Charges J
Schedule of Credits Received by Equity Members and
the Amount to be Paid to the Company Upon
Repurchase of These Resigned Memberships K
