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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
February 26, 1997
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Date of Report (date of earliest event reported)
LAS VEGAS DISCOUNT GOLF & TENNIS, INC.
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Exact name of Registrant as Specified in its Charter
Colorado 0-17436 84-1034868
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State or Other Jurisdiction Commission File IRS Employer Identification
of Incorporation Number Number
5325 South Valley View Boulevard, Suite 10
Las Vegas, Nevada 89118
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Address of Principal Executive Offices, Including Zip Code
(702) 798-7777
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Registrant's Telephone Number, Including Area Code
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On February 26, 1997, Las Vegas Discount Golf & Tennis, Inc. (the
"Company") and its majority-owned subsidiary Saint Andrews Golf Corporation
("Saint Andrews") sold certain of its assets, and transferred certain
liabilities to an unrelated entity ("Buyer") in a transaction pursuant to
the Agreement for the Purchase and Sale of Assets (see Exhibit 10). In
particular, the Company sold all of its interest in three company-owned "Las
Vegas Discount Golf & Tennis" retail stores located in the Los Angeles,
California metropolitan area including inventory, fixtures and other property,
and certain inventory and assets at the Company's headquarters relating to its
business of selling golf and tennis equipment on a wholesale basis to
franchisees of Saint Andrews. Saint Andrews sold all of its interest in its
business of franchising "Las Vegas Discount Golf & Tennis" retail stores,
including its rights under agreements with franchisees, the right to franchise
such stores, and the rights to related trade names and marks. The Buyer also
assumed certain trade payables of the two companies.
In connection with the sale of the above-described assets, the Company
and Saint Andrews agreed not to compete with the Buyer in the golf equipment
business except that Saint Andrews is permitted to sell golf equipment at
SportPark and driving range facilities which it may operate. In addition, the
Buyer granted to Boreta Enterprises, Ltd., a limited partnership owned by Vaso
Boreta, the Company's President, Ron Boreta, the President of Saint Andrews,
and John Boreta, a principal shareholder of the Company, the right to operate
"Las Vegas Discount Golf & Tennis" stores in southern Nevada, except for
Summerlin, Nevada.
The total purchase price for the transaction was $5,354,287.25 of which
$4,600,000 was paid in cash, $203,701.62 was paid with a short-term promisory
note, $200,000 was placed in escrow pending the accounting of inventory and
trade payables, $200,000 was placed in escrow for two years to cover potential
indemnification obligations, $60,475 was withheld for sales taxes, and
$29,635.63 was withheld for accrued vacation liabilities. Of the total
purchase price, $2,603,787.25 was allocated to the Company and $2,750,500 was
allocated to Saint Andrews.
As a result of the sale of assets, the Company's business now consists
of the operation of a Las Vegas Discount Golf & Tennis retail store at 2200
Rainbow Boulevard South in Las Vegas, Nevada, and its ownership of a majority
of Saint Andrews. Saint Andrews' business now consists of developing its All
American SportPark program and building its first SportPark in Las Vegas,
Nevada.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(b) PRO FORMA FINANCIAL INFORMATION. The following pro forma financial
statements are filed herewith:
Introduction to Pro Forma Condensed Financial Statements F-1
Pro Forma Condensed Consolidated Balance Sheet as of
September 30, 1996 F-2
Pro Forma Condensed Consolidated Statement of Operation
for the Nine Month Period Ended September 30, 1996 F-3
Pro Forma Condensed Consolidated Statement of Operation
for the Twelve Month Period Ended December 31, 1995 F-3
Notes to Pro Forma Condensed Consolidated Financial
Statements F-4
(c) EXHIBITS. The following exhibits are filed herewith:
EXHIBIT
NUMBER DESCRIPTION
10 Agreement for the Purchase and Sale of Assets
10.1 Amendment dated February 26, 1997, to the Agreement for the
Purchase and Sale of Assets
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LAS VEGAS DISCOUNT GOLF & TENNIS, INC.
PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
INTRODUCTION TO PRO FORMA CONDENSED FINANCIAL STATEMENTS
The accompanying pro forma condensed financial statements present pro forma
financial information for Las Vegas Discount Golf & Tennis, Inc. ("LVDGT") on
a consolidated basis giving effect to the February 26, 1997 sale of certain of
its assets and business segments, and the transfer of certain liabilities to
an unrelated buyer who has incorporated under the name Las Vegas Golf &
Tennis, Inc. in a transaction pursuant to the "Agreement for the Purchase and
Sale of Assets" previously described.
The accompanying pro forma condensed consolidated balance sheet as of
September 30, 1996 is presented on the assumption that the transaction
occurred as of that date.
The accompanying pro forma condensed consolidated statements of operations
cover the year ended December 31, 1995 and the nine month period ended
September 30, 1996 for LVDGT. Both statements of operations have been
presented on the assumption that the disposition occurred at the beginning of
the earliest period presented.
The pro forma condensed consolidated financial statements are not necessarily
indicative of the results that will be achieved for future periods as a result
of the disposition of these assets and business segments by LVDGT as
previously described. These pro forma financial statements and the related
notes thereto should be read in conjunction with the historical financial
statements of LVDGT.
F-1
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LAS VEGAS DISCOUNT GOLF & TENNIS, INC.
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
AS OF SEPTEMBER 30, 1996
(IN THOUSANDS)
Pro Forma
September 30, Pro Forma September 30,
1996 Adjustments Ref 1996
------------ ----------- --- -----------
Cash and cash equivalents $ 3,754 $ 4,600 1 $ 8,354
Restricted cash in escrow and note
from sale of assets and segments - 754 1 754
Accounts receivable from franchises,
net 485 (283) 1 202
Lease termination receivable 3,123 - 3,123
Inventories 3,018 (2,450) 1 568
Other current assets 73 - 73
Total current assets 10,453 2,621 13,074
Property and equipment, net 1,995 (815) 1 1,180
Other assets 45 - 45
Total assets $ 12,493 $ 1,806 $ 14,299
Bank line of credit $ 468 $ - $ 468
Current portion of long-term debt 14 - 14
Accounts payable and accrued expenses 3,095 (1,463) 1 1,632
Current taxes payable - 1,176 1 1,176
Deferred franchise fee 182 (91) 1 91
Total current liabilities 3,759 (378) 3,381
Long-term debt 30 - 30
Note payable to shareholder 651 - 651
Deferred income tax liability 743 - 743
Deferred income 98 - 98
Minority Interest 3,418 - 3,418
Total liabilities 8,699 (1,554) 8,321
Stockholders' equity 3,794 2,184 1 5,978
Total liabilities and equity $ 12,493 $ 1,806 $ 14,299
The accompanying notes are an integral part of this pro forma condensed
consolidated balance sheet.
F-2
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LAS VEGAS DISCOUNT GOLF & TENNIS, INC.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATION
FOR THE NINE MONTH PERIOD ENDED SEPTEMBER 30, 1996
(IN THOUSANDS)
Pro Forma
September 30, Pro Forma September 30,
1996 Adjustments Ref 1996
------------ ----------- --- ------------
Net merchandise sales $ 7,741 $ (5,591) 2 $ 2,150
Franchise fees 160 (160) 2 -
Royalties 903 (903) 2 -
Other 190 (160) 2 30
Total revenues 8,994 (6,814) 2,180
Cost of sales 5,853 (4,484) 2 1,369
Selling, general and administrative 3,456 (1,728) 2 1,728
SportsPark development costs 207 - 207
Total expenses 9,516 (6,212) 3,304
Income (loss) before provision for
income taxes (522) 602 (1,124)
Provision (benefit) for income taxes - - -
Loss before minority interest (522) 602 (1,124)
Minority interest 187 104 2 291
Net loss $ (335) $ 498 $ (833)
Loss per share ($0.06) ($0.16)
Weighted average shares 5,319,000 5,319,000
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATION
FOR THE TWELVE MONTH PERIOD ENDED DECEMBER 31, 1995
(IN THOUSANDS)
Pro Forma
September 30, Pro Forma September 30,
1996 Adjustments Ref 1996
------------ ----------- --- -----------
Net merchandise sales $ 11,510 $ (8,984) 2 $ 2,526
Franchise fees 245 (245) 2 -
Royalties 1,209 (1,209) 2 -
Other 259 (167) 2 92
Total revenues 13,223 (10,605) 2,618
Cost of sales 9,201 (7,472) 2 1,729
Selling, general and administrative 4,144 (2,072) 2 2,072
SportsPark development costs 108 - 108
Total expenses 13,453 (9,544) 3,909
Income (loss) before provision for
income taxes (230) 1,061 (1,291)
Provision (benefit) for income taxes - - -
Loss before minority interest (230) 1,061 (1,291)
Minority interest 67 232 2 299
Net loss $ (163) $ 829 $ (992)
Loss per share ($0.03) ($0.19)
Weighted average shares 5,319,000 5,319,000
The accompanying notes are an integral part of these pro forma condensed
consolidated statements of operations.
F-3
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LAS VEGAS DISCOUNT GOLF & TENNIS, INC.
NOTES TO PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1996
1. This adjustment reflects the proceeds received by LVDGT resulting from the
sale of certain assets and business segments as well as the assignment of
certain liabilities to the Buyer. The total proceeds received, including the
assignment of liabilities, was $ 6,908,000 while the assets disposed of
totaled $ 3,548,000 resulting in an estimated gain of $ 2,184,000, net of
applicable income taxes of $1,176,000.
2. This adjustment reflects the elimination of the revenues and costs
associated with the disposition of assets related to the Company's three
retail stores in California and the franchise and wholesale segments of the
business. The entry also records management's estimate of the reduction in
specific costs related to the three retail stores and franchise and wholesale
business segments included in selling, general and administrative costs. The
estimated gain to be recognized on the disposition transaction has been
excluded from the pro forma condensed consolidated statements of operations.
F-4
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned, hereunto duly authorized.
LAS VEGAS DISCOUNT GOLF & TENNIS, INC.
Dated: March 13, 1997 By:/s/ Voss Boreta
Voss Boreta, President
AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS
THIS AGREEMENT, is made this 8th day of January, 1997, by Saint Andrew's
Golf Corporation and Las Vegas Discount Golf and Tennis (collectively
"Seller"), and Las Vegas Golf & Tennis, Inc., a Nevada corporation ("Buyer").
RECITALS:
A) Seller owns the franchise operation, commonly referred to as Las
Vegas Discount Golf and Tennis, including 42 separate franchise agreements and
any franchise agreement entered into by Seller prior to Closing (the
"Franchise Agreements") and three retail stores, commonly referred to as the
Encino, Westwood and LAX stores.
B) The Encino Store is commonly known by the street address 17255
Ventura Blvd., Encino CA 91316 and is located in the County of Los Angeles,
State of California (the "Encino Store").
C) The Westwood Store is commonly known by the street address 11103
West Olympic Blvd., Los Angeles, CA 90064 and is located in the County of Los
Angeles, State of California (the "Westwood Store").
D) The LAX Store is commonly known by the street address 5250 West
Century Blvd. #100, Los Angeles, CA 90045 and is located in the County of Los
Angeles, State of California (the "LAX Store" and collectively with the Encino
Store and the Westwood Stores, the "Stores").
E) The Seller utilizes the real property and improvements commonly
known by the street address 5325 So Valley View Blvd., Suite 10, Las Vegas, NV
89118, located in the County of Clark, State of Nevada, as the headquarters
for its franchise operation (the "Headquarters").
F) The Seller is indebted to certain trade suppliers. A complete
listing of all suppliers who have extended credit to the Seller as well as the
balance of the accounts as of October 31, 1996 is attached as Exhibit "A"
("Trade Payables").
G) Seller wishes to sell and Buyer wishes to buy certain of Seller's
assets associated with the Franchise Agreements, the Stores, and the
Headquarters, including inventory, leasehold rights, its goodwill, phone
numbers, trade names and marks, and those tangible assets listed on attached
Exhibit "B".
Therefore, in consideration of the mutual promises contained below, it
is agreed as follows:
AGREEMENT:
1. ASSETS BEING ACQUIRED.
Subject to the terms of this Agreement, Seller agrees to sell to
Buyer and the Buyer agrees to buy:
A. All equipment, furniture, trade fixtures and other personal
property listed on "Exhibit B" to be attached by Seller within 10 days of the
execution of this Agreement.
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B. The assignment of all franchisor rights under the Franchise
Agreements.
C. All inventory held for sale in the Stores and all golf
related inventory held in the Headquarters.
D. The assignment of Seller's leasehold interest in the Stores
and the Headquarters and any security deposit thereunder.
E. The agreement of Seller, and its officers and directors,
including Voss Boreta, not to engage in the ownership or operation of a
franchise of golf equipment suppliers nor to engage in the ownership or
operation of a retail golf equipment outlet within the continental United
States, except pursuant to the rights granted by Buyer to Boreta Enterprises,
Ltd. to use the name Las Vegas Discount Golf and Tennis for retail stores
within Southern Nevada, with reciprocal covenants not to compete, rights of
first refusal, and terms and conditions and as are mutually agreeable to Buyer
and Seller and except for the Seller's right to own or operate retail golf
equipment outlets in connection with Saint Andrews Golf Corporation's
SportsParks or driving ranges.
F. The assignment of all trade names and marks, subject to the
perpetual license granted to Boreta Enterprises, Ltd. to the complete and
exclusive rights to use the name Las Vegas Discount Golf and Tennis for retail
stores anywhere in Nevada South of a line between Parump, Nevada and Mesquite,
Nevada, except a specific designated area to be determined in Summerlin,
Nevada ("Southern Nevada") to be utilized by Buyer. In other words, subject
to the exclusion for Summerlin, there will be no limit on when or how many new
stores can be added by Boreta Enterprises, Ltd. in Southern Nevada. Boreta
Enterprises, Ltd. will agree to give Buyer at lease 30 days written notice
before opening any new store in Southern Nevada.Commencing five years
after Closing, if Buyer desires to open a store using the trade name Las Vegas
Discount Golf and Tennis in Southern Nevada, Buyer shall provide Boreta
Enterprises, Ltd. written notice of the proposed location. Boreta
Enterprises, Ltd. shall have 60 days to provide Buyer written notice of its
intent to open a retail store at the proposed location and then one year to
actually open the store. If Boreta Enterprises, Ltd. fails to either timely
provide notice of intent to open or timely open he store, Buyer shall have the
right to open a store at the subject location. Boreta Enterprises, Ltd. shall
also give written notice to Buyer of any proposed sale of any of its retail
golf stores in Southern Nevada ("Notice of Sale"). The Notice of Sale shall
advise Buyer of the identity of the proposed purchaser and all material terms
of the proposed sale. Except for transfers to the immediate family of Ronald
Boreta or Voss Boreta, Buyer shall have 30 days from the receipt of the Notice
of Sale to provide Boreta Enterprises, Ltd. with written notice that Buyer
will purchase the offered store or stores under substantially similar terms as
those contained in the Notice of Sale. If Buyer fails to provide notice that
Buyer will purchase the offered store or stores, then Boreta Enterprises, Ltd.
may sell the offered store or stores, but only to the identical purchaser and
under identical terms as those contained in the Notice of Sale. If Buyer
provides notice that Buyer will purchase the offered store or stores, then
Boreta Enterprises, Ltd. shall sell the offered store or stores to Buyer and
closing shall take place within 90 days of Buyer's notice to Boreta
Enterprises, Ltd.
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2. BASE PURCHASE PRICE AND PAYMENT THEREOF.
The Base Purchase Price to be paid by the Buyer to the Seller for all of
the assets except adjustments for Trade Payables and Inventory, shall be a
total of Five Million Dollars ($5,000,000.00). The Base Purchase Price shall
be payable as follows:
A. Fifty Thousand Dollars ($50,000.00) in an earnest money
deposit which shall be delivered contemporaneously with the execution of this
Agreement and held in the trust account of Krys Boyle Freedman Scott & Sawyer,
P.C. (the "Deposit"). The Deposit shall be held in a non-interest bearing
account. The Deposit shall be non-refundable and shall be paid to the Seller
at the Closing. In the event that this transaction does not close because the
Seller is in breach of this Agreement or there is a failure of a Condition
Precedent the Deposit shall be paid to the Buyer. If this transaction does
not close because the Buyer is in breach of this Agreement, the Deposit shall
be paid to the Seller.
B. Four Million Seven Hundred Fifty Thousand Dollars
($4,750,000.00) in cash or certified funds payable to Seller at Closing.
C. Two Hundred Thousand Dollars ($200,000.00) to be held in a
post closing escrow account to be released following the final accounting of
Inventory, Trade Payables, merchandise credits, and other Seller obligations
received by Buyer within 60 days of Closing.
3. ALLOCATION OF BASE PURCHASE PRICE.
Prior to Closing, Buyer and Seller shall reasonably and mutually
agree upon a written allocation of the Base Purchase Price between Franchise
Agreements, Equipment, Leasehold Improvements, Fixtures, Trade Name, Goodwill,
Phone Numbers, and Covenants Not to Compete.
4. ADDITIONAL PAYMENTS.
In addition to the Base Purchase Price, Buyer and Seller shall
make additional payments at Closing as follows:
A. Inventory of items held for sale in the Stores shall be
taken on December 31, 1996 at Seller's invoiced costs ("Inventory"). Trade
Payables shall also be calculated as of December 31, 1996. To the extent
Inventory exceeds Trade Payables by $800,000.00, the Base Purchase Price shall
be increased by the amount Inventory exceeds Trade Payables, less $800,000.00.
To the extent Inventory does not exceed Trade Payables by $800,000.00, the
Base Purchase Price shall be reduced by Trade Payables, plus $800,000.00, less
Inventory.
B. Taxes, insurance, rent and CAM charges shall be prorated
through and including Closing and paid as due before or at Closing by the
appropriate party.
C. Seller is responsible for paying any and all taxes of the
business accruing through Closing, but not thereafter, including but not
limited to, state and local sales and use taxes, unemployment taxes, state and
federal withholding taxes, and income taxes. Seller will pay when due any and
all taxes which may become payable as a result of this transaction, including
all sales and use taxes. At the time of Closing, Seller will produce
evidence, reasonable satisfactory to Buyer, that its portion of the taxes
which are due have been or will be paid. In addition, Seller will execute an
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agreement to hold Buyer harmless from any taxes which may be due and owing
arising from any time that Seller operated the business, to Closing, but not
thereafter.
D. Seller shall make all payments due to all employees
including wages, benefits, vacation time, sick leave, stock options and
retirement benefits vested or accruing through Closing. In addition, Seller
will execute an agreement to hold Buyer harmless from any claims for employee
compensation arising from any time prior to Closing, but not thereafter.
Buyer shall be responsible for preparing the hold harmless agreement.
E. Buyer shall assume the Trade Payables at Closing.
F. Buyer shall be responsible for any and all charges of any
nature relating to the operation of the premises from Closing and thereafter.
5. CONDITIONS PRECEDENT.
Closing of this Agreement is expressly conditioned upon the
satisfaction of the following conditions precedent:
A. Within 10 days of the execution of this Agreement, Seller
shall deliver to Buyer Exhibit A and Exhibit B. Buyer shall have 30 days from
the receipt of Exhibit A and Exhibit B to notify Seller, in writing, of any
unsatisfactory condition as to the content of Exhibit A or Exhibit B. If no
notice of unsatisfactory condition is given, any objection of Buyer based on
the content of Exhibit A or Exhibit B shall be waived. If notice of any
unsatisfactory condition is timely given, Seller shall elect to either
terminate the Contract and cause Buyer's earnest money deposit to be returned
or in the alternative to correct the unsatisfactory condition to the
reasonable satisfaction of Buyer.
B. Within 10 days of the execution of this Agreement, Seller
shall deliver to Buyer a copy of any filed UCC Financing Statement referencing
the Seller or any property located at the Stores or the Headquarters. Buyer
shall have 30 days from the receipt of the UCC Financing Statements to notify
Seller, in writing, of any unsatisfactory condition as to the UCC Financing
Statements. If no notice of unsatisfactory condition is given, any objection
of Buyer based on the UCC Financing Statements shall be waived. If notice of
any unsatisfactory condition is timely given, Seller shall elect to either
terminate the Contract and cause Buyer's earnest money deposit to be returned
or in the alternative to correct the unsatisfactory condition to the
reasonable satisfaction of Buyer.
C. Within 10 days of the execution of this Agreement, Seller
shall deliver to Buyer legible copies of each franchise agreement. Buyer
shall have 30 days from the receipt of all franchise agreements to notify
Seller, in writing, of any unsatisfactory condition as to the content of the
franchise agreements. If no notice of unsatisfactory condition is given, any
objection of Buyer based on the content of franchise agreements shall be
waived. If notice of any unsatisfactory condition is timely given, Seller
shall elect to either terminate the Contract and cause Buyer's earnest money
deposit to be returned or in the alternative to correct the unsatisfactory
condition to the reasonable satisfaction of Buyer.
D. Within 10 days of the execution of this Agreement, Seller
shall deliver to Buyer a written summary of all pending or threatened
litigation, including any disputes between Seller and its franchisees as well
as legible copies of any complaint demand or other written document relating
thereto (the "Litigation Summary"). Buyer shall have 30 days from the receipt
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of the Litigation Summary to notify Seller, in writing, of any unsatisfactory
condition as to the content of the Litigation Summary. If no notice of
unsatisfactory condition is given, any objection of Buyer based on the content
of the Litigation Summary shall be waived. If notice of any unsatisfactory
condition is timely given, Seller shall elect to either terminate the Contract
and cause Buyer's earnest money deposit to be returned or in the alternative
to correct the unsatisfactory condition to the reasonable satisfaction of
Buyer.
E. Within 10 days of the execution of this Agreement, Seller
shall deliver to Buyer copies of all personal property leases and supplier
agreements which will survive Closing. Buyer shall have 30 days from the
receipt of the copies of the personal property leases and supplier agreements
to notify Seller, in writing, of any unsatisfactory condition as to the
personal property leases and supplier agreements. If no notice of
unsatisfactory condition is given, any objection of Buyer based on the
disclosed personal property leases and supplier agreements shall be waived.
If notice of any unsatisfactory condition is timely given, Seller shall elect
to either terminate the Contract and cause Buyer's earnest money deposit to be
returned or in the alternative to correct the unsatisfactory condition to the
reasonable satisfaction of Buyer.
F. Within 10 days of the execution of this Agreement, Seller
shall deliver to Buyer a copy of the real property leases associated with the
Stores and the Headquarters and a name, address, and phone number of the
appropriate contact person for the landlords. Buyer shall have 30 days from
the receipt of the copy of real property lease to negotiate with landlords for
assumption of the leases or new replacement leases to the satisfaction of
Buyer. The effectiveness of any assumption or new lease shall be contingent
upon closing of this Agreement. If Buyer and landlord fail to execute
assumption agreements or new leases for the Stores and the Headquarters prior
to Closing, the Agreement shall terminate and earnest money deposit shall be
returned to the Buyer. In connection with the new lease, Seller shall assign
its security deposit to Buyer.
G. Immediately following the execution of this Agreement,
Seller shall allow Buyer and Buyer's agents reasonable accesses to the Stores
and the Headquarters for the purpose of assessing the physical condition of
the Stores and the Headquarters (the "Physical Inspection"). Buyer shall have
45 days from the execution of this Agreement to notify Seller, in writing, of
any unsatisfactory condition based on Buyer's Physical Inspection. If no
notice of unsatisfactory condition is given, any objection of Buyer based on
Buyer's Physical Inspection shall be waived. If notice of any unsatisfactory
condition is timely given, Seller shall elect to either terminate the Contract
and cause Buyer's earnest money deposit to be returned or in the alternative
to correct the unsatisfactory condition to the reasonable satisfaction of
Buyer.
H. Immediately following the execution of this Agreement,
Seller shall allow Buyer and Buyer's agents reasonable accesses to the books
and records, tax returns, sales tax receipts, supplier contracts and
compilations of Inventory types and levels. Buyer shall have 45 days from the
execution of this Agreement to notify Seller, in writing, of any
unsatisfactory condition based on Buyer's review of the books and records. If
no notice of unsatisfactory condition is given, any objection of Buyer based
on Buyer's review of the books and records shall be waived. If notice of any
unsatisfactory condition is timely given, Seller shall elect to either
terminate the Contract and cause Buyer's earnest money deposit to be returned
or in the alternative to correct the unsatisfactory condition to the
reasonable satisfaction of Buyer.
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I. Buyer shall assume no accounts payable or other obligations
of Seller except as specifically provided by this Agreement or as may
otherwise be agreed in writing prior to Closing. At Closing Seller shall
indemnify and hold Buyer harmless, including costs and attorney fees, from any
and all claims of Seller's creditors, not specifically assumed by Buyer.
Invoices of the Seller, which are received in the ordinary course of business
by the Buyer after Closing, shall be paid by the Buyer and debited to the
post-closing escrowed moneys provided by paragraph 2 C.
J. The representations and warranties of the Buyer and Seller
contained in this Agreement and the certificates and documents to be delivered
pursuant hereto, shall be true, complete, and correct when made, and as of the
Closing Date, and will not contain any untrue statement of a material fact
required to make the statements herein or therein not misleading. Buyer and
Seller shall have performed and satisfied all the covenants, agreements, and
conditions required by this Agreement to be performed and satisfied by it
hereunder.
K. Closing of this Agreement is contingent upon Buyer and
Seller executing mutually acceptable agreements as to the licensing of the
trade name, territories, and covenants not to compete by Seller and Buyer. If
Buyer and Seller are unable to reach mutually acceptable agreements as to the
licensing of the trade name, territories, and covenants not to compete prior
to Closing, this Agreement shall terminate and Buyer's earnest money deposit
shall be returned to Buyer.
L. Closing of this Agreement is contingent upon Buyer's review
and approval of all Inventory levels and types. If notice of any
unsatisfactory condition relative to Inventory is given at or prior to
Closing, Seller shall elect to either terminate the Contract and cause Buyer's
earnest money deposit to be returned or in the alternative to correct the
unsatisfactory condition to the reasonable satisfaction of Buyer.
M. Closing of this Agreement is contingent upon Buyer's review
and approval of all Trade Payable levels and types and Buyer's ability to
enter into agreements with trade suppliers whereby Buyer shall assume the
Trade Payables under terms consistent with generally prevailing trade
standards. If notice of any unsatisfactory condition relative to Trade
Payables is given at or prior to Closing, Seller shall elect to either
terminate the Contract and cause Buyer's earnest money deposit to be returned
or in the alternative to correct the unsatisfactory condition to the
reasonable satisfaction of Buyer.
N. Closing of this Agreement is contingent upon Buyer's
assessment and approval of the relocation of the Westwood Store and the
changing market of the Encino Store. Buyer shall have 15 days from the full
execution of this Agreement to notify Seller, in writing, of any
unsatisfactory condition as to the relocation of the Westwood Store and the
changing market of the Encino Store. If no notice of unsatisfactory condition
is given, any objection of Buyer based on the relocation of the Westwood Store
and the changing market of the Encino Store shall be waived. If notice of any
unsatisfactory condition is timely given, Seller shall elect to either
terminate the Contract and cause Buyer's earnest money deposit to be returned
or in the alternative to correct the unsatisfactory condition to the
reasonable satisfaction of Buyer.
O. Closing of this Agreement is contingent upon Buyer and
Seller executing a mutually acceptable allocation of the Base Purchase Price
between all the assets to be acquired. If Buyer and Seller are unable to
reach a mutually acceptable allocation of the Base Purchase Price prior to
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Closing, this Agreement shall terminate and Buyer's earnest money deposit
shall be returned to Buyer.
P. Closing of this Agreement is contingent upon Buyer and
Seller agreeing to the form of a mutually acceptable Estoppel Certificate to
be executed by each of the franchisees, certifying the validity of the
franchise agreements and the status of payments thereunder. If Buyer and
Seller are unable to draft a mutually acceptable Estoppel Certificate within
45 days of the execution of this Agreement, this Agreement shall terminate and
Buyer's earnest money deposit shall be returned to Buyer. Buyer shall be
responsible for drafting the Estoppel Certificate. Seller shall be
responsible for obtaining executed originals from the various franchisees, to
be delivered to the Buyer at Closing
6. REPRESENTATIONS AND WARRANTIES OF SELLER AND BUYER.
As an inducement to the Buyer to enter into this Agreement, Seller
represents and warrants to Buyer as follows:
A. The Seller has the power to own its properties and assets,
as otherwise set forth in this Agreement, and to carry on its business as
being conducted by it. The Seller has the power to assign and transfer to
Buyer all of the assets specified in this Agreement which are to be
transferred to the Buyer.
B. The execution and delivery of this Agreement does not and
the consummation of the transactions contemplated hereby will not violate any
provision of the documents controlling the operation of the Seller, not
violate any provision of the documents controlling the operation of the
Seller, not violate any provision of the Articles of Incorporation, By-Laws,
mortgage, lien, agreement, instrument, order, judgment or decree to which the
Seller is a party, or whereby it is bound, and will not violate any other
restriction of any other kind or character to which the Seller is subject.
The Seller has taken or will take action required by law, its Articles of
Incorporation and By-Laws, or otherwise, to authorize execution and delivery
of this Agreement and the consummation of the transactions described herein,
including compliance with any Bulk Sales Act then in affect in Nevada or
California.
C. There are no rights to acquire shares of Seller outstanding,
which rights require the holders thereof to approve the execution of this
Agreement or the consummation of the transactions covered hereby.
D. Seller has or will have by date of Closing, good and
marketable title to the assets, free and clear of all liens, encumbrances, and
leases except as otherwise set forth hereinabove.
E. The Seller has filed or will cause to be filed, all returns
for federal, state and local taxes which are due and that such returns are
accurate, to the best of Seller's knowledge. To the best of Seller's
knowledge, there are no assessments or additional taxes threatened against the
Seller or any of its properties. The Seller is not delinquent in the payment
of any tax assessment or governmental charge, does not have any tax
deficiencies imposed or assessed against it and has not executed any waiver of
the statute of limitations on the assessment or collection of any tax, which
actions in any manner would affect title to any of the property to be
transferred.
F. There are no actions, suits, or proceedings pending, or to
the knowledge of its officers, threatened against the Seller or any of its
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properties or any assets of its business, in law or in equity, which might
result in any judgment, order, injunction or decree having a material or
adverse affect upon its business operations, properties, assets or financial
condition, at this location.
G. There are no facts, known either to the officers or
directors of the Seller which due diligence would have disclosed, that would
affect materially or adversely the operation of Seller or the rights of the
Buyer under this Agreement. All books and records provided by Seller to Buyer
for review shall be true and accurate.
H. Seller shall use its best efforts to operate its business in
a reasonably competitive fashion through Closing. Seller shall not make any
significant change in Seller's operations or any expenditure outside the
ordinary course of business without Buyer's prior approval. A significant
change in Seller's operations or expenditure outside the ordinary course of
business shall include any single expenditure in excess of $50,000.00 or any
changes in compensation of Seller's Officers, Directors or Employees.
I. Buyer shall be a corporation duly organized, existing, and
in good standing under the laws of the State of Nevada, and authorized and
entitled to carry on its business in Nevada and California. It shall have no
subsidiaries or affiliates.
J. Buyer has full power and authority to enter into this
Agreement and to conclude the transaction described herein, and no other
contract or agreement prevents it from concluding the transaction described
herein.
K. Buyer shall, at Closing, deliver to Seller a duly executed
copy of its corporate resolution authorizing the transaction described herein,
which said resolution shall form a part of this Agreement.
7. CLOSING & POSSESSION.
The Buyer will be entitled to possession by virtue of ownership of
the assets acquired by the operation of this Agreement only upon Closing.
A. The Closing shall take place as soon as is reasonably
practical following the availability of the preliminary accounting from the
December 31, 1996 audit and the satisfaction of all Condition Precedents. The
hour and place of Closing will be that reasonably designated by Seller.
8. PERFORMANCE OF CONTRACT.
Time is of the essence hereof, and if any payment or other
material condition hereof is not made or performed by either the Seller or the
Buyer as herein provided, then this Agreement shall be null and void and of no
force and effect and both parties hereto shall be released from all
obligations hereunder, at the sole option of the party who is not in default.
However, in the event the Buyer elects to treat this Agreement as being in
full force and effect, then nothing herein shall be construed as to prevent
its specific performance, or damages, as the case may be.
9. RISK OF LOSS.
If before Closing any of the assets being acquired hereunder or
the premises out of which the Seller presently operates have suffered loss or
damage on account of fire, flood, accident, or any other cause or event, to an
extent which substantially affects the value of the same, Buyer shall have the
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right, in its sole discretion, to consummate this Agreement. In the event
Buyer elects to consummate this Agreement, Buyer will be entitled to all
insurance proceeds collectible by reason of such loss or damage on property
being purchased necessary to restore the property being purchased to the same
condition they were in prior to the loss or damage and Seller shall be entitle
to the balance of the proceeds, if any. If the Buyer does not so elect to
purchase, Seller shall have the right, and it shall be in lieu of all other
rights or remedies whatsoever, to terminate this Agreement, in which event
Buyer shall be entitled to recover the Deposit. If and in the event this
Agreement is terminated in accordance with the provisions of this paragraph,
all parties to this Agreement shall be released from any further liability
hereunder.
10. ITEMS TO BE DELIVERED AT CLOSING BY SELLER.
At Closing, the Seller shall deliver to Buyer the following:
A. A Bill of Sale and any and all other documents of transfer
or conveyance covering all assets described herein, free and clear of all
claims, charges, liabilities, leases, liens and encumbrances, subject to the
disclosures and exceptions made herein.
B. Any and all other documents as set forth in this Agreement
to be delivered by Seller.
C. Copies of all financing statements at the time on file,
having been filed by any secured party against the Seller which would affect
the title to any assets being acquired hereunder.
D. Any and all keys, combinations and other items necessary of
proper access to the premises.
11. ITEMS TO BE DELIVERED AT CLOSING BY BUYER.
At Closing, the Buyer shall deliver to the Seller the following:
A. The full and complete purchase price via cashier's check, or
certified funds, as set forth hereinabove.
B. An agreement as to the licensing of the trade name for use
by Boreta Enterprise, Inc., territories, and covenants not to compete by
Seller and Buyer.
12. ADDITIONAL DOCUMENTS AFTER CLOSING.
A. The parties hereto agree to execute and deliver any and all
other documents necessary and convenient to effectuate the sale and purchase
herein provided for, and both the Buyer and the Seller as an inducing
condition, represent that they have the authority to enter into this Agreement
and to make the foregoing commitments. In addition, Seller agrees that it
will from time to time at the request and expense of the Buyer, execute and
deliver or cause to be executed and delivered, all such further bills of sale,
assignments, instruments of transfer and agreements that may reasonably be
required by the Buyer in order to vest title of proof of the sale in the Buyer
to any and all of the properties or assets hereby conveyed or intended hereby
to be conveyed or for aiding the assisting in the performance or collection by
Buyer of any such assets or properties.
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13. PAYMENT OF TAXES AND ALLOCATION OF EXPENSES.
A. The Buyer and the Seller are individually responsible for
their own attorney's fees incurred in connection with the preparation of this
Agreement and all of the documents needed to consummate the transactions
described herein.
B. All other items, including all utility charges, personal
property taxes, and all other charges with respect to the assets being
acquired hereby, shall be prorated to Closing, and paid before or at Closing
by the respective parties.
14. LIABILITIES NOT ASSUMED.
Buyer shall assume only those liabilities listed in this
Agreement. It is expressly understood and agreed that Buyer shall not be
liable for any of the obligations or liability of the Seller, except as
otherwise set forth herein.
15. MISCELLANEOUS.
The following miscellaneous provision shall govern the
interpretation and consummation of the transactions described herein:
A. This Agreement shall be interpreted and construed in court
in accordance with the laws of the State of Colorado.
B. Should any clause or provision of this Agreement be declared
invalid, void, or voidable for any reason in whole or in part, any such
invalid, void or voidable clause or provision shall not affect the whole of
this Agreement, and the balance of the provisions hereof shall remain in full
force and effect to the same extent and in the same manner as if such invalid,
void or voidable clause or provision had been omitted from the terms and
conditions hereof, each of the parties hereto covenants and agrees with each
other that it would have executed this Agreement in accordance with its
provisions had such invalid, void or voidable clause or provision been omitted
herefrom.
C. Any notice, demand or communication under or in connection
with this Agreement which either party desires or is required to give to the
other, shall be deemed delivered when deposited in the United State mail,
postage prepaid, or when personally served upon the other party as follows:
If to the Seller: Ronald Boreta
Saint Andrew's Golf Corporation
5325 S. Valley View Blvd., Suite 10
Las Vegas, Nevada 89118
With a copy to: Jon D. Sawyer
1401 17th Street, Suite 460
Denver, CO 80202
If to the Buyer: Thomas E. Hurford
5776 So. Fulton Way
Englewood, CO 80111
With a copy to: Andrew C. Hamrick
5675 DTC Blvd., #115
Englewood, CO 80111
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16. SURVIVAL OF COVENANTS.
All of the representations, warranties, covenants and agreements
made in this Agreement or contained in the certificates or documents furnished
in connection herewith, shall survive the Closing date, and shall be
applicable and effective, notwithstanding any investigation to or after the
Closing date by the Buyer or the Seller, or their respective agents or
representatives.
17. BINDING EFFECT.
A. This Agreement shall be binding upon and insure to the
benefit of the parties hereto and their respective successors and assigns.
18. ENTIRE AGREEMENT:
This Agreement constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof. All previous negotiations,
and documents relating hereto are deemed by the parties to be merged in this
final writing.
19. TITLES.
The titles of the paragraphs of this Agreement are for convenience
of reference only, and are not to be considered in any fashion in construing
or interpreting this Agreement.
20. ASSIGNMENT.
The rights and obligations of either party pursuant to the terms
of this Agreement shall be assignable only with the prior written consent of
the other party.
21. COMMISSION.
Seller and Buyer each warrant to the other that neither has
engaged a broker or other entitled to a commission or other payment due as a
result of Closing. Seller and Buyer hereby indemnify and hold the other
harmless from any claim of commission by agents claiming through them.
BUYER:
Las Vegas Golf and Tennis, Inc.
a Nevada corporation
By: /s/ John E. Siipola 1/8/97
Name: John E. Siipola Date
Title: President
SELLER:
Las Vegas Discount Golf and Tennis
By: /s/ Voss Boreta 1/8/97
Name: Voss Boreta Date
Title: President
Saint Andrew's Golf Corporation
By: /s/ Ronald Boreta 1/8/97
Name: Ronald Boreta Date
Title: President
FIRST AMENDMENT TO
AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS
THIS AMENDMENT is made this 26th day of February 1997, by Saint Andrews
Golf Corporation, a Nevada corporation, and Las Vegas Discount Golf and
Tennis, Inc., a Colorado corporation (collectively "Seller"), and Las Vegas
Golf & Tennis, Inc., a Nevada corporation ("Buyer").
RECITALS:
A) Buyer and Seller have executed that Agreement for the Purchase and
Sale of assets dated January 8, 1997 (the "Agreement").
B) Buyer and Seller desire to amend the Agreement to reflect mutually
agreeable changes and certain concerns of Buyer generated by Buyer's due
diligence to date.
Therefore, in consideration of the mutual promises contained below, the
Agreement is amended as follows:
AMENDMENT:
1. The assignment of all franchisor rights under the Franchise
Agreements, provided by paragraph 1.B. of the Agreement, shall specifically
include all receivables from those Franchisees regardless of whether the
receivable accrued or became due prior to Closing ("Franchisee Receivables").
The Purchase Price shall be increased by $112,500.00 as payment for the
Franchise Receivables. Buyer shall have full and sole authority to settle,
discount, write off, or otherwise compromise all Franchise Receivables,
including those which accrued prior to Closing. After Closing, Seller shall
cease all attempts to collect Franchisee Receivables and any Franchisee
Receivables received by the Seller after Closing shall be forwarded to the
Buyer.
2. Trade Payables as defined in the Agreement shall include only those
liabilities which are listed on Attached Exhibit "A."
3. Final proration of Inventory and Trade payables shall be based on
1evels of Inventory and Trade Payables at C1osing. Buyer and Se11er shall
jointly conduct an accounting of Inventory and Trade payables as soon after
Closing as is reasonably practicable. To the extent Inventory exceeds Trade
Payables by $600,000.0O, the Base Purchase Price shall be increased by the
amount Inventory exceeds Trade Payables, 1ess $800,000.00. To the extent
Inventory does not exceed Trade Payables by $600,000.00, the Base Purchase
Price shall be reduced by Trade Payables, plus $800,000.00, less Inventory.
Closing shall occur based on mutually agreeable estimates of Inventory and
Trade at Closing. However, the calculation of the Total Purchase Price shall
be reapportioned as soon as is practical after the completion of the final
accounting of Inventory and Trade Payables following Closing. Upon the
completion of the final accounting for Inventory and Trade Payables, the
monies held in post closing escrow shall be forwarded to the Seller or Buyer,
as the case may be. If the escrow is insufficient to fund the entire balance
owed by Seller to Buyer or Buyer to Seller, such additional monies shall be
due and payable immediately following the release of the escrowed funds.
4. With respect to paragraph 5.F. of the Agreement, Buyer agrees that
when negotiating with landlords for the assumption or replacement of the real
property 1eases Buyer will use its best efforts to remove Seller from
liability for the leases.
5. Paragraph 5.P. of the Agreement shall be amended to read in its
entirety:
The copies of the Franchise Agreements provided to Buyer under separate cover
are true and correct copies of every currently effective franchise agreement
to which the Seller is a party. A true and correct receivables list showing
the total outstanding balance of each franchisee's accounts with the Seller
for franchise royalties, advertising fund contributions, branded merchandise,
and any other goods and services is also included on Exhibit B. Seller
warrants that these documents are true and correct and that Seller has no
knowledge of any claimed offset or defence to these documents.
6. Paragraph 6.B. of the Agreement shall be amended to read in its
entirety:
The execution and delivery of this Agreement does not and the consummation of
the transactions contemplated hereby will not violate any provision of the
documents controlling the operation of the Seller, not violate any provision
of the documents controlling the operation of the Seller, not violate any
provision of the Articles of Incorporation, By-Laws, mortgage, lien,
agreement, instrument, order, judgment or decree to which the Seller is a
party, or whereby it is bound, and will not violate any other restriction of
any other kind or character to which the Seller is subject. The Seller has
taken or will take action required by law, its Articles of Incorporation and
By-Laws, or otherwise, to authorize execution and delivery of this Agreement
and the consummation of the transactions described herein, except for
compliance with the Bulk Sales Act in California. Seller has requested the
Buyer to waive the requirements of the bulk transfer provision of the Uniform
Commercial Code and Buyer has acceded to this request. Seller represents and
warrants that there are no liens, encumbrances or security interests an any of
the Assets that have not been disclosed in Exhibit C, and warrants that the
title conveyed to the Buyer will be free and clear.
7. Paragraph 6.F. of the Agreement shall be amended to read in its
entirety:
There are no actions, suits, or proceedings pending, or to the knowledge of
its officers, threatened against the Seller or any of its properties or any
assets of its business, in law or in equity, which might result in any
judgment, order, injunction or decree having a material or adverse affect upon
its business operations, properties, assets or financial condition.
8. Paragraph 16. of the Agreement shall be amended to read in its
entirety:
All of the representations, warranties, covenants and agreements made in this
Agreement or contained in the certificates or documents furnished in
connection herewith, shall survive the Closing date, and shalt be applicable
and effective, notwithstanding any investigation to or after the Closing date
by the Buyer or the Seller, or their respective agents or representatives. The
representation warranties, covenants and agreements will survive the Closing
Date for up to two (2) years but under no circumstances wild their survival
exceed the applicable statute of limitations.
9. Except as modified by this Amendment, the Agreement shall remain in
full force. In case of Conflicts in the terms of the Agreement and this
Amendment, this Amendment shall control.
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BUYER:
Las Vegas Golf and Tennis, Inc.
a Nevada corporation
By:/s/ John E. Siipola
Name: John E. Siipola Date
Title: President
SELLER:
Las Vegas Discount Golf & Tennis, Inc.
a Colorado corporation
By: /s/ Voss Boreta
Name: Voss Boreta
Title: President
Saint Andrews Golf Corporation,
a Nevada corporation
By: /s/ Ronald Boreta
Name: Ronald Boreta
Title: President
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