EX-10.2 AGREEMENT OF PURCHASE AND SALE
AGREEMENT OF PURCHASE AND SALE
This Agreement of Purchase and Sale (this "Agreement") is
entered into as of December 19, 2003, by and between ▇▇▇▇▇ Sports
Turf, Inc., a Delaware Corporation ("Buyer"); ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇.
▇▇▇▇▇"), an individual residing in ▇▇▇▇▇ County, Georgia; ▇▇▇▇▇▇ ▇▇▇▇▇
("▇▇. ▇▇▇▇▇"), an individual residing in ▇▇▇▇▇ County, Georgia; and
▇▇▇▇▇ Sports Turf, Inc., a Georgia Corporation ("▇▇▇▇▇ Georgia"). At
times herein, ▇▇▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇▇ and ▇▇▇▇▇ Georgia are referred to
collectively as "Sellers." This Agreement constitutes (i) a contract
of purchase and sale among the parties and (ii) escrow instructions to
Escrow Agent (as hereinafter defined).
THE PARTIES ENTER INTO THIS AGREEMENT on the basis of the
following facts, understandings and intentions:
A. As more particularly described in the next succeeding
recitals of this Agreement, Sellers together own all of the assets of
"▇▇▇▇▇ Sports Turf" (the "Business"), an enterprise located in Rome,
Georgia, engaged in the business of manufacturing artificial sports
turf and related play surfacing materials (the "Products").
B. ▇▇▇. ▇▇▇▇▇ owns the real property comprised of approximately
3.55 acres, located at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, in the City of
Rome, County of ▇▇▇▇▇, State of Georgia, as more particularly
described on the attached Exhibit 1 (herein the "Land") and the
Improvements (defined below) located upon the Land, together with ▇▇▇.
▇▇▇▇▇'▇ interest in (i) all rights, privileges, easements and right-
of-ways appurtenant thereto, (ii) all warranties in connection with
the Improvements, (iii) to the extent assignable, all entitlements,
permits and other intangible property used in connection therewith,
and (iv) to the extent assignable, all contract rights related to the
ownership, use and operation thereof (collectively, including such
Land and Improvements, the "Property");
C. ▇▇. ▇▇▇▇▇ and/or Avery Georgia own certain industrial
machinery located and installed at the Property, as more particularly
described on the attached Exhibit 2, together with (i) ▇▇. ▇▇▇▇▇'▇ and
▇▇▇▇▇ Georgia's interests in (i) all warranties in connection with the
Equipment, (ii) to the extent assignable, all entitlements, permits
and other intangible property used in connection therewith, and (iii)
to the extent assignable, all contract rights related to the
ownership, use and operation thereof (collectively, the "Equipment");
D. ▇▇. ▇▇▇▇▇ and/or Avery Georgia own certain letters patent
and patents, provisional patent applications, patent applications,
patent licenses, know-how, trade names, brand names, trademarks,
inventions, technology, trade secrets, customer lists, inventory,
ideas, processes, documentation, design documentation and
specifications, and tangible or intangible proprietary information or
material (herein the "Intellectual Property", more particularly
described in the attached Exhibit 3);
E. ▇▇. ▇▇▇▇▇ and/or Avery Georgia own certain other assets
related to or associated with the Business (excluding the Excluded
Assets), including Customer (defined hereinbelow) lists, Accounts
Receivable (as defined hereinbelow), prepaid expenses, Inventories
(defined hereinbelow), work in progress under Assumed Customer
Contracts (defined hereinbelow), books of account, customer lists,
price lists, correspondence, data, sales literature, sales data,
accounting information relating to the Business, client files (for
active and inactive matters), books and records, files, personnel
files of employees of the Business who are employed by Buyer from and
after the Closing, data bases, manuals, e-mails, ledgers, papers and
records and tax returns, in whatever form or medium related to the
Business, all goodwill related to the Business, all telephone numbers,
e-mail addresses, websites, and domain names related to the Business,
all causes of action, judgments and claims or demands against others
of whatever kind or description related to the Business, and all other
property owned or used by said Sellers, whether tangible or
intangible, used by or in the Business and located at the Property,
whether or not expressly referred to herein (all of the foregoing
being at times referred to herein as the "Other Business Assets"). In
addition, ▇▇. ▇▇▇▇▇ and/or Avery Georgia have indebtedness and/or
liabilities related to or associated with the Business (the "Assumed
Liabilities"), more particularly described in the attached Exhibit 4),
which are to be assumed by Buyer hereunder;
F. The parties desire to effect a business combination whereby
(1) the Sellers will sell, and Buyer will purchase, substantially all
of the assets of the Business; viz: the Property, the Equipment, the
Intellectual Property, and the Other Business Assets (collectively
herein the "Acquired Assets"), and (2) Buyer will assume certain
indebtedness of Sellers, more particularly described hereinbelow, on
the terms, covenants and conditions provided herein; and
G. For purposes of this Agreement, the following terms shall
have the meanings given below:
G.1. "Accounts Receivable" means all rights to payment for
goods sold, licensed or leased or for services rendered to Customers
in connection with the Business, all sums of money or other proceeds due or
becoming due thereon and all instruments pertaining thereto;
G.2. "Acquired Assets" has the meaning set forth in recital "F"
above;
G.3. "Assumed Liabilities" has the meaning set forth in recital
"E" above and more particularly described in the attached Exhibit 4;
G.4. "Assumed Customer Contracts" means the Customer Contracts
assumed by Buyer hereunder and listed as such on the attached Exhibit 5;
G.5. "Bank Debt" has the meaning set forth in Exhibit 4;
G.6. "Business" has the meaning set forth in recital "A" above;
G.7. "Business Day" shall mean any day other than a Saturday,
Sunday or day on which banks in the state of Georgia are authorized to
be closed for business;
G.8. "Claim" means (i) a right to payment, whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured or unsecured or (ii) a right to an equitable remedy
for breach of performance if such breach gives rise to a right to
payment, whether or not such right to an equitable remedy is reduced
to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured;
G.9. "Closing" means the consummation of the transactions
contemplated hereby, and the recordation of the instruments necessary
to vest good title to the Property and the Equipment in Buyer in
accordance with the terms and provisions of this Agreement;
G.10. "Closing Date" means a date when the Close of
Escrow has occurred;
G.11. "Code" means the Internal Revenue Code of 1986, any
amendments thereto, any successor statutes and any regulations
promulgated thereunder;
G.12. "Customers" means ▇▇. ▇▇▇▇▇'▇ and ▇▇▇▇▇ Georgia's entire
end user customer base with regard to the Business;
G.13. "Customer Contracts" means any and all contracts and
agreements related to the Customers listed on Exhibit 5 of this
Agreement;
G.14. "Employees" means all employees of ▇▇. ▇▇▇▇▇ and Avery
Georgia engaged primarily in the Business;
G.15. "Escrow Agent" means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇;
G.16. "Execution Date" shall mean the date set forth at the
beginning hereof.
G.17. "Excluded Assets" has the meaning set forth in Section 5;
G.18. "Excluded Liabilities" has the meaning set forth in Section 5;
G.19. "Governmental Authority" means any agency, board, bureau,
executive, court, commission, department, legislature, tribunal,
instrumentality or administration of the United States, or any state,
provincial, territorial, municipal, county, local or other
governmental entity in the United States;
G.20. "Governmental Permits" means all licenses, permits,
approvals, consents, certificates, waivers, exemptions, orders,
registrations, variances and other authorizations from any and all
Governmental Authorities, including any state sales tax numbers, used
or held for use in connection with the conduct of the Business;
G.21. "Improvements" shall mean a four story industrial
building consisting of approximately One Hundred Seven Thousand Eight
Hundred Eighty-four (107,884) square feet;
G.22. "Intellectual Property" has the meaning set forth in
recital "D" above;
G.23. "Inventories" means all inventories of raw materials,
works in process, finished products, goods, spare parts, replacement
and component parts, and office and other supplies;
G.24. "Knowledge of Sellers" means the actual knowledge, after
due inquiry, of ▇▇. ▇▇▇▇▇, ▇▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ as President and
Chief Executive Officer of Avery Georgia;
G.25. "Law" means any law, statute, regulation, rule, code,
ordinance or court order enacted, adopted, issued or promulgated by
any Governmental Authority;
G.26. "Liability" or "Liabilities" means any and all material
liabilities, obligations, judgments, damages, charges, costs, debts
and indebtedness of any and every kind and nature whatsoever, absolute
or contingent, liquidated or unliquidated, in Law, equity or
otherwise;
G.27. "Lien" means, with respect to any asset or property of
any character, any mortgage, pledge, security interest, lien
(including any mechanic's or materialman's lien, tax lien, shipper or
warehousemen lien or customs lien), right of first refusal, option or
other right to acquire, transfer for security, charge, Claim,
easement, conditional sale agreement, title retention agreement,
defect in title, or other encumbrance or adverse Claim of any nature
pertaining to or affecting such asset or property, whether voluntary
or involuntary and whether arising by Law, contract or otherwise,
including without limitation, in the case of any Accounts Receivable,
any right or claim of any person other than Sellers upon or with
respect to the proceeds thereof;
G.28. "Material Adverse Change" means any change or changes in,
or effect on, the Business or the Acquired Assets that is
individually, or are in the aggregate, reasonably likely to be
materially adverse to the financial condition of the Business or the
Acquired Assets, each taken as a whole, other than (i) any change or
effect in any way resulting from or arising in connection with this
Agreement or any of the transactions contemplated hereby (including
any announcement with respect to this Agreement or any of the
transactions contemplated hereby); (ii) changes in (A) economic,
regulatory or political conditions generally or (B) general business
or economic conditions relating to any industries in which any of
Sellers participates, that is not specific to such Seller; (iii) any
change in or effect on the Acquired Assets or the Business that is
cured (including by the payment of money) by the applicable Seller,
(iv) any change in or effect on the Acquired Assets or the Business
resulting from any loss of Customers (including any reduction in
revenue therefrom), and (v) any change in or effect on the Acquired
Assets or the Business resulting from the resignations of any Employees;
G.29. "Ordinary Course of Business" means the ordinary course
of business of Sellers and consistent with Sellers' past custom and
practice;
G.30. "Other Business Assets" has the meaning set forth in
recital "E" above;
G.31. "Permitted Encumbrances" means (i) statutory liens for
current Taxes or assessments not yet due or delinquent, (ii)
mechanics', carriers', workers', repairers' and other similar liens
arising or incurred in the Ordinary Course of Business relating to
obligations as to which there is no default on the part of any of
Sellers or the validity or amount of which is being contested in good
faith by appropriate proceedings, or pledges, deposits or other liens
securing the performance of bids, trade contracts, leases or statutory
obligations (including workers' compensation, unemployment insurance
or other social security legislation), (iii) zoning, entitlement,
conservation restriction and other land use and environmental
regulations by Governmental Authorities which do not materially
interfere with the present use of the Acquired Assets, and (v) such
other liens, imperfections in or failure of title, charges, easements,
rights-of-way, encroachments, exceptions, restrictions and
encumbrances which do not materially interfere with the present use of
the Acquired Assets;
G.32. "Person" means any individual, corporation, partnership,
proprietorship, joint venture, limited liability company, association,
joint-stock company, trust, unincorporated organization, Governmental
Authority, or other entity, organization or institution of any type
whatsoever;
G.33. "Sellers" has the meaning set forth in the preamble;
G.34. "Tax" means any federal, state, local, or other income,
alternative, minimum, inheritance, accumulated earnings, personal
holding company, corporation, franchise, capital stock, net worth,
capital, profits, windfall profits, capital gain, gross receipts,
value added, sales, use, goods and services, excise, customs duties,
transfer, conveyance, mortgage, registration, stamp, documentary,
recording, premium, environmental, real property, personal property,
ad valorem, intangibles, rent, occupancy, license, occupational,
employment, unemployment insurance, social security, disability,
workers' compensation, payroll, health care, withholding, estimated or
other similar tax, duty or other governmental charge or assessment or
deficiencies thereof (including all interest and penalties thereon and
additions thereto whether disputed or not);
G.35. "Tax Return" means any return, report, declaration, form,
Claim for refund or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any
amendment thereof;
G.36. "Title Company" shall mean AAA Land and Title Agency,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and
agreements of the parties as herein set forth, the parties hereto
agree as follows:
1. Real Estate Purchase. ▇▇▇. ▇▇▇▇▇ agrees to sell the
Property to Buyer, and Buyer agrees to purchase the Property from ▇▇▇.
▇▇▇▇▇, on all of the terms, covenants and conditions provided herein.
2. Equipment Purchase. ▇▇. ▇▇▇▇▇ and ▇▇▇▇▇ Georgia agree to
sell the Equipment to Buyer, and Buyer agrees to purchase the
Equipment from ▇▇. ▇▇▇▇▇ and Avery Georgia, on all of the terms,
covenants and conditions provided herein.
3. Intellectual Property Purchase. ▇▇. ▇▇▇▇▇ and Avery Georgia
agree to sell the Intellectual Property to Buyer, and Buyer agrees to
purchase the Intellectual Property from ▇▇. ▇▇▇▇▇ and Avery Georgia,
on all of the terms, covenants and conditions provided herein. At the
Closing, ▇▇. ▇▇▇▇▇ and Avery Georgia shall execute the form of
Assignment attached as Exhibit 6. Other than the rights expressly set
forth herein, ▇▇. ▇▇▇▇▇ and Avery Georgia shall, after the Closing,
have no further or continuing interest in the Intellectual Property,
nor any other patent or technology related to the Patents. At the
Closing, ▇▇. ▇▇▇▇▇ and Avery Georgia shall provide to Buyer the
original certificates reflecting the registrations of the Intellectual
Property, as well as all files in their possession regarding the
technology embodied in the Intellectual Property. ▇▇. ▇▇▇▇▇ and Avery
Georgia further agree at any time after the Closing to execute and to
deliver upon request of the Buyer, at Buyer's expense, such additional
documents, if any, as may be necessary or desirable to protect the
Intellectual Property or to give full effect to this Agreement.
4. Other Business Assets Purchase. ▇▇. ▇▇▇▇▇ and Avery Georgia
agree to sell the Other Business Assets to Buyer, and Buyer agrees to
purchase the Other Business Assets from ▇▇. ▇▇▇▇▇ and Avery Georgia,
on all of the terms, covenants and conditions provided herein.
5. Excluded Assets and Liabilities. The transactions
contemplated herein shall not include the purchase and sale of the
assets more particularly described in the attached Exhibit 7 (the
"Excluded Assets") or the assumption by Buyer of the liabilities more
particularly described in the attached Exhibit 8 (the "Excluded
Liabilities").
6. Deposit. Buyer has paid to ▇▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ the sum
of Thirty Thousand Dollars ($30,000.00) in cash ("Deposit") as a
deposit on account of the Purchase Price (as defined in Section 4).
The Deposit shall be nonrefundable, except as provided in Section 3(b)
below. ▇▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ acknowledge receipt of the Deposit by
their execution of this Agreement. Payments made to Greater Rome Bank
and Insurance to bind coverage are considered part of the $30,000.
7. Liquidated Damages/Default.
a. Buyer's Default. IN THE EVENT THAT THE SALE OF THE
PROPERTY AND THE EQUIPMENT DOES NOT CLOSE AS A CONSEQUENCE OF A
DEFAULT BY BUYER, AND IF NEITHER ▇▇▇. ▇▇▇▇▇ NOR ▇▇. ▇▇▇▇▇ IS IN
DEFAULT OF ANY OF THEIR OBLIGATIONS UNDER THIS AGREEMENT AND HAVE
PERFORMED ALL OBLIGATIONS TO BE PERFORMED HEREUNDER AS OF THE TIME OF
BUYER'S DEFAULT, SELLERS SHALL BE ENTITLED EITHER TO (i) RETAIN THE
AMOUNT OF THE DEPOSIT AS LIQUIDATED DAMAGES, OR (ii) SPECIFIC
PERFORMANCE OF BUYER'S OBLIGATION TO PURCHASE THE PROPERTY AND THE
EQUIPMENT; PROVIDED, HOWEVER, IN THE EVENT SELLERS ELECT TO SEEK
SPECIFIC PERFORMANCE AND ARE UNSUCCESSFUL IN OBTAINING SPECIFIC
PERFORMANCE, SELLERS SHALL BE ENTITLED TO RETAIN THE AMOUNT OF THE
DEPOSIT AS LIQUIDATED DAMAGES. THE PARTIES AGREE THAT SELLERS' ACTUAL
DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE IF BUYER
DEFAULTS, AND THE AMOUNT OF THE DEPOSIT IS THE BEST ESTIMATE OF THE
AMOUNT OF DAMAGES SELLERS WOULD SUFFER. THE PARTIES ACKNOWLEDGE THAT
THE SUM REPRESENTED BY BUYER'S DEPOSIT CONSTITUTES A REASONABLE
ESTIMATE OF SELLERS' DAMAGES. SELLERS AGREE THAT THEY WILL ACT
TOGETHER IN ACCORDANCE WITH THIS SECTION 4(a) AND WILL NOT SEEK
SEPARATE OR CONFLICTING REMEDIES.
▇. ▇▇▇▇▇▇▇' Default. IF EITHER OF THE SELLERS REFUSES OR
FAILS TO CONVEY THE PROPERTY OR THE EQUIPMENT PURSUANT TO THIS
AGREEMENT FOR ANY REASON EXCEPT A DEFAULT BY BUYER HEREUNDER, BUYER,
AS ITS SOLE AND EXCLUSIVE REMEDY (EXCEPT AS PROVIDED IN SECTION 7(f)
BELOW), SHALL BE ENTITLED EITHER TO (i) TERMINATE THIS AGREEMENT AND
RECOVER THE DEPOSIT AND, IF APPLICABLE THE LIQUIDATED DAMAGES COMPUTED
PURSUANT TO SECTION 7(e) BELOW, OR (ii) SPECIFIC PERFORMANCE OF
SELLERS' OBLIGATIONS TO CONVEY THE PROPERTY AND THE EQUIPMENT,
PROVIDED THAT NO SUCH ACTION FOR SPECIFIC PERFORMANCE SHALL SEEK TO
REQUIRE EITHER OF THE SELLERS TO DO ANY OF THE FOLLOWING: (A) CHANGE
THE CONDITION OF THE PROPERTY OR THE EQUIPMENT, OR RESTORE THE SAME
AFTER ANY CASUALTY (EXCEPT AS EXPRESSLY PROVIDED IN SECTION 13), OR
(B) EXPEND MONEY OR POST A BOND TO REMOVE A TITLE ENCUMBRANCE OR
DEFECT (EXCEPT LIENS OR ENCUMBRANCES CREATED BY SUCH SELLER. IN THE
EVENT BUYER SEEKS SPECIFIC PERFORMANCE AND IS UNSUCCESSFUL IN
OBTAINING SPECIFIC PERFORMANCE, BUYER SHALL BE ENTITLED TO TERMINATE
THIS AGREEMENT AND RECOVER THE DEPOSIT. BUYER SHALL BE DEEMED TO HAVE
ELECTED TO TERMINATE THIS AGREEMENT IF BUYER FAILS TO DELIVER TO
SELLERS WRITTEN NOTICE OF ITS INTENT TO ASSERT A CAUSE OF ACTION FOR
SPECIFIC PERFORMANCE WITHIN THIRTY (30) DAYS FOLLOWING THE SCHEDULED
CLOSING DATE OR, HAVING GIVEN SUCH NOTICE, FAILS TO FILE A LAWSUIT
ASSERTING SUCH CAUSE OF ACTION IN THE PROPER COURT WITHIN SIXTY (60)
DAYS FOLLOWING THE SCHEDULED CLOSING DATE.
c. Cure Period for Default. Prior to termination of this
Agreement by either party for default, the party alleging default
shall give the defaulting party or parties written notice thereof, and
the defaulting party or parties shall have ten (10) days from receipt
of such notice to cure such default.
8. Consideration and Purchase Price. In consideration for the
Acquired Assets and in full payment therefore, Buyer shall assume the
Assumed Liabilities as provided herein and shall deliver to Sellers at
Closing the following consideration (with the items referred to in
clauses (a), (b) and (c) being referred to collectively as the
"Purchase Price"):
a. Application of the Deposit; and
b. a Promissory Note, in the amount of Two Hundred
Thousand Dollars ($200,000) substantially in the form of the attached
Exhibit 9 (the "Note"), to be secured at Closing by a second mortgage
on the Property; and
c. The assumption of the Assumed Liabilities.
9. Conditions Precedent. At or before Close of Escrow the
following conditions precedent ("Conditions Precedent") shall be
either satisfied or waived by Buyer as a condition to Buyer's
obligation to proceed with the purchase of the Property and the
Equipment:
a. Title. The term "Conditions of Title" shall refer to
those exceptions to title (including, without limitation, Title
Company's standard printed exceptions to title with respect to an ALTA
Owner's Extended Form policy of title insurance (an "ALTA Policy"),
the lien for real property taxes not delinquent, any current
assessments (subject to ▇▇▇. ▇▇▇▇▇'▇ obligation to pay delinquent
assessments or credit same to the Purchase Price at closing), and the
effect of any other encumbrances or matters of title caused or
approved in writing by Buyer. On the Closing Date, Title Company shall
be unconditionally committed to issue an American Land Title
Association ("ALTA") Extended Title Policy Form B (1970) for the
Property ("ALTA Title Policy"), with a liability limit in the amount
of the combined total of the Note and the Bank Debt and insuring fee
title vested in Buyer (in addition, the Equipment shall not be subject
to any liens or encumbrances of record);
b. Property Documents. Buyer has reviewed and approved
all title reports and other documents and reports pertinent to the
Property and the Equipment (the "Property Documents"). As of the Close
of Escrow there shall have been no material adverse change in the
physical condition of the Property as described in the Property
Documents which would materially adversely affect Buyer's use and
occupancy of the Property; and
▇. ▇▇▇▇▇▇▇' Performance. Sellers shall have performed all
of their obligations under this Agreement.
10. No Encumbrance or Transfer. Except as provided herein,
Sellers shall not encumber, lease, transfer, assign or sell all or any
portion, or interest in, the Property or the Equipment, or enter into
any agreement or contract affecting or relating to the Property or the
Equipment without Buyer's prior written consent, which consent may be
withheld in Buyer's sole discretion.
11. Escrow.
a. Escrow. Within five (5) Business Days of the
Execution Date, Buyer shall establish an escrow ("Escrow") with the
Escrow Agent for the close of the subject transactions. An executed
copy of this Agreement shall be deposited with the Escrow Agent by
Buyer and this Agreement shall constitute Escrow Agent's escrow
instructions for closing Escrow. Escrow shall close ("Close of
Escrow") on or before the Closing Date.
▇. ▇▇▇▇▇▇▇. On or prior to the Closing Date Sellers shall
deposit the following into Escrow:
(i) Deed. A duly executed and acknowledged Deed in
usual form setting forth all exceptions to title created or suffered
by ▇▇▇. ▇▇▇▇▇ which are not to be removed at or prior to Closing;
(ii) Non-Foreign Person Certificates. Duly
executed non-foreign person certificates ("Non-Foreign Person
Certificates") in usual form sufficient to relieve Buyer of any
withholding requirements pursuant to the provisions of Section 1445 of
the Internal Revenue Code of 1986 as amended (the "Code; and
(iii) ▇▇▇▇ of Sale. A ▇▇▇▇ of Sale and assignment,
in a form reasonably approved by Buyer and ▇▇. ▇▇▇▇▇, of all of ▇▇.
▇▇▇▇▇'▇ rights, title, and interest in and to the Equipment and the
Intellectual Property (the "▇▇▇▇ of Sale"); and
(iv) Additional Escrow Instructions and Documents.
Such additional escrow instructions ("Sellers' Additional Escrow
Instructions") and documents as Escrow Agent may reasonably require of
Sellers to close the sale of the Property and the Equipment in
accordance with this Agreement, which instructions shall not be
inconsistent with the terms of this Agreement.
c. Buyer. On or prior to the Closing Date, Buyer shall
deposit the following into Escrow:
(i) Note. The promissory note described hereinabove;
(ii) Cash and Note. Cash in the amount
necessary to pay Buyer's share of closing costs and prorations, as
hereinafter set forth; and
(iii) Additional Escrow Instructions
and Documents. Such additional escrow instructions ("Buyer's
Additional Escrow Instructions") and documents as Escrow Agent may
reasonably require of Buyer to close the sale of the Property and the
Equipment in accordance with this Agreement.
12. Close of Escrow.
a. Time. When the Escrow Holder has confirmed that
Title Company is in a position to issue an ALTA Extended Policy (Form
B-1970) ensuring title to the Property as being vested in Buyer in
accordance with Section 6(a) and all documents and funds required
hereby have been deposited with Escrow Agent, Escrow Agent shall cause
Close of Escrow to occur as provided below.
b. Procedure. Escrow Agent shall close Escrow as follows:
(i) Record the following documents in the order set forth below:
The Deed; and
The new second mortgage securing the Note.
(ii) Deliver to Sellers the following:
(1) The Note; and
(2) A conformed copy of the Deed.
(iii) Deliver to Buyer the following:
(1) An ALTA Policy in accordance with Section 6(a);
(2) The Non-Foreign Person Certificates; and
(3) Conformed copies of the Deed and Note
and the original of the ▇▇▇▇ of Sale.
c. Closing Costs and Prorations.
(i) Closing Costs. Sellers shall pay
the cost for the Title Policy and all Endorsements. Sellers shall pay
county transfer taxes and one-half of the escrow fees applicable to
the sale. Buyer shall pay one-half of the escrow fees and all
recording fees attributable to the conveyance documents, and Sellers
shall pay indebtedness and recording fees attributable to the release
of any liens on the Property and the Equipment. All other costs and
charges of the escrow for the sale shall be paid in accordance with
local custom.
(ii) Prorations. Real estate taxes and
all other expenses normal to the operation and maintenance of the
Property and the Equipment shall be prorated as of 12:01 a.m. on the
Closing Date.
(iii) Escrow Cancellation Costs.
Notwithstanding the provisions of subsection (i) above, if Escrow
fails to close due to any Seller's default, such Seller shall pay all
Escrow cancellation charges. If Escrow fails to close due to Buyer's
default, Buyer shall pay all Escrow cancellation charges. If Escrow
fails to close for any reason other than the foregoing, Buyer and
Sellers shall each pay one-half (1/2) of any Escrow cancellation
charges. "Escrow cancellation charges" means all fees, charges, and
expenses incurred by Escrow Agent, including all expenses incurred in
connection with issuance of the Preliminary Report and other title matters.
13. Brokers. Buyer and Sellers each represent to the other
parties that they have not engaged any broker or finder in connection
with any of the transactions contemplated by this Agreement. Buyer
shall indemnify, defend and hold Sellers harmless from and against any
loss, cost or expense, including, but not limited to, attorneys' fees
and court costs, resulting from any claim against Sellers for any fee
or commission by any broker or finder claiming by or through Buyer.
Sellers shall indemnify, defend and hold Buyer harmless from and
against any loss, cost or expense, including, but not limited to,
attorneys' fees and court costs, resulting from any claim for a fee or
commission by any broker or finder claiming by or through any Seller.
The covenants contained herein shall survive the Close of Escrow.
14. Sellers' Representations, Warranties and Covenants.
a. Sellers hereby make the following representations and
warranties to Buyer which representations and warranties shall survive
the Close of Escrow for a period of twelve (12) months (at which time
these representations and warranties shall expire):
(i) Litigation; Government Action.
Except as disclosed to Buyer in writing, there is no claim,
litigation, or notice that the Property, the Equipment or the
Intellectual Property is in violation of any law, or that any
governmental investigation is presently pending with respect to which
any Seller has been served with process or other notice thereof or, to
the best of Sellers' knowledge, otherwise pending or threatened,
against or relating to the Property, the Equipment, or the
Intellectual Property. Except for the Assumed Liabilities, there is no
Liability which will become a Liability of Buyer following the Closing;
(ii) Condemnation. There is presently
no pending condemnation of the Property or any part thereof with
respect to which any Seller has been served with process or other
notice thereof nor, to the best of Sellers' knowledge, is any such
condemnation otherwise pending or contemplated.
(iii) Leases. There are no leases or
other occupancy agreements relating to the Property.
(iv) Hazardous Materials.
(1) For purposes hereof, "Hazardous
Materials" shall mean any and all asbestos,
radioactive material, hazardous waste, toxic
substance or related material, including but
not limited to those materials and substances
defined as "hazardous substances", "hazardous
materials", "hazardous wastes" or "toxic
substances" in any Georgia or federal law or
regulation.
(2) Sellers have not released or discharged,
or caused to be released or discharged, upon
the Property any Hazardous Materials, and to
the best of Sellers' knowledge there are no
Hazardous Materials present on, in, or under
the Property.
(3) To the best of Sellers' knowledge, the
Property Documents are all of the documents
and reports in Sellers' possession
pertaining to Hazardous Materials on or at
the Property.
(v) Property Documents. There are no
other documents or reports in Sellers' possession or under Sellers'
control other than the Property Documents, describing the condition of
the Property or concerning the presence of Hazardous Materials, the
geotechnical condition of the soils, or other like physical condition
of the Property as of the Execution Date.
b. Status and Authority. ▇▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ are
individual residents of the State of Georgia and Avery Georgia is a
corporation organized and in good standing in the State of Georgia,
and each has the power and authority to enter into this Agreement. No
other authorizations or approvals, whether of governmental bodies or
otherwise, will be necessary in order to enable Sellers to enter into
or to comply with the terms of this Agreement.
c. Binding Effect of Documents. This Agreement and the
other documents to be executed by Sellers hereunder, upon execution
and delivery thereof by Sellers, will have been duly entered into by
Sellers, and will constitute legal, valid and binding obligations of
Sellers. Neither this Agreement nor anything provided to be done under
this Agreement, violates or shall violate any contract, document,
understanding, agreement, or instrument to which either Seller is a
party or by which they are bound.
d. "Best Knowledge" Definition. For purposes of this
Section 11, the term "to the best of a Seller's knowledge" shall mean
current actual knowledge after usual inquiry in connection with the
operation of the Property, the Equipment, and the Intellectual
Property.
e. "As-Is" Condition. Except as expressly provided in
this Agreement, Sellers make no representations or warranties of any
kind, express or implied, written or oral, as to the physical
condition of the Property and the Equipment; the uses thereof or any
limitations thereon, including, without limitation, zoning,
environmental or other laws, regulations or governmental requirements;
the utilities or other physical equipment and fixtures on the
Property, the costs of operating the Property or any other aspect of
the economic operations on the Property; the possibility of future
assessments of charges being levied against the Property or imposed as
a condition to development or construction; or the condition of the
soils or groundwater of the Property. Except as provided herein, Buyer
specifically acknowledges that it is acquiring the Property and the
Equipment in an "as-is" condition (as such term is most broadly
construed), in reliance upon its own inspection and investigation of
the Property and the Equipment.
15. Loss by Fire or Other Casualty; Condemnation.
a. Condemnation and General Casualty. Buyer shall be
bound to purchase the Property for the full Purchase Price as required
by the terms hereof, without regard to the occurrence or effect of any
damage to or destruction of the Equipment or any improvements or
condemnation of any portion of the Property. In the event of a
casualty, Buyer may elect to purchase the Property and the Equipment
pursuant to the terms of this sub-paragraph (a) or to require Sellers
to replace and/or repair the Equipment and to repair and complete the
Improvements pursuant to sub-paragraph (c). Such election shall be
made by written notice given within thirty (30) days following the
casualty. If Buyer elects to proceed pursuant to this sub-paragraph
(a), the Purchase Price shall be credited by the amount of any
insurance proceeds or condemnation awards (excluding proceeds or
awards payable in respect of carrying costs or other costs born by
Sellers and not subject to adjustment of the Purchase Price as
provided herein) collected by Sellers as a result of any such damage
or destruction or condemnation less any monies actually expended by
Sellers to repair any damage, plus any deductible amounts attributable
to such damage or destruction, or such proceeds shall be assigned to
Buyer if not then collected.
b. Cooperation of Sellers. If Sellers assign the proceeds
of any insurance policy to Buyer pursuant to Section 12(a), Sellers
shall cooperate with Buyer in presenting and prosecuting the claim
with Sellers' insurance carriers, shall follow Buyer's instructions
with respect thereto (except to the extent Sellers are advised by
counsel that following a particular instruction would expose Sellers
to liability, or to the extent Sellers would incur additional cost to
follow such instruction which is not paid by Buyer), and will not
settle any such claim without Buyer's written approval.
c. Insurance. Sellers shall purchase and keep in force a
policy or policies of fire and property damage insurance (including
coverage for flood and earthquake, if available) covering loss or
damage to the Property (including the improvements) and the Equipment
in the amount of the full replacement value thereof. In the event of a
casualty and election by Buyer (pursuant to sub-paragraph (a) above)
to require Sellers to replace the Equipment and to repair and complete
the Improvements, Sellers shall be obligated to do so pursuant to the
terms and conditions hereof subject to extension of all of the dates
for performance and the closing date for the delay caused by the
casualty. In such event there shall be no adjustment to the Purchase
Price for increase costs sustained by Sellers (whether or not such
costs are covered by insurance) in connection with or caused by the casualty.
16. Successors and Assigns. The terms, covenants, and
conditions herein contained shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto.
17. Entire Agreement. This Agreement contains all of the
covenants, conditions and agreements between the parties and shall
supersede all prior correspondence, agreements, and understandings,
both oral and written. No provisions of this Agreement may be amended
or modified in any manner except by an agreement in writing duly
executed by the parties hereto.
18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia as
applied to agreements among Georgia residents which are entered into
and performed entirely within the State of Georgia.
19. Attorneys' Fees; Arbitration.
a. Attorneys' Fees. In the event of any litigation
or arbitration regarding the rights and obligations under this
Agreement, the prevailing party shall be entitled to recover, in
addition to damages, injunctive or other relief, reasonable attorneys'
fees, expert witness fees, and court costs.
b. Arbitration of Disputes. ANY CONTROVERSY OR CLAIM
ARISING OUT OF THIS AGREEMENT SHALL BE SETTLED BY ARBITRATION IN
ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION FOR
THE ARBITRATION OF COMMERCIAL DISPUTES, AND JUDGMENT ON THE AWARD
RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. THE PREVAILING PARTY IN SUCH ARBITRATION SHALL BE
ENTITLED TO ATTORNEYS' FEES AND COSTS.
20. Notices. All notices required or permitted to be
given pursuant to the terms hereof shall be in writing and either
delivered by hand delivery, professional courier service which
provides written evidence of delivery or deposited in the United
States mail, registered or certified, postage prepaid and addressed as
follows:
To Sellers:
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Sports Turf, Inc.
#▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇
To Buyer:
▇▇▇▇▇ Sports Turf, Inc.
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
The foregoing addresses may be changed by written notice to the other
party as provided herein. Notices shall be deemed delivered and
received, in the case of personal delivery or delivery by courier as
aforesaid, on the day physically delivered to the indicated addressee,
and in the case of delivery by United States mail, three (3) Business
Days after deposit in the United States mail as aforesaid.
21. Exhibits. All of the following exhibits described in
this Agreement are incorporated herein by this reference and made a
part hereof:
Exhibit 1 Description of the Land
Exhibit 2 Description of the Equipment
Exhibit 3 Description of the Intellectual Property
Exhibit 4 Description of Assumed Liabilities
Exhibit 5 Description of Assumed Customer Contracts
Exhibit 6 Assignment of Intellectual Property
Exhibit 7 Description of the Excluded Assets
Exhibit 8 Description of the Excluded Liabilities
Exhibit 9 Form of the Note
22. Purchase Price Allocation. The parties hereby agree that
the Purchase Price shall be allocated to the Acquired Assets and
Assumed Liabilities in the manner determined by Buyer. The Parties
covenant and agree to file all federal, state, and local Tax returns
in accordance with such allocations and to report the Closing as a
taxable transaction.
23. Transfer Taxes. All transfer, gains, sales, bulk sales, use
and similar conveyance Taxes imposed by reason of the transactions
contemplated hereby and any deficiency, interest or penalty asserted
with respect thereto shall be paid in accordance with local law and custom.
24. Authority. Each person executing this Agreement on
behalf of a party to this Agreement hereby represents and warrants
that he or she has authority to execute this Agreement on behalf of
such party.
25. Headings. Headings at the beginning of any paragraph
or Section of this Agreement are solely for the convenience of the
parties and are not a part of this Agreement or to be used in the
interpretation hereof.
26. Survival. The representations, warranties and
covenants of the parties hereto shall survive the Close of Escrow, or
the termination of the Agreement if the Close of Escrow does not
occur, subject to the express limitations on survivability contained
in this Agreement.
27. Waiver. No waiver by Buyer or Seller of a breach of
any of the terms, covenants, or conditions of this Agreement by the
other party shall be construed or held to be a waiver of any
succeeding or preceding breach of the same or any other term, covenant
or condition herein contained. No waiver of any default by Buyer or
Seller hereunder shall be implied from any omission by the other party
to take any action on account of such default if such default persists
or is repeated, and no express waiver shall affect a default other
than as specified in such waiver. The consent or approval by Buyer or
a Seller to or of any act by the other party requiring the consent or
approval of the first party shall not be deemed to waive or render
unnecessary such party's consent or approval to or of any subsequent
similar acts by the other party.
28. Confidentiality. Buyer and Sellers shall maintain this
Agreement in the terms and conditions of confidence except as required
by law and except as required in connection with the performance of
each of the obligations of Buyer and Sellers hereunder.
Notwithstanding anything to the contrary herein, the provisions of
this Section 25 shall be separate and severable from all of the other
provisions of this Agreement. A breach or alleged breach of the
provisions of this Section 25 shall not be grounds for termination of
this Agreement or otherwise excuse the performance of any other
obligations hereunder.
29. Severability. If any phrase, clause, sentence, paragraph,
section, article, or other portion of this Agreement shall become
illegal, null or void or against public policy, for any reason, or
shall be held by any court of competent jurisdiction to be illegal,
null or void or against public policy, the remaining portions of this
Agreement shall not be affected thereby and shall remain in force and
effect to the fullest extent permissible by law.
30. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the dates set forth next to their respective
signatures below.
BUYER: ▇▇▇▇▇ Sports Turf, Inc., a Nevada
Corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
Its President
▇▇▇. ▇▇▇▇▇: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇. ▇▇▇▇▇: /s/▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ GEORGIA: ▇▇▇▇▇ SPORTS TURF, INC., A Georgia
Corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
Its President
EXHIBIT 1
[Description of Property]
All of that tract or parcel of land situated, lying and being
in Land ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ and 3rd Section of ▇▇▇▇▇ County,
Georgia, and being ▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, formerly the
property of Celanese Fibers Company, and being more particularly
described as follows:
BEGINNING at a point formed by the NW intersection
Of Celanese Drive and Riverside Industrial Drive West; thence
S 88 degrees 2 min W 468.95 feet along the northern right of
Way of Celanese Drive to a point; thence N 2 degrees 03 minutes
36 seconds W 330.7 feet to a point; thence N 88 degrees 5 minutes
E 469.78 feet to a point on the western right of way of Riverside
Industrial Drive West; thence S 1 degree 55 minutes E 330.29 feet along
the western right of way of Riverside Industrial Drive West to the POINT
OF BEGINNING.
EXHIBIT 2
[Description of the Equipment]
Quantity Description
One CTS SN 3502070 Remfg No 2539
One Model 1973 15' Tufting Machine
w/ access. and motors
One Tufting Machine and motors
Two Double desk ▇▇▇▇▇ with nylon tubing And decking
Two mending gun assembly
EXHIBIT 3
[Description of the Intellectual Property]
All of ▇▇. ▇▇▇▇▇'▇ and ▇▇▇▇▇ Georgia's right, title and
interest in and to, the following patents (including any reissues,
continuations-in-part, revisions, extensions, and reexaminations
thereof), all related documentation, including, without limitation,
all related copyrights, if any, and the exclusive right to enforce the
Patents in the United States and throughout the world in the sole name
of Buyer, its successors or assigns, including all rights to profits
and damages by reason of past infringement by any party or parties,
including the right to ▇▇▇ and collect same for Buyer's and Buyer's
successors and assigns own use and benefit, free and clear of any and
all liens, encumbrances, or third party claims.
Quantity Description
One(1) Invention entitled "Artificial Turf with
Granule Retaining Fibers, for which an
Application for Letters Patent of the
United States was filed in the United
States Patent and Trademark Office on
December 10, 2003, under Serial No. 10/733,806
EXHIBIT 4
[Description of the ASSUMED LIABILITIES]
Existing first mortgage indebtedness ("Bank Debt") encumbering the
Property, with a remaining balance due as of the date of this
Agreement of approximately Two Hundred Fifteen Thousand Dollars
($215,000).
EXHIBIT 5
[Description of the ASSUMED CUSTOMER CONTRACTS]
[See Attached schedule, consisting of 3 pages, incorporated herein by
reference]
EXHIBIT 6
ASSIGNMENT
WHEREAS, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and/or ▇▇▇▇▇ Sports Turf, Inc., a
Georgia corporation ("Assignors"), own or have rights to the Invention
(the "Invention") entitled "Artificial Turf with Granule Retaining
Fibers, for which an Application for Letters Patent of the United
States was filed in the United States Patent and Trademark Office on
December 10, 2003, under Serial No.10/733,806; and
WHEREAS, ▇▇▇▇▇ Sports Turf, Inc., a Delaware corporation
("Assignee"), wishes to acquire full rights and ownership of such
Invention.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Assignors
hereby grant, convey, assign and transfer to the Assignee and the
Assignee's successors and assigns, Assignors' entire right, title and
interest in and to such Invention, including all corresponding
applications such as continuations, continuations-in-part,
divisionals, provisionals, renewals, revivals, reissues,
reexaminations, extensions, and foreign counterparts thereof, along
with the subject matter of any and all claims which may be obtained in
the aforementioned, in the United States and every foreign country,
including all rights to profits and damages by reason of past
infringement by any party or parties, either the right to ▇▇▇ and
collect same for Assignee's, and Assignee's successors and assigns own
use and benefit.
UPON SAID CONSIDERATION, Assignors appoint Assignee and
Assignee's successors and assigns as their attorney-in-fact to act in
Assignors' names and places, to execute, deliver and record any
document or instrument of assignment or conveyance necessary to
perfect, grant and confirm the rights granted herein, and Assignors
hereby further convey to the Assignee the right to make application
in, prosecute, receive and enforce in their own behalf and name such
Invention.
IN WITNESS WHEREOF, Assignors have caused this Assignment to
be duly executed on the date shown below.
▇▇▇▇▇ SPORTS TURF, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
DATE: 12-19-2003 DATE: 12-19-2003
EXHIBIT 7
[Description of the EXCLUDED ASSETS]
There shall be excluded from the definition of Acquired Assets, and
there shall be no conveyance, sale, transfer, assignment or delivery
to Buyer of:
1. Any Inventory or other assets disposed of by ▇▇. ▇▇▇▇▇ or
▇▇▇▇▇ Georgia between the Execution Date and the Closing Date in the
ordinary course of business consistent with this Agreement;
2. Any Accounts Receivable liquidated by ▇▇. ▇▇▇▇▇ or ▇▇▇▇▇
Georgia between the Execution Date and the Closing Date in the
ordinary course of business consistent with this Agreement;
3. All capital stock of ▇▇▇▇▇ Georgia;
4. ▇▇. ▇▇▇▇▇'▇ rights under U.S. Patent No. 5,976,645; and
5. All consideration to be received by Sellers in the
transactions contemplated by this Agreement.
EXHIBIT 8
[Description of the EXCLUDED LIABILITIES]
1. Except as expressly provided to the contrary in Section 5 of
the Agreement, Buyer shall not by the execution and performance of the
Agreement, or otherwise under any circumstance, assume or otherwise be
responsible for any Liability or obligation of any nature of Sellers,
or Claims of such Liability or obligation, including, without
limitation, those arising from: (a) all Taxes of any kind whatsoever
arising from the Acquired Assets or operation of the Business, but
only to the extent attributable to any Tax Period prior to the
Closing; (b) any occurrence or circumstance (whether known or unknown)
which occurs or exists prior to the Closing Date and which
constitutes, or which by the lapse of time or delivery of notice (or
both) would constitute, a breach or default under any Customer
Contracts (whether written or oral); (c) any occurrence or
circumstance (whether known or unknown) which occurs or exists prior
to the Closing Date and which constitutes, or which by the lapse of
time or delivery of notice (or both) would constitute, a violation of
the requirements of any Governmental Authority or of the rights of any
third person, including, without limitation, requirements relating to
the reporting or payment (or both) of federal, state, local or foreign
income, property or other Taxes; (d) Indebtedness of Sellers; (e) any
environmental, Liabilities for death or destruction of property
or any Liabilities for breach of warranties of Sellers in the sale and
distribution of Products or any Liabilities for acts or omissions of
Sellers or their employees prior to the Closing Date, in each case
arising from events or occurrences which occurred prior to the Closing Date;
2. Any Liabilities accruing on or prior to the Closing relating
to Sellers' employment or termination of Sellers' employees that are
not Assumed Liabilities;
3. Any Liability arising out of any litigation pending on the
Closing Date, whether or not disclosed to Buyer; and
4. Any other Claims of any kind whatsoever or any other
Liabilities of Sellers, direct or indirect.
The Parties agree that Buyer shall not be construed as the successor
of any of the Sellers, and Sellers shall retain, pay, perform and
discharge such Excluded Liabilities.
EXHIBIT 9
[Form of the NOTE]
PROMISSORY NOTE
$200,000 December 19, 2003
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇ Sports Turf, Inc., a
Delaware corporation ("Maker"), hereby promises to pay to the order of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual residing in the State of Georgia,
("Payee"), in lawful money of the United States of America, the
principal sum of Two Hundred Thousand Dollars ($200,000) in seven
installments, in the following amounts and at the following times:
Installment Due Date Principal Installment Amount
March 31, 2004 Twenty-five Thousand Dollars (25,000.00)
June 30, 2004 Twenty-five Thousand Dollars (25,000.00)
September 30, 2004 Twenty-five Thousand Dollars (25,000.00)
March 31, 2005 Twenty-five Thousand Dollars (25,000.00)
June 30, 2005 Twenty-five Thousand Dollars (25,000.00)
September 30, 2005 Twenty-Five Thousand Dollars (25,000.00)
March 30, 2006 Fifty Thousand Dollars (50,000.00)
No interest shall accrue or be due on this note.
This note may be prepaid in whole or in part, without premium,
penalty or discount, at any time, or from time to time, at the option
of the undersigned.
The occurrence of any of the following events shall constitute
an Event of Default under this note:
(a) the undersigned shall fail to make any payment of
principal due hereunder for more than fifteen business days after the
due date thereof;
(b) the undersigned shall commence any case or proceeding
seeking to have an order for relief entered on its behalf as debtor or
to adjudicate it as bankrupt or insolvent or seeking reorganization,
liquidation, dissolution, winding-up, arrangement, composition or
readjustment of its debts or any other relief under any bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement,
composition, readjustment of debt or other similar act or law of any
jurisdiction, domestic or foreign, now or hereafter existing; or the
undersigned shall apply for a receiver, custodian or trustee (other
than any trustee appointed as a mortgagee or secured party in
connection with the issuance of indebtedness for borrowed money of the
undersigned) of it or for all or a substantial part of its property;
or the undersigned shall make a general assignment for the benefit of
creditors; or the undersigned shall take any corporate action in
furtherance of any of the foregoing; or
(c) an involuntary case or other proceeding shall be commenced
against the undersigned with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter
in effect seeking the appointment of a trustee, receiver, liquidator,
custodian or similar official of it or any substantial part of its
property; and such case or proceeding (i) results in the entry of an
order for relief or a similar order against it or (ii) shall continue
unstayed and in effect for a period of 60 consecutive days.
Upon the occurrence of an Event of Default, the unpaid
principal balance of this note shall become immediately due and
payable, without presentment, demand, protest or other formalities of
any kind, all of which are hereby expressly waived by the undersigned.
The substantive laws of the State of Georgia shall govern the
validity, construction, enforcement and interpretation of this note.
In the event of a dispute involving this note or any other instruments
executed in connection herewith, the undersigned irrevocably agrees
that venue of such dispute shall lie exclusively in any court of
competent jurisdiction in the County of ▇▇▇▇▇, Georgia.
This Note is secured by a second mortgage of even date,
encumbering the interest of Maker in real property located at ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇, the terms and conditions of
which are incorporated herein by reference.
▇▇▇▇▇ SPORTS TURF, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: President