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EXHIBIT 10.50
SALE OF A CERTAIN NOTE SECURED BY JUNIOR SECURITY
THIS AGREEMENT is made effective this the 14th day of November, 1996 by
and between the U.A. CANADIAN PIPELINE INDUSTRY NATIONAL PENSION PLAN, a
Registered Canadian Pension Trust with its business address in Surrey, British
Columbia, Canada ("Pension Plan"), A&E CAPITAL FUNDING, INC., a Canadian
corporation with its principal place of business in Ontario, Canada ("A&E"),
and THE GAUNTLET AT XXXXXX XXXX, INC., a Virginia corporation with its
principal place of business in Xxxxxxxx County, Virginia ("Gauntlet"), and
BRASSIE GOLF CORPORATION, a Delaware Corporation ("Brassie"), all of which
collectively shall be referred to as "the Parties", or individually as a
"Party", and
WHEREAS, NATIONSBANK, N.A., a national banking association existing under
the laws of the United States, with offices in Shallotte, North Carolina and
elsewhere ("Nationsbank"), Pension Plan and Gauntlet entered into certain
construction financing arrangements, which included, but which were not
necessarily limited to:
1. A loan agreement between Nationsbank and Gauntlet effective on
April 19, 1994 for Nationsbank to loan Gauntlet the principal sum of XXX
XXXXXXX XXX XXXXXXX XXXXXXXX XXXXXX XXXXXX DOLLARS ($2,200,000.00)
evidenced by a Promissory Note, which Note was secured by, among other
things, a First Lien Credit Line Deed of Trust and Security Agreement in
favor of Nationsbank as beneficiary; a Collateral Assignment of Rents,
Leases and Profits; an Assignment of Developers Rights; and an Assignment
of Contract Rights and Permits, all of which were effective on April 19,
1994; and
2. A loan agreement between Pension Plan and Gauntlet effective on
April 19, 1994 for Pension Plan to loan Gauntlet the principal sum of XXX
XXXXXXX XXX XXXXXXX XXXXXXXX XXXXXX XXXXXX DOLLARS ($1,600,000.00) (the
"Loan") evidenced by the Loan Agreement and a Promissory Note dated April
19, 1994 ("Pension Plan Note") secured by;
A Second Lien Credit Line Deed of Trust and Security Agreement in
favor of the Pension Plan, effective on April 19, 1994 and recorded
in Book 1026, Page 235 of the Office of the Clerk of the Circuit
Court of Xxxxxxxx County, Virginia; a Collateral Assignment of
Rents, Leases and Profits effective on April 19, 1994 and recorded
in Book 1026, Page 272 of the aforesaid registry; an Assignment of
Developer's Rights; and an Assignment of Contract Rights and
Permits (the "Junior Security"), all of which were effective as of
April 19, 1994; and
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3. The purchase of an equity interest in Gauntlet by Pension
Plan; and
4. An Intercreditor Agreement between Nationsbank, Gauntlet and
Pension Plan effective on April 19, 1994 by which the parties
agreed, inter alia, that the secured obligations of Gauntlet to
Nationsbank were to be senior and primary to the secured
obligations of Gauntlet to Pension Plan, and that the secured
obligations of Gauntlet to Pension Plan were to be junior and
subordinate to the secured obligations of Gauntlet to Nationsbank;
and
WHEREAS, with the consent of Pension Plan, Nationsbank made a
further loan to Gauntlet on May 5th, 1995, and as an integral part of
this transaction, Nationsbank, Pension Plan, Gauntlet, and Xxxxxx X.
Xxxxxx, as Trustee of the Second Lien Credit Line Deed of Trust and
Security Agreement in favor of the Pension Plan (the "Trustee"), modified
the Intercreditor Agreement by entering into a Subordination Agreement of
even date expressly subordinating the junior security interests of
Pension Plan in the property of Gauntlet to the senior security interests
of Nationsbank in the property of Gauntlet; and
WHEREAS, during September, 1996, pursuant to the provisions of the
Pension Plan Note and pursuant to a Memorandum of Agreement Effective
June 17, 1996, Brassie paid, or caused to be paid, to the Trustee, on
account of Gauntlet, a sum sufficient to pay all accrued interest and all
other charges properly chargeable to Gauntlet and to reduce the principal
sum of the Pension Plan Note to FOUR HUNDRED SIXTY-NINE THOUSAND UNITED
STATES DOLLARS ($469,000.00), said payment to be accounted for as a
capital contribution to Gauntlet by its shareholder, Brassie, and,
additionally, Pension Plan and Brassie agreed that Brassie would, and
did, pay Pension Plan the sum of FIFTY THOUSAND UNITED STATES DOLLARS
($50,000.00) as payment in full by Brassie for Pension Plan's equity
interest in Gauntlet; and
WHEREAS, A&E entered into an agreement with Brassie and Gauntlet to
purchase the Pension Plan Note for the sum of FOUR HUNDRED SIXTY-NINE
THOUSAND UNITED STATES DOLLARS ($469,000.00), and pursuant thereto, A&E
has tendered such sum to Pension Plan and Pension Plan has agreed to
transfer the Pension Plan Note and the Junior Security to A&E; and
WHEREAS, Brassie, having purchased Pension Plan's equity interest
in Gauntlet, is entitled to delivery of the stock certificates
representing Pension Plan's equity interest in Gauntlet upon the closing
of the various agreements herein recited,
NOW, THEREFORE, for and in consideration of the promises and of the
mutual agreements, representations, warranties, covenants and conditions
hereinafter set forth, the parties hereto agree as
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follows:
SECTION ONE: CONVEYANCE OF THE PENSION PLAN NOTE.
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A. In consideration for the funds received from A&E, the adequacy and
receipt of which is hereby acknowledged, and at the express request of Brassie
and Gauntlet herein made, Pension Plan hereby conveys to A&E all of its right,
title, and interest in the Promissory Note of Gauntlet to Pension Plan dated
April 19, 1994 (the "Pension Plan Note").
B. A&E acknowledges and agrees that the conveyance of the Pension Plan
Note by Pension Plan to A&E is without recourse.
C. Pension Plan agrees to endorse the Pension Plan Note prior to its
delivery to A&E with language to the effect of "Pay to the order of A&E CAPITAL
FUNDING, INC., a Canadian corporation, without recourse and subject to the
terms and conditions of a certain Agreement effective November 14, 1996, the
terms of which are incorporated herein as if fully set out."
SECTION TWO: THE ASSIGNMENT OF THE JUNIOR SECURITY.
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In consideration for the funds received from A&E, the adequacy and
receipt of which are hereby acknowledged, and at the request of Brassie,
Pension Plan and Gauntlet hereby assign to A&E all of its right, title, and
interest in the Junior Security. Pension Plan and Gauntlet shall, upon request
of A&E, execute such other and further documents as may be reasonably necessary
or desirable with respect to the security interests of A&E in the properties
and interests in property constituting the Junior Security.
SECTION THREE: TRANSFER OF GAUNTLET STOCK BY PENSION PLAN
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Upon the execution of this Agreement, Pension Plan shall, subject to the
terms and conditions set forth in this Agreement, deliver to Brassie
certificates evidencing and representing all of Pension Plan's capital stock of
Gauntlet free and clear of all liens, pledges, and encumbrances of every kind,
character, and description whatsoever, save and except such rights which
Nationsbank may have with respect to the stock pursuant to agreements with
Gauntlet and/or Brassie.
SECTION FOUR: INTERCREDITOR AND SUBORDINATION AGREEMENTS
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A&E acknowledges and assumes all of Pension Plan's rights, duties and
obligations under the Intercreditor Agreement entered into on April 19, 1994
and under the Subordination Agreement of May 5, 1995, which Agreements shall in
all respects bind A&E as if A&E were an original signatory thereto. The
parties agree that Nationsbank is an intended third-party beneficiary of this
Section
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of this Agreement.
SECTION FIVE: REPRESENTATIONS AND WARRANTIES OF THE PARTIES
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Each party to this Agreement hereby warrants the following
representations as to itself, but does not warrant that these representations
are true and correct as to any other party:
A. The Parties are duly organized, validly existing and in good
standing under the laws of their respective jurisdictions, and each has the
power to own its property and conduct its business in the manner in which such
business is now being conducted.
B. The execution and delivery of this Agreement and the performance of
the transactions contemplated hereby have been duly authorized and approved
under each of the partys' governing documents. The Parties each have full
power to enter into and perform this Agreement and the transactions
contemplated hereby, and this Agreement constitutes a valid and binding
agreement of each of the Parties enforceable in accordance with its terms.
C. The execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated do not and will not result
in a violation of any provision of the governing documents of any of the
parties, or of any agreement, indenture, mortgage, deed of trust or other
instrument to which any of the Parties is a signatory, or by which any Party is
bound or of any law, rule, regulation, judgment, order or decree, save and
except agreements to which Nationsbank is a signatory unless Nationsbank
consents to these transactions by means of a separate agreement. All consents
by third parties, including the consent of Nationsbank, required to prevent or
eliminate every such conflict, breach, default, lien and encumbrance shall have
been validly obtained before the execution of this Agreement and such consents,
if any, shall be in full force and effect and valid and sufficient for such
purpose at the time of the execution of this Agreement.
D. Pension Plan, A&E and Gauntlet warrant that no defaults exist under
the terms of the Pension Plan Note or the Junior Security, nor do any
circumstances exist which with the giving of notice or the passage of time
would constitute such a default.
SECTION SIX: CONSENTS
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Each of the Parties consents to the transactions set forth in this
Agreement.
SECTION SEVEN: NOTICE
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Any notice, request, instruction, or other documents to be given
hereunder to any Party shall be in writing and delivered
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personally or sent by Registered Mail or Certified United States Mail postage
prepaid, by a nationally recognized overnight private courier service, or by
telegram, to the address set forth below. Any Party may change its address for
purposes of this paragraph by giving notice of such change of address to the
other party in the manner herein provided for giving notice.
U.A. CANADIAN PIPELINE INDUSTRY NATIONAL PENSION PLAN
Suite 316, 1959 - 152nd Street
Surrey, British Columbia, Canada V4A 9E3
with a copy to:
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Xxxxxx X. Xxxxxx, Esquire Xxxxxx & Xxxxxx
00 Xxxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
A&E CAPITAL FUNDING, INC.,
Suite 403 90 Eglington Avenue East
Toronto, Ontario, Canada 4MP2Y3
THE GAUNTLET AT XXXXXX XXXX, INC.,
Attn: Xxxxx X. Xxxxxxx, Esquire
Brassie Golf Corporation
0000-X Xxxxxxxxxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
SECTION EIGHT: MISCELLANEOUS
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A. Subject to the terms and conditions hereof, this Agreement shall be
binding upon and inure to the benefit of the Parties hereto and their
respective successors and assigns.
B. This instrument contains the entire agreement between the Parties
hereto with respect to the transaction contemplated hereby and shall not be
changed or terminated except by written amendment signed by the Parties hereto.
C. This Agreement is being delivered and is intended to be performed
in the Commonwealth of Virginia and shall be governed by and construed and
enforced in accordance with the laws of Virginia.
D. This Agreement may be signed in counterparts by the respective
Parties hereto, and a combination of such counterparts containing the
signatures of all of the Parties hereto shall constitute and be construed as
one integrated Agreement, as if all the Parties had executed and acknowledged
the same copy of the Agreement.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
U.A. CANADIAN PIPELINE INDUSTRY NATIONAL
PENSION PLAN,
a Registered Canadian Pension Trust
By: /s/ Xxxxxx Xxxxxxxxx
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(Title): Chairman, Board of Trustees
---------------------------------
Attest:
--------------------------------
(Title):
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A&E CAPITAL FUNDING, INC.,
a Canadian Corporation
By: /s/ Xxxxxx Xxxxx
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(Title): President
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Attest:
--------------------------------
(Title):
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THE GAUNTLET AT XXXXXX XXXX, INC.,
a Virginia Corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
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(Title): President
---------------------------------
Attest:
--------------------------------
(Title):
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BRASSIE GOLF CORPORATION,
a Delaware Corporation
By: /s/ Xxxxxxx X. Xxxxx
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(Title): President/CEO
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Attest:
--------------------------------
(Title):
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PROVINCE OF BRITISH COLUMBIA )
) To-wit:
CANADA )
The foregoing Agreement was acknowledged before me this _______ day of
__________________, 1997, by _______________________ as
________________________ of U.A. CANADIAN PIPELINE INDUSTRY NATIONAL PENSION
PLAN, a Registered Canadian Pension Trust, on behalf of said Trust.
My commission expires: ________________________________.
__________________________________________
Notary Public
PROVINCE OF ONTARIO )
) To-wit:
CANADA )
The foregoing Agreement was acknowledged before me this _______ day of
__________________, 1997, by _______________________ as
________________________ of A&E CAPITAL FUNDING, INC., a Canadian Corporation,
on behalf of said Corporation.
My commission expires: ________________________________.
__________________________________________
Notary Public
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STATE OF )
) To-wit:
C_________ OF ________________)
The foregoing Agreement was acknowledged before me this _______ day of
__________________, 1997, by _______________________ as
________________________ of THE GAUNTLET AT XXXXXX XXXX, INC., a Virginia
Corporation, on behalf of said Corporation.
My commission expires: ________________________________.
__________________________________________
Notary Public
STATE OF FLORIDA )
) To-wit:
C_________ OF ________________)
The foregoing Agreement was acknowledged before me this _______ day of
__________________, 1997, by _______________________ as
________________________ of BRASSIE GOLF CORPORATION, a Delaware Corporation,
on behalf of said Corporation.
My commission expires: ________________________________.
__________________________________________
Notary Public
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