<PAGE>
As filed with the Securities and Exchange Commission on June 21, 1996.
REGISTRATION NO. 333 -________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-4/A
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NATIONAL GOLF PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
MARYLAND 6798 95-4549193
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
1448 15TH STREET, SUITE 200
SANTA MONICA, CALIFORNIA 90404
(310) 260-5500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
EDWARD R. SAUSE
EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER,
SECRETARY AND DIRECTOR
NATIONAL GOLF PROPERTIES, INC.
1448 15TH STREET, SUITE 200
SANTA MONICA, CALIFORNIA 90404
(310) 260-5500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES OF ALL COMMUNICATIONS TO:
JOHN M. NEWELL, ESQ. GARY D. GILSON, ESQ.
LATHAM & WATKINS BLACKWELL SANDERS MATHENY WEARY & LOMBARDI
633 WEST FIFTH STREET 10855 WEST DODGE ROAD - SUITE 240
LOS ANGELES, CALIFORNIA 90071 OMAHA, NEBRASKA 68154
(213) 485-1234 (402) 691-5005
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this Registration Statement becomes effective and all other
conditions under the Acquisition Agreement (described in the Joint Proxy
Statement--Prospectus herein) are satisfied or waived.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box.
_______________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH AMOUNT TO BE MAXIMUM MAXIMUM
CLASS OF SECURITIES REGISTERED(1) AGGREGATE FEE(3) AMOUNT OF
TO BE REGISTERED OFFERING PRICE PER SHARE(2) OFFERING PRICE(2) REGISTRATION
<S> <C> <C> <C> <C>
Common Stock, $.01 par value... 2,128,000 $19.17 $40,786,649 $14,064.36
========================================================================================================
</TABLE>
(1) Represents the maximum number of shares of Common Stock, $.01 par value per
share ("NGP Common Stock"), of National Golf Properties, Inc. (the
"Registrant") issuable in connection with the transactions contemplated by
the Acquisition Agreement.
(2) The proposed maximum aggregate offering price is based on the aggregate
value of the shares of NGP Common Stock that NGP is required to issue in
connection with its purchase of certain assets from Golf Enterprises, Inc.
pursuant to the Acquisition Agreement. Such amount assumes that the average
closing price per share of NGP Common Stock on the New York Stock Exchange
(the "NYSE") for the ten days immediately preceding the second trading day
before the consummation of such asset purchase does not exceed $28.75. The
average of the high and low sales prices of a share of NGP Common Stock
reported on the NYSE on June 20, 1996 was $24.313. The proposed
maximum offering price per share is based upon the proposed maximum
aggregate offering price divided by 2,128,000, representing the maximum
number of shares of NGP Common Stock to be registered.
(3) The registration fee for the securities registered hereby has been
calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended (the "Securities Act"), as one twenty-ninth of one percent of the
proposed maximum aggregate offering price. A fee of $16,314.66 was paid on
March 19, 1996 pursuant to Rules 14a-6 and 0-11 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), in respect
of the transactions contemplated by the Acquisition Agreement upon filing by
the Registrant of a preliminary proxy statement relating thereto. Pursuant
to Rule 457(b) promulgated under the Securities Act and Section 14(g)(2) of
the Exchange Act and Rule 0-11 promulgated thereunder, the amount of such
previously paid fee has been credited against the registration fee payable
in connection with this filing. Accordingly, no additional fee is required
to be paid with this Registration Statement.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION"), ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Articles of Incorporation of the Registrant provide that none of its
directors or officers shall be liable for monetary damages to the Registrant or
its stockholders for breach of fiduciary duty as a director or officer to the
fullest extent permitted by the laws of the state of Maryland. Maryland law
allows the Registrant to limit such liability in all cases except for those
involving (i) actual receipt of an improper personal benefit by the director or
officer in money, property or services or (ii) active and deliberate dishonesty
by the director or officer established by a final judgment as being material to
the cause of action. In addition, the Maryland General Corporation Law (the
"MGCL") and the Registrant's Articles of Incorporation and Bylaws, under certain
circumstances, provide for the indemnification of the Registrant's directors,
officers, employees and agents against liabilities which they may incur in such
capacities. A summary of the circumstances in which such indemnification is
provided for is contained herein, but that description is qualified in its
entirety by reference to the MGCL and other Maryland statutes, the Registrant's
Articles of Incorporation and its Bylaws.
The Registrant's Articles of Incorporation authorize the Registrant to
indemnify its present and former directors and officers and to pay or reimburse
expenses in advance of the final disposition of a proceeding to the maximum
extent permitted from time to time by Maryland law. The Registrant's Bylaws
obligate the Registrant to indemnify present and former directors and officers
to the maximum extent permitted by Maryland law. The Registrant's Bylaws also
permit the Registrant to provide indemnification to a present or former director
or officer who served a predecessor of the Registrant in such capacity, and to
any employee or agent of the Registrant or a predecessor of the Registrant.
The MGCL permits the Registrant to indemnify its present and former
directors and officers, among others, against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by them in connection with
any proceeding to which they may be made a party by reason of their service in
those or other capacities unless it is established that (a) the act or omission
of the director or officer was material to the matter giving rise to the
proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty, (b) the director or officer actually received an improper
personal benefit in money, property or services, or (c) in the case of any
criminal proceeding, the director or officer had reasonable cause to believe
that the act or omission was unlawful. The termination of any proceeding by
judgment, order, or settlement does not create a presumption that the director
or officer did not meet the requisite standard of conduct, but termination by
conviction or plea of nolo contendere does create a rebuttable presumption that
such standard was not satisfied. In addition, the MGCL does not permit
indemnification in respect of any proceeding by or in the right of the
Registrant, if the director or officer is adjudged to be liable to the
Registrant.
Any indemnification pursuant to the preceding paragraph may not be made by
the Registrant unless authorized for a specific proceeding after a determination
has been made that indemnification of the director or officer is permissible in
the circumstances because such person has met the requisite standard of conduct.
The authorization and determination must be made by a majority of the
Registrant's directors not party to the proceeding (or in certain circumstances
a designated committee of directors), special legal counsel selected by the
Registrant's Board of Directors, or by the stockholders of the Registrant.
In addition, the MGCL requires the Registrant, as conditions to advancing
expenses, to obtain (i) a written affirmation by the director or officer of his
or her good faith belief that he or she has met the standard of conduct
necessary for indemnification by the Registrant as authorized by the
Registrant's Bylaws and (ii) a written statement by or on his or her behalf to
repay the amount paid or reimbursed by the Registrant if it shall ultimately be
determined that the standard of conduct was not met. Under the MGCL, rights to
indemnification and expenses are non-exclusive, in that they need not be limited
to those expressly provided by statute. As a result, under the MGCL and the
Registrant's Bylaws, the Registrant is permitted to indemnify its directors,
officers, employees and
II-1
<PAGE>
other agents, within the limits established by law and public policy, pursuant
to an express contract, bylaw provision, stockholder vote or otherwise.
Because the indemnification provisions of the Registrant's Articles and
Bylaws are tied to applicable Maryland law, they may be modified by future
changes in such law without further stockholder action. The Registrant's Bylaws
provide that amendment or repeal of the indemnification provisions of the
Registrant's Bylaws would be effective on a prospective basis only and neither
repeal nor modification of such provisions would adversely affect rights to
indemnification in effect at the time of any act or omission which is the
subject of a proceeding against an indemnified person.
Under the MGCL, the Registrant may purchase and maintain insurance on
behalf of its present and former directors and officers, among others, against
liability asserted against and incurred by such persons because of their
position, whether or not the Registrant would have the power to indemnify
against such liability under the provisions of the MGCL described above. The
Registrant has purchased and currently maintains such insurance on behalf of its
current directors and officers.
The MGCL and the Bylaws of the Registrant may permit indemnification for
liabilities arising under the Securities Act or the Exchange Act. The Board of
Directors of the Registrant has been advised that, in the opinion of the SEC,
indemnification for liabilities arising under the Securities Act or the Exchange
Act is contrary to public policy and is therefore unenforceable, absent a
decision to the contrary by a court of appropriate jurisdiction.
II-2
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
Exhibit Numbered
Number Description Page
- ------ ----------- --------
<C> <S> <C>
2.1 Asset Purchase Agreement and Agreement and Plan of Merger,
dated as of February 2, 1996, among Golf Enterprises, Inc.,
National Golf Properties, Inc. and GEI Acquisition
Corporation (including as exhibits a Stockholder Agreement,
dated as of February 2, 1996, by and among National Golf
Properties, Inc., GEI Acquisition Corporation, Robert H.
Williams, Golder, Thoma, Cressey Fund II and Golder, Thoma,
Cressey Fund III Limited Partnership, and a Termination Fee
Agreement, dated as of February 2, 1996, by and among GEI
Acquisition Corporation, Robert H. Williams, Golder, Thoma,
Cressey Fund II and Golder, Thoma, Cressey Fund III Limited
Partnership) (attached as Annex I to the Joint Proxy
Statement-- Prospectus included in this Registration
Statement)..................................................
2.2 First Amendment to Asset Purchase Agreement and Agreement
and Plan of Merger, dated as of February 16, 1996 among Golf
Enterprises, Inc., National Golf Properties, Inc. and GEI
Acquisition Corporation (attached as Annex II to the Joint
Proxy Statement--Prospectus included in this Registration
Statement)..................................................
3.1 Articles of Incorporation of National Golf Properties, Inc.
(incorporated by reference to Exhibit 3.1 to the
Registrant's Current Report on Form 8-K dated September 26,
1995).......................................................
3.2 By-Laws of National Golf Properties, Inc. (incorporated by
reference to Exhibit 3.2 to the Registrant's Current Report
on Form 8-K dated September 26, 1995).......................
4.1 Form of Common Stock Certificate (incorporated by reference
to Exhibit 3.3 to the Registrant's Report on Form 8-B dated
December 29, 1995)..........................................
* 5.1 Opinion of Latham & Watkins as to the legality of the shares
being registered............................................
* 8.1 Opinion of Latham & Watkins as to certain tax matters.......
10.1 Agreement of Limited Partnership of National Golf Operating
Partnership, L.P., dated as of August 18, 1993, by and
among National Golf Properties, Inc. and the Persons named
therein as Limited Partners (incorporated by reference to
Exhibit 10.1 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995)................
10.2 Form of Lease Agreement between National Golf Properties,
Inc. and American Golf Corporation with respect to the
Initial Golf Courses and the Mesquite and Desert Lakes golf
courses (incorporated by reference to Exhibit 10.2 to the
Registrant's Registration Statement on Form S-11 No. 33-
63110)......................................................
10.3 Form of Lease Agreement between National Golf Properties,
Inc. and American Golf Corporation with respect to the
following golf courses: Southwyck, Dub's Dread, Kokopelli,
Summitpointe, Lake Wilderness, Links at Northfork, Hershey,
Hershey South, Canyon Oaks, Capitol City, Binks Forest, Port
Royal, Shipyard, Sugar Ridge, Wildhorse, Goshen Plantation,
Hickory Heights, River's Edge, Berry Creek, Carmel Mountain,
Creekside, Honey Bee, Wood Ranch, Monterey, Palm Valley,
Ruffled Feathers, Upland Hills, Oregon Golf, Golden Oaks,
Seven Springs and Sea Cliff; and Form of Lease Agreement
between National Golf Properties, Inc. and CGG with respect
to the Carmel Mountain golf course (incorporated by
reference to Exhibit 10.3 to the Registrant's Annual Report
on Form 10-K for the fiscal year ended December 31, 1995)..
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Exhibit Numbered
Number Description Page
- ------ ----------- --------
<C> <S> <C>
10.4 Registration Rights Agreement, made and entered into as of
August 18, 1993, by and among National Golf Properties, Inc.
and the persons named therein (incorporated by reference to
Exhibit 10.4 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995)................
10.5 Shelf Registration Rights Agreement, made and entered into
as of August 18, 1993, by and among National Golf
Properties, Inc. and the persons named therein (incorporated
by reference to Exhibit 10.5 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1995).......................................................
10.6 National Golf Properties, Inc. Stock Incentive Plan Key
Employees of National Golf Properties, Inc., National Golf
Operating Partnership, L.P. and American Golf Corporation,
effective August 18, 1993 (incorporated by reference to
Exhibit 10.6 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995)................
10.7 Indemnification Agreement, made as of August 18, 1993, by
and between National Golf Properties, Inc. and its directors
and officers (incorporated by reference to Exhibit 10.7 to
the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995)...............................
10.8 Employment Agreements, dated August 18, 1993, between
National Golf Properties, Inc. and each of Richard C. Price
and Edward R. Sause (incorporated by reference to Exhibit
10.8 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995)........................
10.9 Director Designation Agreement, dated as of August 18, 1993
by and among David G. Price, National Golf Properties, Inc.
and National Golf Operating Partnership, L.P. (incorporated
by reference to Exhibit 10.9 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1995).......................................................
10.10 Services Agreement, entered into as of August 18, 1993, by
and between National Golf Properties, Inc. and National Golf
Operating Partnership, L.P. (incorporated by reference to
Exhibit 10.10 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995)................
10.11 Senior Secured Promissory Notes and Guarantees related to
the Option Golf Courses, each made and entered into as of
August 18, 1993, between National Golf Properties, Inc. and
The Price Revocable Trust (incorporated by reference to
Exhibit 10.11 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995)................
10.12 First Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing relating to each of the Senior Secured
Participating Promissory Notes, each made as of August 18,
1993, by and among The Price Revocable Trust and National
Golf Operating Partnership, L.P. (incorporated by reference
to Exhibit 10.12 to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1995)...........
10.13 Partnership Interests Exchange Agreement, dated as of August
18, 1993, by and among National Golf Operating Partnership,
L.P. and Partners of Partnerships Controlling 21 Courses
(incorporated by reference to Exhibit 10.13 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995)....................................
10.14 Agreement for Transfer of Realty and Assets, dated as of
August 18, 1993, by and among The Price Revocable Trust,
Myreshan, Inc. and National Golf Operating Partnership, L.P.
(incorporated by reference to Exhibit 10.14 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995)....................................
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Exhibit Numbered
Number Description Page
- ------ ----------- --------
<C> <S> <C>
10.15 Plan and Agreement of Merger, dated as of August 18, 1993,
by and among Bear Creek Enterprises, Inc., National Golf
Properties, Inc., The Price Revocable Trust and David G.
Price (incorporated by reference to Exhibit 10.15 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995)...................................
10.16 Partnership Interests Acquisition Agreement, dated as of
August 18, 1993, by and among The Price Revocable Trust,
American Golf Investment, Inc., Supermarine Aviation,
Limited, David G. Price and National Golf Properties, Inc.
(incorporated by reference to Exhibit 10.16 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995)....................................
10.17 Contribution Agreement, dated as of August 18, 1993, by and
between National Golf Operating Partnership, L.P. and
National Golf Properties, Inc. (incorporated by reference to
Exhibit 10.17 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995)................
10.18 Option Courses Agreement, dated as of August 18, 1993, by
and among David G. Price, The Price Revocable Trust, Black
Lake/Penasquitos, David G. Price, American Golf Corporation
and National Golf Operating Partnership, L.P. (incorporated
by reference to Exhibit 10.18 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1995).......................................................
10.19 Agreement relating to prohibition on acquisitions of golf
courses by David G. Price and his affiliates, made and
entered into as of August 18, 1993, by and among National
Golf Properties, Inc., National Golf Operating Partnership,
L.P., American Golf Corporation, David G. Price, Dallas P.
Price and The Price Revocable Trust (incorporated by
reference to Exhibit 10.19 to the Registrant's Annual Report
on Form 10-K for the fiscal year ended December 31, 1995)...
10.20 Amendment to agreement relating to prohibition on
acquisitions of golf courses by David G. Price and his
affiliates among National Golf Properties, Inc., National
Golf Operating Partnership, L.P., American Golf Corporation,
David G. Price, Dallas P. Price and The Price Revocable
Trust (incorporated by reference to Exhibit 10 to the
Registrant's Quarterly Report on Form 10-Q/A for the period
ended September 30, 1995)...................................
10.21 Note Purchase Agreement ("Note Purchase Agreement"), dated
as of December 15, 1994, with respect to National Golf
Operating Partnership, L.P.'s Series A 8.68% Guarantied
Senior Promissory Notes due December 15, 2004 and Series B
8.73% Guarantied Senior Promissory Notes due June 15, 2005
(incorporated by reference to Exhibit 10.21 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995)....................................
10.22 Series A 8.68% Guarantied Senior Promissory Notes and Series
B 8.73% Guarantied Senior Promissory Notes (incorporated by
reference to Exhibit 10.22 to the Registrant's Annual Report
on Form 10-K for the fiscal year ended December 31, 1995)...
10.23 General Continuing Guaranty of National Golf Properties, Inc.
("General Continuing Guaranty"), dated as of December 15,
1994, with respect to National Golf Operating Partnership,
L.P.'s Series A 8.68% Guarantied Senior Promissory Notes due
December 15, 2004 and Series B 8.73% Guarantied Senior
Promissory Notes due June 15, 2005 (incorporated by
reference to Exhibit 10.16 to the Registrant's Report on
Form 8-B dated December 29, 1995)...........................
10.24 First Amendment to Note Purchase Agreements, dated as of
August 31, 1995 (incorporated by reference to Exhibit 10.24
to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995)........................
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Exhibit Numbered
Number Description Page
- ------ ----------- --------
<C> <S> <C>
10.25 First Amendment to General Continuing Guarantee, dated as of
August 31, 1995 (incorporated by reference to Exhibit 10.18
to the Registrant's Report on Form 8-B dated December 29,
1995).......................................................
10.26 Agreement of Limited Partnership of Royal Golf, L.P., II,
dated as of July 7, 1994 (incorporated by reference to
Exhibit 10.19 to the Registrant's Report on Form 8-B dated
December 29, 1995)..........................................
10.27 Amended and Restated Loan Agreement, dated as of July 7,
1994, between Royal Golf, L.P., II and NationsBank of South
Carolina, N.A. (incorporated by reference to Exhibit 10.20
to the Registrant's Report on Form 8-B dated December 29,
1995).......................................................
10.28 Credit Agreement among Bank of America National Trust and
Savings Association, National Golf Operating Partnership,
L.P. and National Golf Properties, Inc. dated as of
September 29, 1993, as amended (incorporated by reference to
Exhibit 10.21 to the Registrant's Report on Form 8-B dated
December 29, 1995)..........................................
10.29 Agreement to Enter Into Leases, entered into as of February
1, 1996, by and among National Golf Properties, Inc.,
National Golf Operating Partnership and American Golf
Corporation (incorporated by reference to Exhibit 10.29 to
the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995)...............................
10.30 Lease Agreement between National Golf Paradise Hills Golf
Course Properties, Inc. and Golf (incorporated by reference
to Enterprises, Inc. with respect to Exhibit 10.2 to the
Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1996)................................
10.31 Expense Allocation Agreement between National Golf
Properties, Inc. and GEI Acquisition Corporation, dated
February 2, 1996 (incorporated by reference to Exhibit 10.4
to the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1996)......................
*10.32 Amendment No.4 to Credit Agreement dated as of April 1,
1996, among Bank of America National Trust and Savings
Association, National Golf Operating Partnership, L.P. and
National Golf Properties, Inc...............................
11.1 Statement regarding computation of per share earnings
(incorporated by reference to Exhibit 11.1 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995)....................................
21.1 List of Subsidiaries of National Golf Properties, Inc.
(incorporated by reference to Exhibit 22.1 to the
Registrant's Report on Form 8-B dated December 29, 1995)....
*23.1 Consent of KPMG Peat Marwick LLP............................
*23.2 Consent of Coopers & Lybrand L.L.P..........................
*23.3 Consent of Latham & Watkins ................................
*27.1 Financial Data Schedule
*99.1 Form of NGP Proxy Card
*99.2 Form of GEI Proxy Card
</TABLE>
- ---------------------
* - Filed herewith
II-6
<PAGE>
ITEM 22. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(b) The undersigned Registrant hereby undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this Registration Statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c),
the issuer undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other Items of the applicable form.
(c) The undersigned Registrant undertakes that every prospectus (i) that is
filed pursuant to paragraph (b) immediately preceding, or (ii) that
purports to meet the requirements of section 10(a)(3) of the Securities Act
and is used in connection with an offering of securities subject to Rule
415, will be filed as a part of an amendment to this Registration Statement
and will not be used until such amendment is effective, and that, for
purposes of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(d) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
as is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(e) The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant
to Item 4, 10(b), 11, or 13 of this form, within one business day of
receipt of such request, and to send the incorporated documents by first
class mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of this
Registration Statement through the date of responding to the request.
(f) The undersigned Registrant hereby undertakes to supply by means of a post-
effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in this Registration Statement when it became effective.
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Santa Monica, State of California, on June 21, 1996.
National Golf Properties, Inc.
By: /s/ EDWARD R. SAUSE
------------------------------------
Edward R. Sause
Executive Vice President
Chief Financial Officer and Director
II-8
<PAGE>
[LETTERHEAD OF LATHAM & WATKINS]
EXHIBIT 5.1
June 21, 1996
National Golf Properties, Inc.
1448 15th Street, Suite 200
Santa Monica, California 90404
Re: Registration Statement No. 333- ; Maximum of
---------------------------------------------------
2,128,000 shares of Common Stock, par value $.01 per share.
-----------------------------------------------------------
Ladies and Gentlemen:
In connection with the registration by National Golf Properties, Inc.,
a Maryland corporation (the "Company"), of a maximum of 2,128,000 shares of
common stock of the Company, par value $.01 per share (the "Shares"), under the
Securities Act of 1933, as amended (the "Act"), on Form S-4 filed with the
Securities and Exchange Commission (the "Commission") on June 21, 1996 (File No.
333-_____) (the "Registration Statement"), you have requested our opinion with
respect to the matters set forth below.
In our capacity as your counsel in connection with such registration,
we are familiar with the proceedings taken and proposed to be taken by the
Company in connection with the authorization, issuance and sale of the Shares,
and for the purposes of this opinion, have assumed such proceedings will be
timely completed in the manner presently proposed. In addition, we have made
such legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as we have deemed necessary
or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity to authentic original documents of all documents submitted to us as
copies.
We are opining herein as to the effect on the subject transaction only
of the internal laws of the State of Maryland, and we express no opinion with
respect to the applicability thereto, or the effect thereon, of the laws of any
other jurisdiction or as to any matters of municipal law or the laws of any
other local agencies within the state.
Subject to the foregoing, it is our opinion that the Shares have been
duly authorized, and, upon issuance, delivery and payment therefor in the manner
contemplated by the Registration Statement, will be validly issued, fully paid
and nonassessable.
<PAGE>
National Golf Properties, Inc.
June 21, 1996
Page 2
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm contained under the
heading "Legal Opinions."
Very truly yours,
LATHAM & WATKINS
<PAGE>
[LETTERHEAD OF LATHAM & WATKINS]
EXHIBIT 8.1
June 21, 1996
National Golf Properties, Inc.
1448 15th Street, Suite 200
Santa Monica, California 90404
Re: Registration Statement on Form S-4
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to National Golf Properties, Inc., a Maryland
corporation (the "Company"), in connection with the registration by the Company
of up to 2,128,000 shares of common stock of the Company, par value $.01 per
share, under the Securities Act of 1933, as amended, on Form S-4 filed with the
Securities and Exchange Commission (the "Commission") on June 21, 1996 (File No.
333-_____) (in the form declared effective, the "Registration Statement"), and
in connection with the Asset Purchase and the Merger (as such terms are defined
in the Registration Statement).
In our capacity as counsel to the Company, we have made such legal and
factual examinations and inquiries, including an examination of originals or
copies certified or otherwise identified to our satisfaction of such documents,
corporate records and other instruments, as we have deemed necessary or
appropriate for purposes of this opinion. In our examination, we have assumed
the authenticity of all documents submitted to us as originals, the genuineness
of all signatures thereon, the legal capacity of natural persons executing such
documents and the conformity to authentic original documents of all documents
submitted to us as copies.
This opinion is based on various assumptions, and is conditioned upon
certain representations made by the Company as to factual matters through a
certificate of an officer of the Company (the "Officer's Certificate"). Also,
this opinion is based upon the factual representations of the Company concerning
its business and properties as set forth in the Registration Statement. In
addition, we have relied, with your permission, exclusively upon the opinion of
Ballard Spahr Andrews & Ingersoll, counsel for the Company dated June 21, 1996,
with respect to certain matters of Maryland law. Furthermore, we have assumed
that the Asset Purchase and the Merger will be consummated pursuant to
<PAGE>
the terms of the Acquisition Agreement (as such term is defined in the
Registration Statement), including the exhibits thereto.
We are opining herein as to the effect on the subject transaction only
of the federal income tax laws of the United States and we express no opinion
with respect to the applicability thereto, or the effect thereon, of other
federal laws, the laws of any other jurisdiction or as to any matters of
municipal law or the laws of any other local agencies within any state.
Based upon the facts set forth in the Registration Statement and the
Officer's Certificate, it is our opinion that the information set forth under
the caption "Material Federal Income Tax Consequences" in the Joint Proxy
Statement - Prospectus included within the Registration Statement, to the extent
that such information constitutes matters of law, summaries of legal matters, or
legal conclusions, has been reviewed by us and is correct in all material
respects. In addition, the opinions set forth under the caption "Material
Federal Tax Consequences-Opinions of Counsel" in the Joint Proxy Statement -
Prospectus are hereby confirmed as the opinions of Latham & Watkins.
No opinion is expressed as to any matter not discussed herein.
This opinion is based on various statutory provisions, regulations
promulgated thereunder and interpretations thereof by the Internal Revenue
Service and the courts having jurisdiction over such matters, all of which are
subject to change either prospectively or retroactively. Also, any variation or
difference in the facts from those set forth in the Registration Statement or
the Officer's Certificate may affect the conclusions stated herein.
This opinion is rendered only to you and is solely for your benefit
and the benefit of Golf Enterprises, Inc. and its stockholders (collectively,
the "Parties") in connection with the transactions covered hereby. This opinion
may not be relied upon by the Parties for any other purpose, or furnished to,
quoted to, or relied upon by any other person, firm or corporation for any
purpose, without our prior written consent.
Very truly yours,
LATHAM & WATKINS
<PAGE>
- --------------------------------------------------------------------------------
EXHIBIT 10.32
[LOGO OF BANK OF AMERICA] AMENDMENT TO DOCUMENTS
- --------------------------------------------------------------------------------
AMENDMENT NO. 4 TO CREDIT AGREEMENT
This Amendment No. 4 (the "Amendment") dated as of April 1, 1996, among Bank
of America National Trust and Savings Association, a national banking
association ("Bank") and National Golf Operating Partnership, L.P., a Delaware
limited partnership ("Borrower"), and National Golf Properties, Inc., a
Delaware corporation (the "REIT").
RECITALS
--------
A. The parties hereto entered into a certain Credit Agreement dated as of
September 29, 1993, as previously amended (the "Agreement").
B. The parties hereto desire to further amend the Agreement.
AGREEMENT
---------
1. Definitions. Capitalized terms used but not defined in this Amendment
-----------
shall have the meaning given to them in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
----------
2.1 In the definition of "Availability Period" in Article 1 of the
Agreement, the date "July 1, 1996" is substituted for the date "April 1, 1996".
3. Effect of Amendment. Except as provided in this Amendment, all of the
-------------------
terms and conditions of the Agreement shall remain in full force and effect.
This Amendment is executed as of the date stated at the beginning of this
Amendment.
Bank of America National Golf Operating Partnership, L.P.
National Trust and Savings Association
By: National Golf Properties, Inc.
Its General Partner
X /s/ SHERYL BOND X /s/ EDWARD R. SAUSE
--------------------------------- -----------------------------------
By: Sheryl Bond, Vice President By: Edward R. Sause
Title: Executive Vice President
and Chief Financial Officer
National Golf Properties, Inc.
X /s/ EDWARD R. SAUSE
-----------------------------------
By: Edward R. Sause
Title: Executive Vice President
and Chief Financial Officer
- --------------------------------------------------------------------------------
-1-
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Golf Enterprises, Inc.:
We consent to the use of our reports included in this registration statement on
Form S-4 of National Golf Properties, Inc., and to the references to our firm
under the heading "Experts" in the registration statement.
KPMG Peat Marwick LLP
Dallas, Texas
June 21, 1996
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
National Golf Properties, Inc. on Form S-4 of our report dated February 28,
1996, on our audits of the consolidated financial statements and financial
statement schedule of National Golf Properties, Inc. as of December 31, 1995 and
1994 and for the years then ended and the period August 18, 1993 through
December 31, 1993 and the combined financial statements of Golf Properties Group
(Predecessor Affiliates) for the period January 1, 1993 through August 17, 1993,
which report is included in Amendment No. 2 to the Annual Report on Form 10-K/A.
We also consent to the inclusion in the registration statement of National Golf
Properties, Inc. on Form S-4 of our report dated March 1, 1996, on our audit of
the combined financial statements of Golf Enterprises, Inc. and Subsidiaries'
Business Related to the Purchased Assets as of December 31, 1995 and for the
year then ended.
We also consent to the incorporation by reference in the registration statement
of National Golf Properties, Inc. on Form S-4 of our report dated February 28,
1996, on our audits of the consolidated financial statements of American Golf
Corporation and Subsidiaries as of December 31, 1995 and 1994 and for the years
then ended and the ten month period ended December 31, 1993, which report is
included in Amendment No. 2 to the Annual Report on Form 10-K/A. We also
consent to the references to our Firm under the caption "Experts."
Coopers & Lybrand L.L.P.
Los Angeles, California
June 20, 1996
<PAGE>
EXHIBIT 23.3
CONSENT OF LATHAM & WATKINS
National Golf Properties, Inc.
We consent to your filing our legal opinion regarding certain tax matters as an
exhibit to the Registration Statement and to the reference to our firm contained
under the headings "Material Federal Income Tax Consequences" and "Legal
Opinions."
LATHAM & WATKINS
June 21, 1996
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS YEAR
<FISCAL-YEAR-END> DEC-31-1996 DEC-31-1995
<PERIOD-START> JAN-01-1996 JAN-01-1995
<PERIOD-END> MAR-31-1996 DEC-31-1995
<CASH> 817 1,108
<SECURITIES> 0 0
<RECEIVABLES> 3,065 3,440
<ALLOWANCES> 127 133
<INVENTORY> 1,920 1,692
<CURRENT-ASSETS> 5,771 6,175
<PP&E> 91,860 87,254
<DEPRECIATION> (14,455) (11,134)
<TOTAL-ASSETS> 86,711 85,848
<CURRENT-LIABILITIES> 5,106 4,502
<BONDS> 0 0
0 0
0 0
<COMMON> 0 0
<OTHER-SE> 32,236 32,801
<TOTAL-LIABILITY-AND-EQUITY> 86,711 85,848
<SALES> 2,348 12,781
<TOTAL-REVENUES> 8,583 40,678
<CGS> 1,286 6,399
<TOTAL-COSTS> 6,953 29,622
<OTHER-EXPENSES> 0 0
<LOSS-PROVISION> 23 192
<INTEREST-EXPENSE> 934 3,506
<INCOME-PRETAX> (613) 959
<INCOME-TAX> (245) 384
<INCOME-CONTINUING> (368) 575
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (368) 575
<EPS-PRIMARY> 0 0
<EPS-DILUTED> 0 0
</TABLE>
<PAGE>
EXHIBIT 99.1
NATIONAL GOLF PROPERTIES, INC.
ANNUAL MEETING OF STOCKHOLDERS -- JULY 25, 1996
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned stockholder of NATIONAL GOLF PROPERTIES, INC., a Maryland
corporation ("NGP"), revoking all prior proxies, does hereby nominate,
constitute and appoint Richard C. Price and Edward R. Sause, or either of
them, the true and lawful proxies, agents and attorneys-in-fact of the
undersigned, with full power of substitution to vote all shares of common
stock of NGP, standing in the name of the undersigned on NGP's books at the
close of business on April 30, 1996, at the Annual Meeting of Stockholders to
be held at the Museum of Flying, 2772 Donald Douglas Loop North, Santa Monica,
California on July 25, 1996 at 9:00 a.m. local time (or at any adjournments or
postponements thereof) (the "Annual Meeting"), with all the powers which would
be possessed by the undersigned if personally present, upon the following
proposals described in the accompanying Joint Proxy Statement--Prospectus
dated June 21, 1996 (the "Joint Proxy Statement--Prospectus").
(Continued and to be signed on other side)
<PAGE>
Please mark
your votes
as in this [X]
example
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE STOCK ISSUANCE CONTEMPLATED
BY PROPOSAL 1 BELOW AND "FOR" THE ELECTION OF THE NAMED NOMINEES.
1. Proposal to approve the issuance of up to 2,128,000 shares of NGP Common
Stock as partial consideration for NGP's purchase of 20 golf course
properties and related assets owned by Golf Enterprises, Inc. ("GEI")
pursuant to an Asset Purchase Agreement and Agreement and Plan of Merger
dated as of February 2, 1996, as amended ("The Acquisition Agreement")
among NGP, GEI Acquisition Corporation and GEI.
FOR AGAINST ABSTAIN
[_] [_] [_]
2. Election of Directors To vote for all of the following nominees: John C.
Cushman III, Charles S. Paul, Edward R. Sause.
For all nominees except: _______________
FOR WITHHOLD
[_] [_]
3. In their discretion, to vote on any other matter that may properly come
before the Annual Meeting and at any adjournments or postponements thereof.
PLEASE FILL IN, DATE, SIGN AND MAIL THIS PROXY
CARD IN THE ENCLOSED ENVELOPE AS SOON AS
POSSIBLE TO ENSURE RECEIPT PRIOR TO THE ANNUAL
MEETING. THE ENCLOSED ENVELOPE REQUIRES NO
POSTAGE IF MAILED IN THE UNITED STATES.
IF NO CONTRARY INSTRUCTION IS INDICATED ABOVE, THIS PROXY WILL BE VOTED FOR
APPROVAL OF THE STOCK ISSUANCE CONTEMPLATED BY THE ACQUISITION AGREEMENT AND
FOR ELECTION OF THE NAMED NOMINEES.
The undersigned hereby acknowledges receipt of the accompanying Notice of An-
nual Meeting of Stockholders dated June 26, 1996 and the Joint Proxy State-
ment--Prospectus.
I PLAN TO ATTEND THE ANNUAL MEETING. [_]
Signature(s) ____________________________ Date _______________________ , 1996
Note: Please sign name exactly as your name (or names) appears printed in the
space above. When signing as attorney, executor, administrator, trustee or
guardian, please give full title. If more than one trustee, all should
sign. All joint owners must sign.
<PAGE>
EXHIBIT 99.2
GOLF ENTERPRISES, INC.
SPECIAL MEETING OF STOCKHOLDERS -- JULY 25, 1996
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned stockholder of GOLF ENTERPRISES, INC., a Kansas Corporation
("GEI"), revoking all prior proxies, does hereby nominate, constitute and
appoint Robert H. Williams and John H. Berndsen, or either of them, the true
and lawful proxies, agents and attorneys-in-fact of the undersigned, with full
power of substitution to vote all shares of common stock of GEI, standing in
the name of the undersigned on GEI's books at the close of business on June 4,
1996, at the Special Meeting of Stockholders to be held at the Doubletree
Hotel at Park West, 1590 LBJ Freeway, Dallas, Texas on July 25, 1996 at 10:00
a.m. local time (or at any adjournments or postponements thereof) (the
"Special Meeting"), with all the powers which would be possessed by the
undersigned if personally present, upon the following proposals described in
the accompanying Joint Proxy Statement--Prospectus dated June 21, 1996 (the
"Joint Proxy Statement--Prospectus").
(Continued and to be signed on other side)
<PAGE>
Please mark
your votes
as in this [X]
example
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE ADOPTION AND APPROVAL OF
THE AGREEMENT DESCRIBED IN PROPOSAL 1 BELOW AND THE TRANSACTIONS CONTEMPLATED
THEREBY, INCLUDING THE ASSET PURCHASE AND THE MERGER.
1. Proposal to adopt and approve the Asset Purchase Agreement and Agreement
and Plan of Merger dated as of February 2, 1996, as amended (The
"Acquisition Agreement") among GEI, National Golf Properties, Inc. and GEI
Acquisition Corporation, and the transactions contemplated thereby,
including the Asset Purchase and the Merger.
FOR AGAINST ABSTAIN
[_] [_] [_]
2. In their discretion, to vote on any other matter that may properly come
before the Special Meeting and at any adjournments or postponements
thereof.
PLEASE FILL IN, DATE, SIGN AND MAIL THIS PROXY
CARD IN THE ENCLOSED ENVELOPE AS SOON AS
POSSIBLE TO ENSURE RECEIPT PRIOR TO THE SPECIAL
MEETING. THE ENCLOSED ENVELOPE REQUIRES NO
POSTAGE IF MAILED IN THE UNITED STATES.
IF NO CONTRARY INSTRUCTION IS INDICATED ABOVE, THIS PROXY WILL BE VOTED FOR
ADOPTION AND APPROVAL OF THE ACQUISITION AGREEMENT AND THE TRANSACTIONS CON-
TEMPLATED THEREBY, INCLUDING THE ASSET PURCHASE AND THE MERGER.
The undersigned hereby acknowledges receipt of the accompanying Notice of Spe-
cial Meeting of Stockholders dated June 26, 1996 and the Joint Proxy State-
ment--Prospectus.
I PLAN TO ATTEND THE SPECIAL MEETING. [_]
Signature(s) ____________________________ Date _______________________ , 1996
Note: Please sign name exactly as your name (or names) appears printed in the
space above. When signing as attorney, executor, administrator, trustee or
guardian, please give full title. If more than one trustee, all should
sign. All joint owners must sign.
